Walking-Working Surfaces and Personal Protective Equipment (Fall Protection Systems), 82494-83006 [2016-24557]

Download as PDF 82494 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations DEPARTMENT OF LABOR Occupational Safety and Health Administration 29 CFR Part 1910 [Docket No. OSHA–2007–0072] RIN 1218-AB80 Walking-Working Surfaces and Personal Protective Equipment (Fall Protection Systems) Occupational Safety and Health Administration (OSHA), Labor. ACTION: Final rule. AGENCY: 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 walkingworking 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 srobinson on DSK5SPTVN1PROD with RULES6 SUMMARY: VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 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 https://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 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: I. 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 II. Analysis of Risk A. Introduction B. Nature of the Risk C. Fatality and Injury Data III. Pertinent Legal Authority IV. Summary and Explanation of the Final Rule A. Final Subpart D B. Final § 1910.140 PO 00000 Frm 00002 Fmt 4701 Sfmt 4700 C. Other Revisions to 29 CFR Part 1910 V. 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 I. Sensitivity Analyses J. References VI. Federalism VII. State-Plan Requirements VIII. Unfunded Mandates Reform Act IX. Consultation and Coordination With Indian Tribal Governments X. Office of Management and Budget Review Under the Paperwork Reduction Act of 1995 XI. Dates I. 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 https://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 E:\FR\FM\18NOR7.SGM 18NOR7 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations srobinson on DSK5SPTVN1PROD with RULES6 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 https://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, VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 particularly hazards related to falls from elevations, the final rule updates and revises the general industry WalkingWorking 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. PO 00000 Frm 00003 Fmt 4701 Sfmt 4700 82495 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, § 1910.140 drew personal fall arrest system requirements from Appendix C (Mandatory) of the Powered Platform standard (§ 1910.66). The experience OSHA gained on that standard shows that those requirements are effective in protecting workers from fall hazards. 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 nonmandatory appendices to final § 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 walkingworking 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 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). E:\FR\FM\18NOR7.SGM 18NOR7 82496 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations consensus standards, most equipment manufacturers already provide equipment and systems that meet the requirements of the final rule. 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. D. Events Leading to the Final Rule 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. 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. VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 C. Summary of the Final Economic Analysis PO 00000 Frm 00004 Fmt 4701 Sfmt 4700 E:\FR\FM\18NOR7.SGM 18NOR7 ER18NO16.096</GPH> srobinson on DSK5SPTVN1PROD with RULES6 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 srobinson on DSK5SPTVN1PROD with RULES6 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 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 walkingworking 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 VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 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 (§ 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). PO 00000 Frm 00005 Fmt 4701 Sfmt 4700 82497 II. 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: ‘‘[S]afe’’ 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, E:\FR\FM\18NOR7.SGM 18NOR7 82498 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 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 walkingworking 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 (§§ 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 (§§ 1910.30, 1910.132(f)). After employers have assessed the workplace and identified fall hazards, final § 1910.28 requires employers to provide fall protection to protect their employees from falls. Final §§ 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. 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 threedigit NAICS codes affected by the standard, BLS reported the highest number of fatal falls in NAICS code 561, VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 PO 00000 Frm 00006 Fmt 4701 Sfmt 4700 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. E:\FR\FM\18NOR7.SGM 18NOR7 ER18NO16.097</GPH> srobinson on DSK5SPTVN1PROD with RULES6 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 lostworkday (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. Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 82499 Injuries. OSHA examined lostworkday 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 lostworkday 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 (lostworkday) 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. 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. VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 PO 00000 Frm 00007 Fmt 4701 Sfmt 4725 E:\FR\FM\18NOR7.SGM 18NOR7 ER18NO16.098</GPH> srobinson on DSK5SPTVN1PROD with RULES6 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. 82500 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 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). srobinson on DSK5SPTVN1PROD with RULES6 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: [H]istorical 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 VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 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 PO 00000 Frm 00008 Fmt 4701 Sfmt 4700 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 lostworkday 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 § 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 lostworkday 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 E:\FR\FM\18NOR7.SGM 18NOR7 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 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). srobinson on DSK5SPTVN1PROD with RULES6 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. III. 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 VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 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)). IV. 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 PO 00000 Frm 00009 Fmt 4701 Sfmt 4700 82501 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 E:\FR\FM\18NOR7.SGM 18NOR7 82502 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations corresponding sections in the existing subpart: Section 1910.21—Scope and Definitions 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 (§ 1910.21(b)). Walkingworking 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 Final § 1910.21 establishes the scope of and defines the terms used in 29 CFR part 1910, subpart D—Walking-Working Surfaces. srobinson on DSK5SPTVN1PROD with RULES6 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. VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 PO 00000 Frm 00010 Fmt 4701 Sfmt 4700 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., § 1910.22—General requirements; § 1910.24(a)—Fixed industrial stairs; § 1910.25(a)—Portable wood ladders; § 1910.27(e)(3)—Fixed ladders; § 1910.29(a)(1)—Manually E:\FR\FM\18NOR7.SGM 18NOR7 ER18NO16.099</GPH> compliance. The following table lists the sections in final subpart D and the srobinson on DSK5SPTVN1PROD with RULES6 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 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 § 1910.22(a) for discussion of combustible dust.) Verallia commented that the proposed scope, combined with the proposed definition of ‘‘walking-working surfaces’’ (§ 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 walkingworking surfaces in final § 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 § 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 § 1910.21(a) the following VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 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 § 1910.28 (see discussion in final § 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 § 1910.23 and final § 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 § 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 walkingworking 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 PO 00000 Frm 00011 Fmt 4701 Sfmt 4700 82503 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 § 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 § 1910.23(a)(1))). Agricultural operations. The final rule, like the proposal, covers walkingworking 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 E:\FR\FM\18NOR7.SGM 18NOR7 82504 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations srobinson on DSK5SPTVN1PROD with RULES6 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)). 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, postharvesting 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 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)). VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 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 fallrelated 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 PO 00000 Frm 00012 Fmt 4701 Sfmt 4700 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 E:\FR\FM\18NOR7.SGM 18NOR7 srobinson on DSK5SPTVN1PROD with RULES6 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 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 walkingworking 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 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. VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 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. 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 PO 00000 Frm 00013 Fmt 4701 Sfmt 4700 82505 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, ‘‘[T]he number of employees required to work atop rolling stock is minimal (<1%)’’ (Ex. OSHA–S029–2006–0662–0320; see also Exs. 148 (NGFA—‘‘At best, a small percentage of the employees . . . are exposed); 181 (American Truck Dealers/ National Automobile Dealers Association (ATD/NADA)—less than 10 percent of employees)). Other stakeholders, however, including some who oppose requiring fall protection, said a significant number/percentage of employees must climb on or access the tops of rolling stock and motor vehicles to perform a wide range of tasks, including loading/ unloading, tarping, maintenance and repair, inspections, sampling, snow and ice removal, and other tasks (e.g., Exs. 63; 121; 158; OSHA–S029–2006–0662– 0350). For instance, Clear Channel Outdoors (CCO) said that nearly 80 percent of their field employees climb on motor vehicles (Ex. 121). Ferro Corporation estimated that almost onehalf of employees at a typical plant climb onto the top of rolling stock and bulk trucks to perform tasks (Ex. OSHA– S029–2006–0662–0177). Second, a number of stakeholders stated that fall protection is not necessary on rolling stock and motor vehicles because worker exposure to fall hazards is limited. Several stakeholders said exposure is ‘‘infrequent,’’ ‘‘brief and sporadic’’ (Exs. 124; 181; 183; 187; E:\FR\FM\18NOR7.SGM 18NOR7 82506 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations OSHA–S029–2006–0662–0124; OSHA– S029–2006–0662–0183; OSHA–S029– 2006–0662–0237). Other stakeholders maintain exposure to fall hazards on rolling stock and motor vehicles is more frequent and widespread. For example, Dynamic Scientific Controls (DSC) said fall hazards are present ‘‘daily in almost every plant that receives and ships’’ products (Ex. OSHA–S029–2006–0662– 0227; see also Exs. 307; 329 (1/20/2011, p. 142)). Third, some stakeholders assert fall protection is not necessary on rolling stock and motor vehicles because the heights employees climb do not pose fall hazards. For instance, ATA said the height of most commercial vehicle trailers is no more than 49 to 50 inches (e.g., ‘‘step-downs’’ and ‘‘low boys’’), which only nominally exceeds the 4foot trigger (Ex. 187). Other stakeholders, however, reported that workers must climb significantly higher than 50 inches on motor vehicles, particularly tanker and hopper trucks, to perform tasks, some of which are the tasks they perform most frequently (e.g., Exs. 130; 198; 307; OSHA–S029–2006– 0662–0208). Even where workers only climb 49 to 50 inches onto a trailer or flatbed truck, some stakeholders said there is a risk of serious injury from falls (Exs. 63; 302; 329 (1/20/2011, pgs. 156– 60)). Fourth, a number of stakeholders said fall protection is not necessary because no or few injuries from falls off rolling stock and motor vehicles have occurred in their establishments or industry (Exs. 63; 121; 148; 162; 181; 237; OSHA– S029–2006–0662–0219; OSHA–S029– 2006–0662–0237; OSHA–S029–2006– 0662–0252; OSHA–S029–2006–0662– 0320). Douglas Greenhaus, with ATD/ NADA, said: I’ve spent over twenty-five years working with truck dealerships on matters involving employee health and safety. In that time, I have only rarely heard of injuries arising from falls from commercial trucks, tractors, or trailers (Ex. 181. See also, OSHA–S029– 2006–0662–0237). srobinson on DSK5SPTVN1PROD with RULES6 The Cargo Tank Risk Management Committee (CTRMC) stated: While falls from the top of tank trailers can result in serious injury, the actual frequency of such injuries is very rare. A typical large cargo tank motor vehicle fleet makes over 300 delivers per day and has averaged less than 2 falls from its tank trailers per year (Ex. 63). Stakeholders pointed out that industry surveys also show falls from rolling stock and motor vehicles were low. McNeilus Trucking reported that a 2002 Illinois Ready Mix Concrete Association survey found only two falls from ready-mix concrete trucks VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 occurred in over 66 million climbs (Ex. OSHA–S029–2006–0662–0219). According to an International Liquid Terminals Association’s (ILTA) 2010 annual survey, six of the 221 (2.7%) injuries were falls from rolling stock and motor vehicles, which ‘‘represent a very small proportion of the total number of recordable incidents’’ (Ex. 335). A NGFA survey of 901 facilities showed that during a two-year period (2007–09), during which the facilities handled 1.5 million railcars and 1.4 million motor vehicles, no fatalities and only 12 injuries occurred (Ex. 148). By contrast, a number of stakeholders said falls from rolling stock and motor vehicles are a serious problem that have resulted in worker deaths and serious injuries (e.g., Exs. 130; 155; 257; 302; 307; 329 (1/20/2011, pgs. 142, 150,151– 152, 156–57); 335; 355–11; OSHA– S029–2006–0662–0207). In the rail transportation industry, Fall Protection Systems Corp. (FPS) reported that they documented, based on site visits and speaking to customers, more than 50 falls in a 10-year period, 14 of which resulted in death and 30 in serious injuries. Stakeholders reported a similar experience in the truck transportation industry. For example, Rick Hunter, of the Alabama Trucking Association Workers Compensation Fund, said: Each year drivers and shop [technicians] are injured from falls from tankers and flatbed trailers. I know of 4 deaths from this type fall in Alabama’’ (Ex. 257). Cameron Baker, with Standfast USA, testified that one truck company with more than 900 drivers, reported an average of 31 falls per year during a nine-year period (1998–2006) (Exs. 329 (1/20/2011, pgs. 151–52); 355–11). He estimated that the total cost to the company for those fall injures was $3.33 million (Ex. 355–11). Standfast also submitted information indicating that rolling stock and motor vehicle fall injuries are increasing (Ex. 355–11). Fifth and finally, a number of stakeholders said employers already are using effective measures to protect workers on rolling stock and motor vehicles and requiring additional measures in the final rule will not increase worker safety (e.g., Exs. 63; 121; 124; 142; 147; 148; 158; 162; 169; 181; 190; 335). The measures these stakeholders are using include: • 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 PO 00000 Frm 00014 Fmt 4701 Sfmt 4700 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., bottomloading 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 E:\FR\FM\18NOR7.SGM 18NOR7 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 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: [T]he 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). srobinson on DSK5SPTVN1PROD with RULES6 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 VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 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 ‘‘technologyforcing,’’ that is, giving industry a reasonable amount of time to develop new technologies (Lead I, 647 F.2d at 1264).5 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 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). PO 00000 Frm 00015 Fmt 4701 Sfmt 4700 82507 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. . . . [W]hen 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 E:\FR\FM\18NOR7.SGM 18NOR7 82508 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 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: srobinson on DSK5SPTVN1PROD with RULES6 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 VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 companies and associations, also pointed to the increasing use of bottomloading 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; PO 00000 Frm 00016 Fmt 4701 Sfmt 4700 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’’: [T]he 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 E:\FR\FM\18NOR7.SGM 18NOR7 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 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)). 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: srobinson on DSK5SPTVN1PROD with RULES6 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, ‘‘[i]n the past, FRA and OSHA have closely coordinated their mutual efforts to improve workplace safety in the rail industry’’ and OSHA ‘‘is committed to 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)). VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 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’’: PO 00000 Frm 00017 Fmt 4701 Sfmt 4700 82509 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.’’ . . . [D]eterminations 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 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: • Nature of the work. Equipment reinstalled or replaced with identical equipment is generally maintenance. 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. 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. E:\FR\FM\18NOR7.SGM 18NOR7 srobinson on DSK5SPTVN1PROD with RULES6 82510 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 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 §§ 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 VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 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 § 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 (§ 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 § 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, PO 00000 Frm 00018 Fmt 4701 Sfmt 4700 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 E:\FR\FM\18NOR7.SGM 18NOR7 srobinson on DSK5SPTVN1PROD with RULES6 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations standards (e.g., §§ 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 § 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 § 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 VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 supporting the impact forces applied by a fall protection system. OSHA drew the term and definition for ‘‘anchorage’’ from the § 1910.140, Personal fall protection systems. The definition is consistent with the construction fall protection (§ 1926.500(b)), the general industry powered platforms (§§ 1910.66, appendix C, Section I(b)), and the shipyard-employment fall protection standards (§ 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 § 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 § 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 PO 00000 Frm 00019 Fmt 4701 Sfmt 4700 82511 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 (§ 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 § 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 § 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 (§§ 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 E:\FR\FM\18NOR7.SGM 18NOR7 srobinson on DSK5SPTVN1PROD with RULES6 82512 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 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 § 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 § 1910.23(g)(6) to incorporate language from the construction standards for fall protection, stairways, and ladders standards (§§ 1926.450(b); 1926.500(b); and 1926.1050(b)). These standards specify that the employer has the VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 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-selfsupporting and is adjustable in length. The final rule consolidates into one term, and simplifies the language in, the definitions in existing § 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 § 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 (§§ 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. PO 00000 Frm 00020 Fmt 4701 Sfmt 4700 Fall hazard. This term, in the final rule, means any condition on a walkingworking 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 § 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 § 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 E:\FR\FM\18NOR7.SGM 18NOR7 srobinson on DSK5SPTVN1PROD with RULES6 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 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 § 1910.23(a)(2). The final definition, as revised, is consistent with OSHA’s stairways and ladders standard for construction (§ 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. ‘‘HandHandhold 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 § 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. VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 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 (§§ 1926.450(b) and 1926.500(b)). The proposed and final definition simplify the existing definitions in § 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 walkingworking 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 (§ 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 §§ 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 § 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. PO 00000 Frm 00021 Fmt 4701 Sfmt 4700 82513 Hoist area. In the final rule, like the proposal, a hoist area is defined as any elevated access opening to a walkingworking 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 § 1910.21(a)(1)), floor opening (existing § 1910.21(a)(2)), wall hole (existing § 1910.21(a)(10)), and wall opening (existing § 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 walkingworking 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 § 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 § 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 § 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. E:\FR\FM\18NOR7.SGM 18NOR7 srobinson on DSK5SPTVN1PROD with RULES6 82514 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 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 (§ 1910.24). Therefore, the final definition excludes manhole steps from the individual-rung ladder definition to prevent any confusion and emphasize that final § 1910.24, not final § 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 § 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 § 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 § 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’’ VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 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 § 1910.21(e)(13) uses a similar term, ‘‘ladder safety device,’’ which also excludes ladder cages and wells. OSHA’s construction ladder standard in § 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 fullbody 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 PO 00000 Frm 00022 Fmt 4701 Sfmt 4700 rule in § 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 § 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. Lowslope 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 § 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 § 1910.28(b)(13)), which is consistent with the construction fall protection standard in § 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 § 1926.500(b). The construction standards for scaffolds, and stairways and ladders, also have similar definitions (§§ 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 ‘‘individualrung ladders’’ as stated in the final definition of ‘‘fixed ladders.’’ Manhole steps also do not include manhole entry E:\FR\FM\18NOR7.SGM 18NOR7 srobinson on DSK5SPTVN1PROD with RULES6 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations ladders which are portable and are covered in final § 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 § 1910.21(f)(19) and the construction standards for scaffolds, and stairways and ladders in §§ 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 walkingworking 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 walkingworking 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 §§ 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. VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 The existing rule defines ‘‘mobile’’ as manually propelled (existing § 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 §§ 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 § 1910.23 establishes requirements for ladder stand steps (final §§ 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 PO 00000 Frm 00023 Fmt 4701 Sfmt 4700 82515 platforms.’’ 11 Frequently employers use mobile ladder stand platforms to provide elevated standing or working surfaces for one or more employees. 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 § 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 § 1910.21(a)(10) and (a)(11). This consolidation makes the final definition of ‘‘opening’’ consistent with the construction fall protection standard 11 OSHA notes that the existing general industry rule includes the terms ‘‘platform ladder’’ and ‘‘mobile work platform.’’ Existing § 1910.21(d)(5) defines ‘‘platform ladder’’ as a ‘‘self-supporting ladder of fixed steps with a platform provided at the working level.’’ Existing § 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. E:\FR\FM\18NOR7.SGM 18NOR7 srobinson on DSK5SPTVN1PROD with RULES6 82516 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations (§ 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 walkingworking 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 § 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 final definition is consistent with OSHA’s construction standards for scaffolds and fall protection in §§ 1926.450(b) and 1926.500(b), respectively, and ANSI/ASSE Z359.0– 2012 (Section 2.98). See the preamble to final § 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 § 1910.140 12 OSHA notes the final rule prohibits the use a body belt as part of a personal fall arrest system (final § 1910.140(d)(3)). VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 (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 § 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 § 1910.21(a)(4) and the construction scaffold standard in § 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 selfsupporting 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, selfsupporting, 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 PO 00000 Frm 00024 Fmt 4701 Sfmt 4700 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 § 1910.140(b). The newly revised electric power generation, transmission, and distribution standard in § 1910.269, and the construction standard for fall protection in § 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 workpositioning 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 § 1910.140(b), as well as several construction standards (§§ 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 (§ 1910.66, Appendix C, Section I(b)) and ANSI/ ASSE Z359.0–2012. The § 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 E:\FR\FM\18NOR7.SGM 18NOR7 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations § 1910.66 (Exs. 155; 206). Mr. Ellis urged OSHA to adopt the § 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 § 1910.66 definition ‘‘is a good one’’: srobinson on DSK5SPTVN1PROD with RULES6 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 § 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 §§ 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 VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 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 PO 00000 Frm 00025 Fmt 4701 Sfmt 4700 82517 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 § 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., E:\FR\FM\18NOR7.SGM 18NOR7 srobinson on DSK5SPTVN1PROD with RULES6 82518 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 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 § 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 VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 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 ‘‘walkingworking 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 (§ 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 cranesuspended 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 § 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 PO 00000 Frm 00026 Fmt 4701 Sfmt 4700 commenters opposed characterizing rope descent systems as a type of singlepoint 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 § 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 E:\FR\FM\18NOR7.SGM 18NOR7 srobinson on DSK5SPTVN1PROD with RULES6 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations a vertical pole in a winding fashion within a cylindrical space.’’ OSHA drew the definition from the construction standards for stairways and ladders (see § 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 § 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 § 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 § 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, VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 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 § 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 § 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. PO 00000 Frm 00027 Fmt 4701 Sfmt 4700 82519 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 selfsupporting, 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 § 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 selfsupporting, 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 (§ 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 E:\FR\FM\18NOR7.SGM 18NOR7 srobinson on DSK5SPTVN1PROD with RULES6 82520 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations consistent with the construction standards for stairways and ladders (see § 1926.1050(b)) and ANSI A14.3–2008 (Section 3). The final definition clarifies the existing rule in § 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 VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 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 § 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 § 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 walkingworking surface. OSHA drew the definition from final § 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 § 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 § 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 PO 00000 Frm 00028 Fmt 4701 Sfmt 4700 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 § 1910.23(c)(1), is consistent with the definition of the term in OSHA construction standards (see §§ 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 heightspecification language in the proposed rule. This language is not necessary because final § 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 E:\FR\FM\18NOR7.SGM 18NOR7 srobinson on DSK5SPTVN1PROD with RULES6 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations surfaces,’’ but the final definition is similar to the definition for ‘‘walkingworking surface’’ in the construction standard for fall protection in § 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 walkingworking 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 § 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 §§ 1910.28(b)(13) and 1910.29(d)). A VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 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 § 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 § 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 § 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 § 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 PO 00000 Frm 00029 Fmt 4701 Sfmt 4700 82521 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 § 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 § 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 walkingworking surfaces (paragraph (b)); • Access to and egress from walkingworking 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 § 1910.22, as well as all other sections of final subpart D, uses the term ‘‘walking-working surface.’’ Final § 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. Walkingworking surfaces include, but are not limited to, floors, stairways, roofs, ladders, runways, walkways, dockboards, aisles, and step bolts. In final § 1910.22, as in other sections of final subpart D, OSHA revised the existing language so it is performancebased 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 E:\FR\FM\18NOR7.SGM 18NOR7 82522 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations srobinson on DSK5SPTVN1PROD with RULES6 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 § 1910.22 that address specific issues or hazards rather than general conditions. For example, OSHA moved the existing guardrail and covers requirements (existing § 1910.22(c)) to final §§ 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 mechanicalhandling equipment in existing paragraph (b) because § 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 ‘‘[a]ll 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 ‘‘walkingworking 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 § 1910.22(a), especially § 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 [§ 1910.22(a)] standard is not limited to tripping and falling hazards, but may be applied to significant accumulation of combustible VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 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 § 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, § 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 § 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 13 Combustible Dust in Industry: Preventing and Mitigating the Effects of Fire and Explosion available from OSHA’s Web site at: https:// www.osha.gov/dts/shib/shib073105.html. 14 Hazard Alert: Combustible Dust Explosions available from OSHA’s Web site at: https:// www.osha.gov/OshDoc/data_General_Facts/ OSHAcombustibledust.pdf. 15 Combustible Dust National Emphasis Program available from OSHA’s Web site at: https:// www.osha.gov/pls/oshaweb/owadisp.show_ document?p_table=DIRECTIVES&p_id=3830. PO 00000 Frm 00030 Fmt 4701 Sfmt 4700 National Emphasis Program,’’ (October 2009)).16 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 § 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 § 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 § 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 § 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 § 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 § 1910.22(a) applies to combustible dust because the Agency instructed its compliance officers to cite § 1910.22(a)(1) and 16 Status Report on Combustible Dust National Emphasis Program available from OSHA’s Web site at: https://www.osha.gov/dep/combustible_dust/ combustible_dust_nep_rpt_102009.html. E:\FR\FM\18NOR7.SGM 18NOR7 srobinson on DSK5SPTVN1PROD with RULES6 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 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 § 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 (§ 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 § 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 § 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 § 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 § 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 § 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 § 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 § 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 § 1910.22(a)(1) would be ‘‘redundant and possibly conflicting’’ when OSHA ‘‘re-regulate[s] these same dusts in the VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 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 § 1910.22(a)(1) and a combustible dust rule to avoid any conflicts. 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, multivariable 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 § 1910.22(a)(1) and (2) do not address issues such as ‘‘[h]ow much [combustible dust] is too much?’’; ‘‘[w]hat must an employer do at what dust level?’’; and ‘‘[s]hould 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 § 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 § 1910.22(a)(1) as an effective enforcement tool in general industry 17 See OSHA’s Spring 2016 Reg Agenda on Combustible Dust at: https://www.reginfo.gov/ public/do/ eAgendaViewRule?pubId=201604&RIN=1218AC41. PO 00000 Frm 00031 Fmt 4701 Sfmt 4700 82523 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 dustrelated violations pertained to housekeeping (§ 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 § 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 § 1910.22(a)(1) is invalid because the national consensus standard (ANSI Z4.1–1968) from which OSHA adopted § 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 § 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 E:\FR\FM\18NOR7.SGM 18NOR7 82524 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 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 § 1910.22(a)(1) only addresses sanitation hazards would mean that OSHA could not use § 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 § 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 [§ 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: srobinson on DSK5SPTVN1PROD with RULES6 We reject Pratt & Whitney’s contention that the scope of [§ 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 § 1910.22(a)(1) because it would subject their industry to ‘‘duplicative VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 and unnecessary requirements’’ that OSHA’s Grain Handling Facilities standard (§ 1910.272) already addresses and, therefore, would cause confusion. They said § 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 (§ 1910.272) may account for some of the reduction in explosions, notably grain-mediated combustibledust 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 § 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 § 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 § 1910.22(a)(1) to grain-handling facilities. Finally, USBSA explained that referencing combustible dust in § 1910.22(a)(1) could conflict with §§ 1910.307 (Electrical-Hazardous (classified) locations) and 1910.178 (Powered industrial trucks), stating: [A]pplying 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 § 1910.22(a) (Ex. 166). In response, OSHA reiterates that § 1910.22(a)(1) already applies to combustible dust. Existing § 1910.22(a) PO 00000 Frm 00032 Fmt 4701 Sfmt 4700 generally addresses combustible dust hazards on walking-working surfaces, while §§ 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 (§ 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: E:\FR\FM\18NOR7.SGM 18NOR7 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations srobinson on DSK5SPTVN1PROD with RULES6 ‘‘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 § 1910.132(a), employers already must provide PPE for hazards that they VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 cannot eliminate or control by other methods (Ex. 159). OSHA finds the commenters’ arguments convincing and, therefore, did not add the language in § 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 § 1910.22, and paragraph (a)(3) specifically, also covers walkingworking 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, PO 00000 Frm 00033 Fmt 4701 Sfmt 4700 82525 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 ‘‘[t]o 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: ‘‘[P]roposed 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. . . . [T]he 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: [T]he 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 ‘‘[t]he term may have a different meaning to a small business owner than it does to an OSHA inspector’’ (Ex. 173). E:\FR\FM\18NOR7.SGM 18NOR7 82526 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations Second, they said the proposed rule is ‘‘impossible to meet’’ and ‘‘virtually meaningless for compliance purposes,’’ noting: srobinson on DSK5SPTVN1PROD with RULES6 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 VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 ‘‘[t]here 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 § 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 walkingworking 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 § 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. PO 00000 Frm 00034 Fmt 4701 Sfmt 4700 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 § 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 walkingworking 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 § 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 § 1910.22(d)(2)). Final paragraph (b) also replaces the specification requirements in existing § 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) Loadlimit 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 ‘‘[d]esigned, constructed, and maintained to support their maximum intended load’’ (proposed paragraph (b)(1)), and ‘‘[n]ot loaded beyond their maximum intended load’’ (proposed paragraph (b)(2)). E:\FR\FM\18NOR7.SGM 18NOR7 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 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 § 1910.22(b), achieves the result AFSCME advocates. The definition of ‘‘maximum intended load’’ in final § 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)): srobinson on DSK5SPTVN1PROD with RULES6 [E]mployers 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 walkingworking surface (existing § 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 VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 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 walkingworking 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: 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 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. PO 00000 Frm 00035 Fmt 4701 Sfmt 4700 82527 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 preassigned 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). E:\FR\FM\18NOR7.SGM 18NOR7 srobinson on DSK5SPTVN1PROD with RULES6 82528 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations Since 1994, the current construction fall protection standard has required employers performing construction activities to ‘‘determine if the walkingworking surfaces on which its employees are to work have the strength and structural integrity to support employees safely’’ (§ 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 walkingworking 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 walkingworking 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 walkingworking 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 walkingworking surface can support the load they will place on it, OSHA believes VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 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. existing § 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 (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 (§ 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 walkingworking 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 § 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 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 walkingworking 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 PO 00000 Frm 00036 Fmt 4701 Sfmt 4700 E:\FR\FM\18NOR7.SGM 18NOR7 srobinson on DSK5SPTVN1PROD with RULES6 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 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 walkingworking 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 walkingworking 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 § 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’’ VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 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 § 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 PO 00000 Frm 00037 Fmt 4701 Sfmt 4700 82529 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 walkingworking 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 § 1910.21(b)). The definition in the final rule is the same as other OSHA standards (e.g., §§ 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). E:\FR\FM\18NOR7.SGM 18NOR7 82530 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations Section 1910.23—Ladders 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). srobinson on DSK5SPTVN1PROD with RULES6 Charles Lankford commented: Final § 1910.23 revises and consolidates into one section the existing ladder requirements in §§ 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 § 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 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). VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 PO 00000 Frm 00038 Fmt 4701 Sfmt 4700 requirements in the final rule that OSHA drew from those standards. OSHA notes that final § 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 § 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 E:\FR\FM\18NOR7.SGM 18NOR7 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations srobinson on DSK5SPTVN1PROD with RULES6 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 § 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 § 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 § 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; § 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 § 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 VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 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 ‘‘exercise[s] 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., §§ 1910.25 (Portable wood ladders) and 1910.29 (Manually propelled mobile ladder stands and scaffold (towers))). Existing § 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, aisleway step ladders, shelf ladders, and PO 00000 Frm 00039 Fmt 4701 Sfmt 4700 82531 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 § 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 (§ 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 §§ 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, E:\FR\FM\18NOR7.SGM 18NOR7 srobinson on DSK5SPTVN1PROD with RULES6 82532 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 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 (§ 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 verticalspacing 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 (§ 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 (§ 1910.268(h)(6)). In addition, three maritime standards specify that rungs be spaced between 9 to 16.5 inches apart (§§ 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 VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 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 (§ 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 § 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 PO 00000 Frm 00040 Fmt 4701 Sfmt 4700 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 (§ 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 (§ 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 (§§ 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 §§ 1910.25(c)(2)(i)(c)); 1910.27(b)(1)(iii); 1910.29; and current § 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 (§ 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 E:\FR\FM\18NOR7.SGM 18NOR7 srobinson on DSK5SPTVN1PROD with RULES6 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 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 VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 (§ 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 § 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 (§ 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’’ (§ 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 PO 00000 Frm 00041 Fmt 4701 Sfmt 4700 82533 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 manufacturerapplied 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 (§ 1910.26(a)(1)), and is consistent with a similar provision in the existing fixed ladder standard (§ 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 (§ 1910.26(a)(i)) makes the final rule clearer and better reflects the purpose of this provision. E:\FR\FM\18NOR7.SGM 18NOR7 srobinson on DSK5SPTVN1PROD with RULES6 82534 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 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 §§ 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 § 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 ‘‘[p]roper 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 (§§ 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 VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 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 (§ 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 § 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’’ (§§ 1910.25(d)(1)(x) and 1910.27(f)). OSHA’s construction ladder standard requires employers to inspect ladders ‘‘on a periodic basis’’ (§ 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 (§ 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’’ (§ 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). PO 00000 Frm 00042 Fmt 4701 Sfmt 4700 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 § 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 E:\FR\FM\18NOR7.SGM 18NOR7 srobinson on DSK5SPTVN1PROD with RULES6 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 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 § 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 performancebased 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 § 1910.145. In addition, final paragraph (b)(10) requires that employers remove defective ladders from service until the employer repairs them in accordance with § 1910.22(d) or replaces them. Final § 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 § 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 (§§ 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 (§§ 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 VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 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 (§ 1926.1053(b)(16)), and the existing general industry portable wood ladders standard requires employers to replace frayed rope (§ 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 §§ 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 § 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 § 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 (§ 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 (§ 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 PO 00000 Frm 00043 Fmt 4701 Sfmt 4700 82535 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 (§ 1926.1053(b)(21)). The final provision also is consistent with ANSI ladder standards. 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, ‘‘[F]alls 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 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. E:\FR\FM\18NOR7.SGM 18NOR7 srobinson on DSK5SPTVN1PROD with RULES6 82536 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 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 (§ 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 (§ 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). VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 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. PO 00000 Frm 00044 Fmt 4701 Sfmt 4700 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 E:\FR\FM\18NOR7.SGM 18NOR7 srobinson on DSK5SPTVN1PROD with RULES6 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations ‘‘pull[ing] the object up or lower[ing] 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 VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 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 (§ 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 § 1910.25) and portable metal ladders (existing § 1910.26), thereby eliminating unnecessary repetition. Second, it allowed OSHA to remove the exceptions in existing § 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 PO 00000 Frm 00045 Fmt 4701 Sfmt 4700 82537 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 skidresistant material, or otherwise treated to minimize the possibility of slipping. Final paragraph (c)(1) is the same as OSHA’s construction ladder standard (§ 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 (§§ 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 (§ 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 (§§ 1910.25(c)(2)(i)(f) and 1910.26(a)(3)(viii)). OSHA believes that final § 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. E:\FR\FM\18NOR7.SGM 18NOR7 srobinson on DSK5SPTVN1PROD with RULES6 82538 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 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 § 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 walkingworking 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 § 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 (§ 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 § 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. VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 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 selfsupporting 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’’ (§§ 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 § 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 (§ 1926.1053(b)(6)), and is consistent with OSHA’s maritime ladder standards (§§ 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 PO 00000 Frm 00046 Fmt 4701 Sfmt 4700 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 (§ 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’’ (§ 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 singlerail 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 E:\FR\FM\18NOR7.SGM 18NOR7 srobinson on DSK5SPTVN1PROD with RULES6 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 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 (§ 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 (§ 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 VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 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 (§ 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 (§ 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 (§ 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 PO 00000 Frm 00047 Fmt 4701 Sfmt 4700 82539 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 (§ 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, selfsupporting 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 (§ 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 (§ 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 E:\FR\FM\18NOR7.SGM 18NOR7 srobinson on DSK5SPTVN1PROD with RULES6 82540 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 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 (§ 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 (§ 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 3foot 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 aftermarket 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 20 OSHA letter to Mr. Bruce Clark available at: https://www.osha.gov/pls/oshaweb/owadisp.show_ document?p_table=INTERPRETATIONS&p_ id=25177. VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 extensions to meet the requirement of final paragraph (c)(11), provided that the ladders meet these requirements. 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 § 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 § 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 § 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 PO 00000 Frm 00048 Fmt 4701 Sfmt 4700 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 ladderleveling 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 ladderleveling 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 §§ 1910.22 and 1910.23 (e.g., final paragraphs (b)(8) and (c)(4)) are applicable when employers use ladderleveling 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 jobmade 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 (§ 1910.21(b)). Fixed ladders do not include ship stairs, stepbolts, or manhole steps. Final paragraph (d)(1), like the proposed rule, establishes a E:\FR\FM\18NOR7.SGM 18NOR7 srobinson on DSK5SPTVN1PROD with RULES6 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations performance-based provision requiring that employers ensure any fixed ladder a worker uses is capable of supporting the maximum intended load. As discussed in § 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’’ (§ 1910.21(b)). The performance-based language in final (d)(1) replaces the detailed specification requirements in the existing rules (§ 1910.27(a)(1)(i) through (iv) and (a)(2)). OSHA requested comment on whether the Agency should retain the specification requirements in existing § 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 (§ 1910.27(a)(1)). After additional analysis, OSHA decided to adopt proposed paragraph (d)(1), and not retain existing § 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 VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 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 (§ 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’’ (§ 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 (§ 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 PO 00000 Frm 00049 Fmt 4701 Sfmt 4700 82541 fixed ladders, before permitting any worker to use the equipment (§ 1910.30(b)(1)). One of OSHA’s goals in revising the existing rule (§ 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 (§ 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 § 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 ‘‘[r]edesigning 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 (§ 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 (§ 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 E:\FR\FM\18NOR7.SGM 18NOR7 srobinson on DSK5SPTVN1PROD with RULES6 82542 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 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 § 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 (§ 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 (§ 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 (§ 1926.1053(a)(25)) and A14.3–2008 (Section 5.3.2.2). VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 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 (§ 1926.1053(a)(25)). OSHA did not receive any comments on the proposed provision. Final paragraph (d)(6), like the proposed rule, adopts a performancebased revision of the existing rule for side-step ladders (§ 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 (§ 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 (§ 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 (§ 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 PO 00000 Frm 00050 Fmt 4701 Sfmt 4700 manhole steps are not considered ladders in this rule and are covered in a separate section (final § 1910.24). OSHA did not receive any comments on the proposed provision. Final paragraph (d)(8), like the existing (§ 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., ‘‘Handhold 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 E:\FR\FM\18NOR7.SGM 18NOR7 srobinson on DSK5SPTVN1PROD with RULES6 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 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 (§ 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 (§ 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 (§ 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 VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 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 (§ 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 stepacross 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 § 1910.27(c)(6) in several ways. First, the final rule establishes specific stepacross distances for each through and side-step ladder (§ 1910.27(c)(6)). The existing rule establishes a single stepacross 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 (§ 1910.27(d)(1)) that requires employers to provide a landing platform PO 00000 Frm 00051 Fmt 4701 Sfmt 4700 82543 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 (§ 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 (§ 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 (§ 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 § 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 (§ 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 ‘‘[w]hen unavoidable obstructions are encountered.’’ The final rule allows a reduction of the minimum clearance to 24 inches in those cases, provided that E:\FR\FM\18NOR7.SGM 18NOR7 82544 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 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 (§ 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). srobinson on DSK5SPTVN1PROD with RULES6 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 90degree 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 §§ 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 performancebased revision of the design and use requirements in the existing rule (§ 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 VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 performance desired,’’ final paragraph (e) does not incorporate the testing requirements in either the existing OSHA rule or ANSI standard (e.g., § 1910.29(f)(5); A14.7–2011 (Section 5)). For purposes of the final rule, final § 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 (§ 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 ‘‘[t]he 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 (§ 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 ‘‘[a]n 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: PO 00000 Frm 00052 Fmt 4701 Sfmt 4700 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 equipmentdesign 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 (§ 1910.29); and (2) A14.7–2011. Final paragraph (e)(1)(i), like the existing (§ 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 E:\FR\FM\18NOR7.SGM 18NOR7 srobinson on DSK5SPTVN1PROD with RULES6 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 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 (§ 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 slipresistance 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 VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 ensure that steps and platforms on mobile ladder stands and platforms remain slip resistant (i.e., ‘‘[t]he 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 (§ 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 § 1910.29(a)(4). The PO 00000 Frm 00053 Fmt 4701 Sfmt 4700 82545 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 (§ 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 § 1910.21(b)) is similar to the definition of ‘‘design working load’’ in the existing rule (see § 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 (§ 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 E:\FR\FM\18NOR7.SGM 18NOR7 srobinson on DSK5SPTVN1PROD with RULES6 82546 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 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 (§ 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. VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 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 (§ 1910.29(a)(3)(i) and (f)(2); proposed paragraph (e)(1)(v)), requires that employers ensure the maximum worksurface 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 § 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. PO 00000 Frm 00054 Fmt 4701 Sfmt 4700 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 (§ 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 E:\FR\FM\18NOR7.SGM 18NOR7 srobinson on DSK5SPTVN1PROD with RULES6 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations ‘‘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 (§ 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) VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 from the ANSI standard (A14.7–2011, Section 4.3.6). The existing OSHA rule (§ 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 specialuse 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 PO 00000 Frm 00055 Fmt 4701 Sfmt 4700 82547 expanded the existing requirements on mobile ladder stands in § 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 § 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 E:\FR\FM\18NOR7.SGM 18NOR7 srobinson on DSK5SPTVN1PROD with RULES6 82548 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 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 walkingworking 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 (§ 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 § 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 § 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 § 1910.29(k)(1) to ensure workers on the ground are not hit by falling objects. The toeboards must, consistent with the requirements of § 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; VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 • 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 § 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 § 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’’ (§ 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’’ (§ 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)); PO 00000 Frm 00056 Fmt 4701 Sfmt 4700 • 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 § 1910.24 replace the step bolt, pole step, and manhole step provisions in the existing Telecommunications standard (§ 1910.268(h)), and final § 1910.23 replaces the ladder requirements in § 1910.268(h). Thus, the final rule deletes those requirements from § 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 § 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 E:\FR\FM\18NOR7.SGM 18NOR7 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 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 § 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. srobinson on DSK5SPTVN1PROD with RULES6 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 VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 not require the worker to manipulate or handle objects when climbing. OSHA addressed in final § 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 (§ 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 § 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 hotdip 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 PO 00000 Frm 00057 Fmt 4701 Sfmt 4700 82549 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 § 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 § 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 (§ 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 (§ 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). E:\FR\FM\18NOR7.SGM 18NOR7 srobinson on DSK5SPTVN1PROD with RULES6 82550 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 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 18inch 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 § 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 § 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 VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 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 (§ 1910.268(h)(2)); 1990 proposed § 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 PO 00000 Frm 00058 Fmt 4701 Sfmt 4700 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 § 1910.23(d)(2), the construction ladders standard (§ 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 E:\FR\FM\18NOR7.SGM 18NOR7 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations retrofitting step bolts that currently meet the maximum intended load requirements in final § 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 walkingworking surface at any one time’’ (§ 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 (§ 1910.268(h)(1)), and is consistent with 1990 proposed § 1910.24(c)(2). The ANSI/TIA 222–G– 2005 standard establishes strength specifications: srobinson on DSK5SPTVN1PROD with RULES6 A load factor, aL = 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 (§ 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 § 1910.22(b). That said, employers must VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 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 § 1910.24(c)(1), which specified that ‘‘[e]ach 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 5⁄8inch diameter, but OSHA notes that 1⁄2inch 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 PO 00000 Frm 00059 Fmt 4701 Sfmt 4700 82551 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 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 21 Available from OSHA’s website at: https:// www.osha.gov/pls/oshaweb/owadisp.show_ document?p_table=INTERPRETATIONS&p_ id=24564. E:\FR\FM\18NOR7.SGM 18NOR7 srobinson on DSK5SPTVN1PROD with RULES6 82552 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 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 § 1910.22. By including the reference to § 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 § 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 § 1910.22(a)(2)). Final paragraph (a)(8) requires that employers address these conditions to maintain step bolts in accordance with § 1910.22. As with the inspection requirements in final § 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 VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 replace the damaged or hazardous step bolt before allowing workers to continue climbing the structure. OSHA notes the proposed rule, like 1990 proposed § 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 § 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 (§ 1910.268(h)(8)). OSHA drew most of the manhole step requirements from the 1990 proposed PO 00000 Frm 00060 Fmt 4701 Sfmt 4700 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 § 1910.21(b). As mentioned in the discussion of final paragraph (a)(6), final § 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 § 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 § 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 § 1910.24, and ASTM C 478–13, with many of the manhole step requirements in 1990 proposed § 1910.24 applying only prospectively (e.g., 1990 proposed § 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 E:\FR\FM\18NOR7.SGM 18NOR7 srobinson on DSK5SPTVN1PROD with RULES6 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 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 (§ 1910.268(h)(8)(v)). The 1990 proposed rule (proposed § 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 (§ 1910.268(h)(8) introductory text and (h)(8)(vi)) and 1990 proposed § 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 (§ 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 corrosionresistant materials or have corrosion- VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 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 § 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 § 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 PO 00000 Frm 00061 Fmt 4701 Sfmt 4700 82553 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 § 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 § 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 § 1910.22. 1990 proposed § 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 E:\FR\FM\18NOR7.SGM 18NOR7 srobinson on DSK5SPTVN1PROD with RULES6 82554 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 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 § 1910.22, which requires inspection of walkingworking 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 § 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 VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 steps that were last inspected almost a year ago. Final paragraph (b)(3) also requires that employers maintain manhole steps in accordance with final § 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 (§ 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 (§ 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 § 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 (§ 1910.21(b)) PO 00000 Frm 00062 Fmt 4701 Sfmt 4700 defines a stairway as ‘‘risers and treads that connect one level with another, and includes any landings and platforms in between those levels.’’ Final § 1910.25, like the proposed rule, covers all stairways, including standard, ship, spiral, and alternating-tread type stairs, used in general industry (§ 1910.25(a)). OSHA organized final § 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 § 1910.25 easier to understand and follow. Final § 1910.25, like the proposal, replaces the term ‘‘fixed industrial stair’’ in the existing rule with the plainlanguage term ‘‘stairways.’’ In addition, in final § 1910.25, OSHA uses the term, ‘‘standard stairs,’’ that § 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. E:\FR\FM\18NOR7.SGM 18NOR7 srobinson on DSK5SPTVN1PROD with RULES6 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 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, § 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 § 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 § 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 § 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 § 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 VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 motorized equipment. Final paragraph (a) retains the proposed exemption from final § 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 (§ 1910.24) currently covers. For example, the exemption does not apply to equipment such as mobile wellservicing 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)). 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 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.). ‘‘[T]he 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 . . . [T]he 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.). PO 00000 Frm 00063 Fmt 4701 Sfmt 4700 82555 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 § 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 § 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 § 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 § 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 § 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 § 1910.25 specify E:\FR\FM\18NOR7.SGM 18NOR7 srobinson on DSK5SPTVN1PROD with RULES6 82556 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 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 § 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 § 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 § 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 § 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 § 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 (§ 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 VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 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 nonsubstantive changes to increase clarity. Final paragraph (b)(3), like proposed paragraph (a)(4), incorporates the requirement in existing § 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 § 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 § 1910.22 already addresses this hazard. To illustrate, § 1910.22(a)(3) requires employers to maintain walking-working surfaces free of hazards such as spills, and § 1910.22(d)(1) requires employers to maintain walking-working surfaces in a safe condition. Therefore, OSHA is not repeating this requirement in final § 1910.25. Similarly, OSHA believes it is not necessary to include in final § 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 PO 00000 Frm 00064 Fmt 4701 Sfmt 4700 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 § 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 (§ 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 20inch platform depth requirement for existing stairways. Increasing the platform depth requirement to a minimum 22 inches is consistent with E:\FR\FM\18NOR7.SGM 18NOR7 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 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: srobinson on DSK5SPTVN1PROD with RULES6 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 22inch 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 22inch 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 VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 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 treadtype 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 § 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 PO 00000 Frm 00065 Fmt 4701 Sfmt 4700 82557 to Mr. M. Podlovsky, May 8, 2000).23 A ‘‘concentrated load,’’ for the purposes of final paragraph (b)(6), is the loadapplication 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. 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 § 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 (§ 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 § 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 23 OSHA letter to Mr. Podlovsky available at: https://www.osha.gov/pls/oshaweb/owadisp.show_ document?p_table=INTERPRETATIONS&p_ id=23731. E:\FR\FM\18NOR7.SGM 18NOR7 srobinson on DSK5SPTVN1PROD with RULES6 82558 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 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 § 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 § 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 § 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 ‘‘nonstandard stairs’’), but only when employers can demonstrate that it is not feasible to provide standard stairs. The existing rule (existing § 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. VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 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 § 1910.24(e) (Letter to Edward Feege, August 20, 1982 24). 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 treadtype 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: • 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 treadtype 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. 24 Letter to Mr. Feege available from OSHA’s Web site at: https://www.osha.gov/pls/oshaweb/ owadisp.show_document?p_ table=INTERPRETATIONS&p_id=19042. 25 OSHA Instruction STD 01–01–011 is available from OSHA’s Web site at: https://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: https://www.osha.gov/pls/oshaweb/ owadisp.show_document?p_ table=INTERPRETATIONS&p_id=18983. PO 00000 Frm 00066 Fmt 4701 Sfmt 4700 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 (§ 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 . . . [S]ection 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 treadtype 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 m2) 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 E:\FR\FM\18NOR7.SGM 18NOR7 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 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: srobinson on DSK5SPTVN1PROD with RULES6 [I]t 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 nonstandard 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 VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 • 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). 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 27 Available from OSHA’s Web site at: https:// www.osha.gov/pls/oshaweb/owadisp.show_ document?p_table=INTERPRETATIONS&p_ id=25301. PO 00000 Frm 00067 Fmt 4701 Sfmt 4700 82559 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 § 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 § 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 § 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 E:\FR\FM\18NOR7.SGM 18NOR7 82560 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations srobinson on DSK5SPTVN1PROD with RULES6 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 § 1910.25(c)(2) and (3), or if they use a combination that achieves the required angle range of 30 to 50 degrees. The existing rule (§ 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 (§ 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. 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 § 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). VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 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, ‘‘[W]e 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 9.5inch 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 PO 00000 Frm 00068 Fmt 4701 Sfmt 4700 stairs with open risers. OSHA adopted the proposed exception from the 9.5inch 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,] [a]n 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 (§ 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 E:\FR\FM\18NOR7.SGM 18NOR7 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations srobinson on DSK5SPTVN1PROD with RULES6 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 VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 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 PO 00000 Frm 00069 Fmt 4701 Sfmt 4700 82561 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 (§ 1910.21(b)) and design requirements for ship stairs. . . . [W]e 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 § 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 § 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 E:\FR\FM\18NOR7.SGM 18NOR7 srobinson on DSK5SPTVN1PROD with RULES6 82562 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 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), VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 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 § 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 treadtype 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 § 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 (§ 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. PO 00000 Frm 00070 Fmt 4701 Sfmt 4700 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 treadtype 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 E:\FR\FM\18NOR7.SGM 18NOR7 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 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 (§ 1009.13.2). OSHA did not receive any comments on the proposed requirements and adopts the provisions as proposed. srobinson on DSK5SPTVN1PROD with RULES6 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 § 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: • 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 § 1910.26 29 The final rule also deletes the existing requirements for forging machine areas and veneer machinery in existing § 1910.30(b) and (c), respectively. OSHA believes these requirements are not necessary because § 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 (§ 1910.218). VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 applies to all dockboards unless a provision states otherwise. The final rule (final § 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 § 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 § 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 PO 00000 Frm 00071 Fmt 4701 Sfmt 4700 82563 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 § 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 § 1910.21(b), the term ‘‘maximum intended load’’ applies not only to total loads currently applied to a walkingworking 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 § 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 § 1910.26. OSHA included the provision in final § 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 E:\FR\FM\18NOR7.SGM 18NOR7 srobinson on DSK5SPTVN1PROD with RULES6 82564 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 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 runoff 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 23⁄4 in (70 mm) VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 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 PO 00000 Frm 00072 Fmt 4701 Sfmt 4700 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 illconceived. 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: [C]urbing 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 runoff 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 § 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 E:\FR\FM\18NOR7.SGM 18NOR7 srobinson on DSK5SPTVN1PROD with RULES6 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 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 caseby-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. VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 The proposed and final rules expand the existing rule (§ 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 PO 00000 Frm 00073 Fmt 4701 Sfmt 4700 82565 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. Final paragraph (e), like existing § 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 § 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 30 OSHA letter to Mr. Turner available at: https:// www.osha.gov/pls/oshaweb/owadisp.show_ document?p_table=INTERPRETATIONS&p_ id=25161. 31 OSHA letter to Mr. Cole available at: https:// www.osha.gov/pls/oshaweb/owadisp.show_ document?p_table=INTERPRETATIONS&p_ id=28121. E:\FR\FM\18NOR7.SGM 18NOR7 82566 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 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 § 1910.27, like the proposed rule, addresses scaffolds and rope descent systems (RDS) used in general industry. The purpose of § 1910.27 is to protect workers whose duties require them to work at elevation, whether on scaffolds or RDS. The existing standards (§§ 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 singlepoint 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: srobinson on DSK5SPTVN1PROD with RULES6 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 VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 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 § 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 AssistedRescue 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 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 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. PO 00000 Frm 00074 Fmt 4701 Sfmt 4700 §§ 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’’ (§ 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 (§ 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 E:\FR\FM\18NOR7.SGM 18NOR7 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations srobinson on DSK5SPTVN1PROD with RULES6 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’’ (§ 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) (§ 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 The 1991 RDS memorandum specified that employers must use RDS 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: https://www.osha.gov/pls/ oshaweb/owadisp.show_document?p_ table=INTERPRETATIONS&p_id=22722. VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 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 PO 00000 Frm 00075 Fmt 4701 Sfmt 4700 82567 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 . . . . [O]f 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 E:\FR\FM\18NOR7.SGM 18NOR7 82568 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 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). srobinson on DSK5SPTVN1PROD with RULES6 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 VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 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 PO 00000 Frm 00076 Fmt 4701 Sfmt 4700 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 E:\FR\FM\18NOR7.SGM 18NOR7 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 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) (§ 1910.21(b)). As such, final § 1910.27 does not cover or apply to IRAS. However, other sections of the final rule, including § 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: srobinson on DSK5SPTVN1PROD with RULES6 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 tworope 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 § 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 § 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 § 1910.27(b)(2)(iv); 75 FR 28886). OSHA also noted that the 1991 RDS memorandum required that employers rig RDS properly, including having VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 ‘‘sound anchorages’’ (75 FR 28869). Although the proposed rule did not include specific requirements on anchorages for RDS, proposed § 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 PO 00000 Frm 00077 Fmt 4701 Sfmt 4700 82569 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 (§ 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 § 1910.66. • Paragraph (c)(1) of § 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 § 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 § 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). E:\FR\FM\18NOR7.SGM 18NOR7 82570 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations Paragraph (e) of that rule specifies that structural supports, tie-downs, tiein 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 (§ 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: srobinson on DSK5SPTVN1PROD with RULES6 [W]orkers 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 VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 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 § 1910.66(c) or the I–14.1–2001 standard. Regarding his support for following the approach in § 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, PO 00000 Frm 00078 Fmt 4701 Sfmt 4700 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 E:\FR\FM\18NOR7.SGM 18NOR7 srobinson on DSK5SPTVN1PROD with RULES6 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 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 (§ 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: VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 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 (§ 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)). PO 00000 Frm 00079 Fmt 4701 Sfmt 4700 82571 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 E:\FR\FM\18NOR7.SGM 18NOR7 82572 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 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. 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: srobinson on DSK5SPTVN1PROD with RULES6 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: ‘‘[T]he differences of how the winds affect [the ropes] and you, on the roof, and the 35 California Code of Regulations, Title 8 Chapter 4, Subchapter 7 Article 5, § 3286. VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 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; 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 § 28(c)). PO 00000 Frm 00080 Fmt 4701 Sfmt 4700 they had one fatality a month before the code was enacted (Ex. 331). 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 decisionmaking. 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 groundbased system or whatever. You just have to E:\FR\FM\18NOR7.SGM 18NOR7 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 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: srobinson on DSK5SPTVN1PROD with RULES6 [T]here 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 VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 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, hardworking 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 PO 00000 Frm 00081 Fmt 4701 Sfmt 4700 82573 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)). E:\FR\FM\18NOR7.SGM 18NOR7 82574 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 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, § 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: srobinson on DSK5SPTVN1PROD with RULES6 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 300foot 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 VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 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 300foot 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). 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 37 Mr. Adkins said the term ‘‘wind speed’’ refers to wind gusts (‘‘[W]hen 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). PO 00000 Frm 00082 Fmt 4701 Sfmt 4700 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 E:\FR\FM\18NOR7.SGM 18NOR7 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations srobinson on DSK5SPTVN1PROD with RULES6 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 (§ 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. VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 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 § 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 § 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 (§ 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 (§ 1910.30(a)(1)). As final § 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 PO 00000 Frm 00083 Fmt 4701 Sfmt 4700 82575 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 (§ 1910.30(a)(1) and (3)). Moreover, to ensure that the RDS training meets the requirements of § 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 § 1910.30. Accordingly, OSHA does not believe it is necessary to adopt the commenters’ E:\FR\FM\18NOR7.SGM 18NOR7 srobinson on DSK5SPTVN1PROD with RULES6 82576 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 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 VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 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 nonpermanent 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, PO 00000 Frm 00084 Fmt 4701 Sfmt 4700 independent personal fall arrest system, when using an RDS. Final § 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 (§ 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 § 1910.140. This final rule is consistent with other existing OSHA standards (e.g., § 1910.66(j), Powered Platforms for Building Maintenance, Personal Fall Protection; § 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 E:\FR\FM\18NOR7.SGM 18NOR7 srobinson on DSK5SPTVN1PROD with RULES6 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations (seat board) (final § 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. 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 5,000pound 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 § 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 39 OSHA notes that RDS often include tiebacks, but they are not a required component of RDS. VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 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 § 1910.140(c)(21), and generally consistent with the I–14.1 standard (Section 5.7.11). Like § 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 § 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 PO 00000 Frm 00085 Fmt 4701 Sfmt 4700 82577 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 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 selfrescue 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 lifethreatening 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 40 SHIB 03–24–2006 is available from OSHA’s Web site at: https://www.osha.gov/dts/shib/ shib032404.html. E:\FR\FM\18NOR7.SGM 18NOR7 82578 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 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: srobinson on DSK5SPTVN1PROD with RULES6 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, VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 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 § 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 § 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 PO 00000 Frm 00086 Fmt 4701 Sfmt 4700 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. 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 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: https://www.osha.gov/ portable_ladders/oshaweb/owadisp.show_ document?p_table=INTERPRETATIONS&p_ id=22722). E:\FR\FM\18NOR7.SGM 18NOR7 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 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). srobinson on DSK5SPTVN1PROD with RULES6 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. . . . [T]hat 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)). VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 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). PO 00000 Frm 00087 Fmt 4701 Sfmt 4700 82579 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 E:\FR\FM\18NOR7.SGM 18NOR7 srobinson on DSK5SPTVN1PROD with RULES6 82580 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 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 ‘‘destabilized 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 VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 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 PO 00000 Frm 00088 Fmt 4701 Sfmt 4700 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 E:\FR\FM\18NOR7.SGM 18NOR7 srobinson on DSK5SPTVN1PROD with RULES6 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 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 (§ 1910.66) and construction standard on scaffolds (§ 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’’ (§ 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’’ (§ 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? VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 • 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; PO 00000 Frm 00089 Fmt 4701 Sfmt 4700 82581 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, ‘‘[I]t 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: E:\FR\FM\18NOR7.SGM 18NOR7 82582 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations srobinson on DSK5SPTVN1PROD with RULES6 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 [B]lackberry, 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 VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 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 performancebased 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 § 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: [T]here 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 PO 00000 Frm 00090 Fmt 4701 Sfmt 4700 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 E:\FR\FM\18NOR7.SGM 18NOR7 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations srobinson on DSK5SPTVN1PROD with RULES6 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 § 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: • § 1910.28—Duty to have fall protection and falling object protection; • § 1910.29—Fall protection systems and falling object protection—criteria and practices; and • § 1910.30—Training. Final § 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 § 1910.28, and the training workers who use those systems must receive are in §§ 1910.29 and 1910.30, respectively. OSHA notes that § 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 § 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 VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 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 § 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 § 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 PO 00000 Frm 00091 Fmt 4701 Sfmt 4700 82583 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 E:\FR\FM\18NOR7.SGM 18NOR7 82584 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 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). 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: 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: 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). OSHA should not require guardrails as the primary means of fall protection but allow employers the flexibility to choose the most As discussed above, OSHA believes the comprehensive approach to fall protection that the final rule, like the 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). srobinson on DSK5SPTVN1PROD with RULES6 appropriate fall protection system that is appropriate to the specific work situation and activities being performed. [E]mployers 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). VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 PO 00000 Frm 00092 Fmt 4701 Sfmt 4700 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 walkingworking 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 E:\FR\FM\18NOR7.SGM 18NOR7 srobinson on DSK5SPTVN1PROD with RULES6 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 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 §§ 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 (§ 1910.140). These criteria include minimum strength and load, locking, and VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 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 § 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 § 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 § 1910.22(b), which establishes PO 00000 Frm 00093 Fmt 4701 Sfmt 4700 82585 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 § 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 § 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 § 1910.66(j) (final paragraph (a)(2)(iv)); • Aerial lifts covered by § 1910.67(c)(2)(v) (final paragraph (a)(2)(v)); • Telecommunications work covered by § 1910.268(n)(7) and (n)(8) (final paragraph (a)(2)(vi)); and • Electric power generation, transmission, and distribution work covered by § 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 ‘‘catchall’’ 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 E:\FR\FM\18NOR7.SGM 18NOR7 srobinson on DSK5SPTVN1PROD with RULES6 82586 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 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 § 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 (§ 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 VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 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). PO 00000 Frm 00094 Fmt 4701 Sfmt 4700 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 § 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, ‘‘[W]ork 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 E:\FR\FM\18NOR7.SGM 18NOR7 srobinson on DSK5SPTVN1PROD with RULES6 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 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 prework 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 selfretracting lifelines meeting the requirements of § 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 postwork 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 VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 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 (§ 1910.66), aerial lifts (§ 1910.67), telecommunications (§ 1910.268), or electric power generation, transmission, and distribution (§ 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 § 1910.28 should not apply to work that § 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 § 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 PO 00000 Frm 00095 Fmt 4701 Sfmt 4700 82587 positioning systems, but not rest lanyards (final § 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 § 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 § 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 § 1910.21(b)); • Positioning systems (workpositioning 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 § 1910.140(b)); • Handrails—rails used to provide workers a handhold for support (final § 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 § 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 walkingworking surfaces not otherwise addressed (proposed paragraph (b)(13)(ii)). After reviewing the rulemaking record, as well as OSHA’s letters of E:\FR\FM\18NOR7.SGM 18NOR7 srobinson on DSK5SPTVN1PROD with RULES6 82588 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 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 (§ 1926.501(b)(10)), and the use of controlled access zones for overhand bricklaying and related work (§ 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 (§ 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. 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 § 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 42 OSHA letter to Mr. Keith Harkins available at: https://www.osha.gov/pls/oshaweb/owadisp.show_ document?p_table=INTERPRETATIONS&p_ id=24552. VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 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 § 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 (§ 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 § 1910.23(b)(1)(i), (b)(2), (b)(3), (c)(1), (c)(2); § 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 PO 00000 Frm 00096 Fmt 4701 Sfmt 4700 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 wellrecognized requirement. 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 43 OSHA letter to Mr. Osborne available at: https:// 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. E:\FR\FM\18NOR7.SGM 18NOR7 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations level’’ (Ex. 172). Martin’s Window Cleaning said that ‘‘[s]ince 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 longestablished 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). srobinson on DSK5SPTVN1PROD with RULES6 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 VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 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 PO 00000 Frm 00097 Fmt 4701 Sfmt 4700 82589 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 noncompliance, 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 E:\FR\FM\18NOR7.SGM 18NOR7 82590 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations srobinson on DSK5SPTVN1PROD with RULES6 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: • 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 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 (§ 1926.451(g)(1)) require that employers provide fall protection for workers working on a scaffold more than 10 feet above a lower level. VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 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 § 1910.21(b)). Final paragraph (b)(1)(i), similar to the construction fall protection standard (§ 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 (§ 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 PO 00000 Frm 00098 Fmt 4701 Sfmt 4700 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 (§ 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 § 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). . . . E:\FR\FM\18NOR7.SGM 18NOR7 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 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: srobinson on DSK5SPTVN1PROD with RULES6 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 § 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 § 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 VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 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)’’ (§ 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 (§ 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-a-vis rolling stock and motor vehicles in the explanation of final § 1910.21). OSHA notes that employers must document in the fall protection plan the reasons for their determination of infeasibility or greater hazard (§ 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 PO 00000 Frm 00099 Fmt 4701 Sfmt 4700 82591 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: • A written fall protection plan that meets the requirements of § 1926.502(k), including implementing other control measures (§ 1926.502(k)(6) and (8)); and • Training that meets the requirements of § 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 (§ 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 § 1910.21(b)); • Be developed specifically for the site where the employer will perform work on residential roofs (§ 1926.502(k)(1)); • Be maintained up to date (§ 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 (§ 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 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). E:\FR\FM\18NOR7.SGM 18NOR7 82592 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations srobinson on DSK5SPTVN1PROD with RULES6 protection cannot be used (59 FR 40719); • Be implemented under the supervision of a ‘‘competent person’’ (§ 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 (§ 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 (§ 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); • 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 (§ 1926.502(k)(6)); • Implement control measures to reduce or eliminate hazards or implement a safety monitoring system that complies with § 1926.502(h) (§ 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 (§ 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 (§ 1926.502(k)(10)). In the preamble to the construction fall protection standard, OSHA said the 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 § 1926.502(g) (§ 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 § 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. VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 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 § 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 (§ 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 (§ 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 (§ 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 (§ 1926.502(k)(6)). PO 00000 Frm 00100 Fmt 4701 Sfmt 4700 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 § 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 E:\FR\FM\18NOR7.SGM 18NOR7 srobinson on DSK5SPTVN1PROD with RULES6 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 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 § 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’’ (§ 1926.503(a)(1)). The retraining requirements in § 1926.503(c) are essentially the same at those in final § 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) VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 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 ‘‘[t]wo 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 PO 00000 Frm 00101 Fmt 4701 Sfmt 4700 82593 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 ‘‘driv[ing] a nail into the roof and secur[ing] 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 E:\FR\FM\18NOR7.SGM 18NOR7 82594 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 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: srobinson on DSK5SPTVN1PROD with RULES6 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 VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 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 § 1910.21(b)); and • The employer trains authorized workers in accordance with final § 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 PO 00000 Frm 00102 Fmt 4701 Sfmt 4700 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 § 1910.23, § 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, E:\FR\FM\18NOR7.SGM 18NOR7 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 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 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 mobileelevating 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: srobinson on DSK5SPTVN1PROD with RULES6 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: 49 OSHA notes that the definition of ‘‘walkingworking surface’’ in the construction fall protection standard does not include rolling stock and motor vehicles (29 CFR 1926.500(b)). VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 [I]f 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 welladvised 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 (§ 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 ‘‘trailermounted 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 fork-lifted 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 PO 00000 Frm 00103 Fmt 4701 Sfmt 4700 82595 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, trailermounted 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 § 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 E:\FR\FM\18NOR7.SGM 18NOR7 srobinson on DSK5SPTVN1PROD with RULES6 82596 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 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 walkingworking surface through which equipment or materials are loaded or received (final § 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 (§ 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 (§ 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 § 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 § 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). VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 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 § 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 § 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 walkingworking surface, or other similar surface that is at least 2 inches in its least dimension (final § 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, PO 00000 Frm 00104 Fmt 4701 Sfmt 4700 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 § 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 E:\FR\FM\18NOR7.SGM 18NOR7 srobinson on DSK5SPTVN1PROD with RULES6 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations control flexibility than the existing general industry and construction fall protection rules (existing § 1910.23(a)(4), (8), and (9), and § 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 (§ 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 (§ 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 (§ 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 § 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). VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 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 § 1910.29, specifically § 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 § 1910.29 ensures that they will support, without failure, at least twice the maximum intended load that may be imposed on the cover (final § 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 (§ 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 ‘‘selfclosing’’ 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 PO 00000 Frm 00105 Fmt 4701 Sfmt 4700 82597 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 ‘‘selfclosing’’ 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 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) 50 See also Letter to Mr. Stephen Hazelton (5/23/ 2005) that states: [T]he [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. E:\FR\FM\18NOR7.SGM 18NOR7 srobinson on DSK5SPTVN1PROD with RULES6 82598 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 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 selfclosing 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)); • 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 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. VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 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 § 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 chutefloor 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 § 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 PO 00000 Frm 00106 Fmt 4701 Sfmt 4700 • Employers train those workers in accordance with § 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 § 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 walkingworking surface (§ 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 (§ 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 (§ 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 E:\FR\FM\18NOR7.SGM 18NOR7 srobinson on DSK5SPTVN1PROD with RULES6 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 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 (§ 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 VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 § 1910.21(b) adopts the definition of ‘‘dangerous equipment’’ in the construction fall protection standard (§ 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 § 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 § 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 (§ 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 PO 00000 Frm 00107 Fmt 4701 Sfmt 4700 82599 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 E:\FR\FM\18NOR7.SGM 18NOR7 srobinson on DSK5SPTVN1PROD with RULES6 82600 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 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 § 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 § 1910.22(c) as a separate provision, OSHA incorporated into the final definition of dangerous equipment all of the equipment § 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 § 1910.22(c). Second, the final rule allows employers to use controls that provide equivalent or greater protection than the controls specified in existing § 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 § 1910.21(b), like both the proposed and VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 construction (§ 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 walkingworking 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 (§ 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 § 1910.23(b), contains different provisions for different types of wall openings (e.g., chute-wall, windowwall, 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 walkingworking surface, while the existing rule, PO 00000 Frm 00108 Fmt 4701 Sfmt 4700 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 § 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. 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 52 OSHA notes the existing provision (§ 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. E:\FR\FM\18NOR7.SGM 18NOR7 srobinson on DSK5SPTVN1PROD with RULES6 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 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 § 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 § 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 VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 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 ‘‘[t]he 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 PO 00000 Frm 00109 Fmt 4701 Sfmt 4700 82601 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 § 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 (§ 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 (§ 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 E:\FR\FM\18NOR7.SGM 18NOR7 srobinson on DSK5SPTVN1PROD with RULES6 82602 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 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.) VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 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 § 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 § 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.) * PO 00000 * * Frm 00110 * Fmt 4701 * Sfmt 4700 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: [C]ages should not be used as an individual method of fall protection, but only in conjunction with a personal fall arrest/cableand-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 . . . [C]ages 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: [T]his 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 E:\FR\FM\18NOR7.SGM 18NOR7 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations ‘‘Preliminary investigation into the fallarresting effectiveness of ladder safety hoops’’ (Research Report 258–2004).53 The Executive Summary states: srobinson on DSK5SPTVN1PROD with RULES6 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 53 The HSE Report is available at https:// www.hse.gov.uk/research/rrpdf/rr258.pdf. VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 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 PO 00000 Frm 00111 Fmt 4701 Sfmt 4700 82603 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: • 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 § 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)). 54 For purposes of final paragraph (b)(9)(i)(A), the term ‘‘existing fixed ladder’’ includes any fixed ladder installed before November 19, 2018. E:\FR\FM\18NOR7.SGM 18NOR7 srobinson on DSK5SPTVN1PROD with RULES6 82604 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 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 (§ 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 VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 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 § 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 multiplesection 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 PO 00000 Frm 00112 Fmt 4701 Sfmt 4700 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 § 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 E:\FR\FM\18NOR7.SGM 18NOR7 srobinson on DSK5SPTVN1PROD with RULES6 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 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 multisection 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 § 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. VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 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 PO 00000 Frm 00113 Fmt 4701 Sfmt 4700 82605 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: E:\FR\FM\18NOR7.SGM 18NOR7 82606 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations • 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 (§ 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 § 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: srobinson on DSK5SPTVN1PROD with RULES6 [H]aving 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 VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 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 § 1910.27(d)(1)(ii)), and landing platforms (existing § 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; PO 00000 Frm 00114 Fmt 4701 Sfmt 4700 • 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 § 1910.22, the training requirements in final § 1910.30, and the criteria for personal fall protection systems in § 1910.140. E:\FR\FM\18NOR7.SGM 18NOR7 srobinson on DSK5SPTVN1PROD with RULES6 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 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 § 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 § 1910.29, and final § 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 § 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 § 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 VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 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 onthe-job training, and retraining as necessary (final § 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 § 1910.29(h)(1)). Final § 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 § 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 § 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 (§ 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 PO 00000 Frm 00115 Fmt 4701 Sfmt 4700 82607 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 § 1910.23(b)(12) and (13), the construction standard (§ 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: E:\FR\FM\18NOR7.SGM 18NOR7 82608 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 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: [I]n 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). srobinson on DSK5SPTVN1PROD with RULES6 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). VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 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 ‘‘[t]he 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: [U]rge[s] 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 Gannet[t] 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 PO 00000 Frm 00116 Fmt 4701 Sfmt 4700 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, ‘‘[T]he 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: 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 address[ed] earlier in these 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. E:\FR\FM\18NOR7.SGM 18NOR7 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 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 twentyfour 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). srobinson on DSK5SPTVN1PROD with RULES6 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 nonconforming 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 nonconforming 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 VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 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 ‘‘[t]here 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 ‘‘[w]e 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 PO 00000 Frm 00117 Fmt 4701 Sfmt 4700 82609 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 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 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: https://www.osha.gov/pls/imis/accidentsearch.html. The referenced falls are in Ex. 393 under the following inspection numbers: 310696489; 126063924; and 126062694. E:\FR\FM\18NOR7.SGM 18NOR7 srobinson on DSK5SPTVN1PROD with RULES6 82610 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 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 (§ 1926.1053(a)(18) and (19)) and other standards the Agency recently revised (§§ 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, VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 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 (§ 1926.1053(a)(19)). OSHA’s revised general industry (§ 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 (§§ 1910.269(g)(2)(iv)(C)(3) and 1926.954(b)(3)(iii)(C))(79 FR 20315 (4/11/2014)). As originally adopted, § 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 § 1910.269 specifically requiring that qualified employees use fall protection (§ 1910.269(g)(2)(iv)(C)(3))(79 FR 20399– 20401). OSHA believes the rationale for eliminating the qualified employee exception from § 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 PO 00000 Frm 00118 Fmt 4701 Sfmt 4700 arrest systems, in the 2014 revisions to § 1910.269 and § 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 § 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 E:\FR\FM\18NOR7.SGM 18NOR7 srobinson on DSK5SPTVN1PROD with RULES6 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 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 § 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 costeffective 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 § 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 VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 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 ‘‘longterm 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 §§ 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 § 1910.21(b)), include standard stairs, PO 00000 Frm 00119 Fmt 4701 Sfmt 4700 82611 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 § 1910.24(h) and the construction standard in § 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. Final paragraph (b)(11)(ii), consistent with existing § 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. 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 § 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 § 1910.21(b)). E:\FR\FM\18NOR7.SGM 18NOR7 srobinson on DSK5SPTVN1PROD with RULES6 82612 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 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 treadtype 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 § 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 § 1910.21(b)). Final paragraph (b)(12)(i), like the proposal, makes the general industry standard consistent with the construction standard by requiring the VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 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 § 1910.28(b)(15), (c)(14), (d)(7), (f)(15), (g)(5), (h)(8), (k)(5), (m)(7), (o)(2), (p)(7); § 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 § 1910.140(c)(12)). The construction fall protection standard includes a similar requirement (§ 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 lowslope 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 (§ 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)’’ (§ 1910.21(b); see also § 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 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. PO 00000 Frm 00120 Fmt 4701 Sfmt 4700 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: • 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 (§§ 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 lowslope 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 walkingworking surface delineated by a warning line in which employees may perform work without additional fall protection’’ (final § 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 (§ 1926.500(b)). In the preamble to the construction fall protection standard, OSHA explained how warning line systems work: 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). E:\FR\FM\18NOR7.SGM 18NOR7 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations srobinson on DSK5SPTVN1PROD with RULES6 [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 § 1910.28(b)(13)(ii)). The proposed rule limited designated areas to work ‘‘of a temporary nature’’ (proposed § 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 VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 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 PO 00000 Frm 00121 Fmt 4701 Sfmt 4700 82613 work at least six feet from the edge of a low-slope roof (§ 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’’ (§§ 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). 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 61 OSHA letter to Mr. O’Dea available at: https:// www.osha.gov/pls/oshaweb/owadisp.show_ document?p_table=INTERPRETATIONS&p_ id=24682. E:\FR\FM\18NOR7.SGM 18NOR7 srobinson on DSK5SPTVN1PROD with RULES6 82614 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 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 (§ 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 VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 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 PO 00000 Frm 00122 Fmt 4701 Sfmt 4700 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: 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 § 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 § 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. 62 OSHA letter to Mr. O’Dea available at: https:// 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. E:\FR\FM\18NOR7.SGM 18NOR7 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 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). srobinson on DSK5SPTVN1PROD with RULES6 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 VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 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 § 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 PO 00000 Frm 00123 Fmt 4701 Sfmt 4700 82615 workers in accordance with proposed § 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 E:\FR\FM\18NOR7.SGM 18NOR7 82616 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations srobinson on DSK5SPTVN1PROD with RULES6 • The employer ensures authorized workers receive training in accordance with final § 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 § 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 (§ 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 VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 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 (§ 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 (§ 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 § 1910.29, like the proposed rule, establishes system criteria and work-practice requirements for fall protection systems and falling object protection specified by final § 1910.28, Duty to have fall protection systems and falling object protection,65 and § 1910.140, Personal fall protection equipment. As discussed earlier in this preamble, final §§ 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 § 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. 65 The final rule revised the title for § 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. PO 00000 Frm 00124 Fmt 4701 Sfmt 4700 Final § 1910.29 requires that employers ensure the fall protection system and falling object protection they select meet the specified criteria and practice provisions. Finally, § 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 § 1910.132. In general, OSHA patterned the system criteria and work practice requirements in final § 1910.29 to be consistent with its construction standards (§§ 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 § 1910.28, many commenters supported making the general industry fall and falling object protection requirements consistent with those in the construction industry. Final § 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 § 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 § 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 E:\FR\FM\18NOR7.SGM 18NOR7 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 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). srobinson on DSK5SPTVN1PROD with RULES6 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 § 1910.29. Accordingly, the requirements of § 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 (§ 1910.265)) must comply with requirements in § 1910.29(i) because § 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 §§ 1910.132, General requirements, and 1910.140, Personal fall protection equipment. Final § 1910.140 establishes personal fall protection system criteria and work practice requirements, while § 1910.132 establishes provisions that apply to all personal protective equipment (PPE), including personal fall protection systems. For example, § 1910.132(a) requires that employers provide, use, and maintain PPE, including personal fall protection systems, in a reliable condition, and § 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, § 1910.132(d) requires that employers perform a hazard assessment and ‘‘[s]elect PPE that properly fits each affected employee,’’ while § 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) VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 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 (tieoff) 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 § 1910.23), and also drew the requirements from the construction fall protection standard in § 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 PO 00000 Frm 00125 Fmt 4701 Sfmt 4700 82617 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 § 1926.502 (59 FR 40733) also provides useful explanatory material for each of the guardrail system provisions in § 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 § 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 (§ 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 § 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 (§ 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 E:\FR\FM\18NOR7.SGM 18NOR7 srobinson on DSK5SPTVN1PROD with RULES6 82618 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 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 ‘‘[c]learly, 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– VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 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 PO 00000 Frm 00126 Fmt 4701 Sfmt 4700 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 nonstandard 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 36inch 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 thenexisting 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 E:\FR\FM\18NOR7.SGM 18NOR7 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 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: srobinson on DSK5SPTVN1PROD with RULES6 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 § 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 VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 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 § 1926.502(b)(2), which has almost identical requirements. The existing rule in § 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 §§ 1910.23(e)(3)(iv) and (e)(3)(v)(b). The final rule is almost identical to the construction fall protection standard in § 1926.502(b)(3), and consistent with A10.18–2012 (Section 4.1.4). PO 00000 Frm 00127 Fmt 4701 Sfmt 4700 82619 The term ‘‘failure,’’ as defined in final § 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 8foot 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 E:\FR\FM\18NOR7.SGM 18NOR7 srobinson on DSK5SPTVN1PROD with RULES6 82620 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 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 11⁄2 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 § 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 § 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 walkingworking 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 VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 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 § 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 PO 00000 Frm 00128 Fmt 4701 Sfmt 4700 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 walkingworking 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 § 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 § 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 E:\FR\FM\18NOR7.SGM 18NOR7 srobinson on DSK5SPTVN1PROD with RULES6 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 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 midheight. 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 smoothsurfaced 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 § 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 § 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 § 1910.23(e)(1) and the construction fall protection standard in § 1926.502(b)(7). VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 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(§ 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 200pound 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 onequarter 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 (§ 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 PO 00000 Frm 00129 Fmt 4701 Sfmt 4700 82621 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 § 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/ 66 OSHA letter to Mr. Stephen Hazelton available at: https://www.osha.gov/pls/oshaweb/ E:\FR\FM\18NOR7.SGM Continued 18NOR7 srobinson on DSK5SPTVN1PROD with RULES6 82622 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 1993) 67). In the letter to Mr. Bredl, OSHA said ‘‘employee protection at access openings [must] be equivalent to that of the guardrail system.’’ 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 § 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 § 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 § 1926.502(b)(11). OSHA did not receive any comments on the proposed provision and finalizes it as discussed. 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. VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 Final paragraph (b)(12), like the proposed rule and construction fall protection standard (§ 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 § 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 § 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 § 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 (§ 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; PO 00000 Frm 00130 Fmt 4701 Sfmt 4700 • 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 § 1910.28. As discussed, final § 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 selfclosing 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: [T]he 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, E:\FR\FM\18NOR7.SGM 18NOR7 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations srobinson on DSK5SPTVN1PROD with RULES6 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 ‘‘[s]ince 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 § 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 § 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 walkingworking 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. VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 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 § 1926.502(b)(15). The existing rule does not include a similar provision. 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 § 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 § 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 § 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 68 Synthetic rope includes plastic rope, therefore, OSHA does not carry forward in the final rule the term ‘‘plastic.’’ PO 00000 Frm 00131 Fmt 4701 Sfmt 4700 82623 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 § 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 § 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 § 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. E:\FR\FM\18NOR7.SGM 18NOR7 srobinson on DSK5SPTVN1PROD with RULES6 82624 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 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 § 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 droptest 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 § 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 § 1910.29(c), stating, ‘‘Referencing the construction standard, CFR § 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 VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 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 § 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 § 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 § 1910.28(b)(13) limits the use of designated areas to one situation: Work on low-slope roofs. The final rule in § 1910.21(b) defines ‘‘lowslope roof’’ as ‘‘a roof that has a slope less than or equal to a ratio of 4 in 12 (vertical to horizontal).’’ Final § 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. PO 00000 Frm 00132 Fmt 4701 Sfmt 4700 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 § 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 § 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 § 1910.28(b).) 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 lowslope 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. 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. E:\FR\FM\18NOR7.SGM 18NOR7 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations The final rule in § 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 § 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: srobinson on DSK5SPTVN1PROD with RULES6 [W]e 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 VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 apply floor markings, instead of erecting warning lines, to demarcate vehicle repair, services, and assembly pits (see proposed and final § 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 § 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 PO 00000 Frm 00133 Fmt 4701 Sfmt 4700 82625 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 500pound 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 § 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 E:\FR\FM\18NOR7.SGM 18NOR7 srobinson on DSK5SPTVN1PROD with RULES6 82626 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations N) applied horizontally against the stanchion,’’ The Agency drew proposed paragraph (d)(2)(i) from the construction warning line system requirements in § 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 16pound 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 § 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 VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 paragraph (d)(2)(iii) and the construction fall protection standard in § 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 PO 00000 Frm 00134 Fmt 4701 Sfmt 4700 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 § 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 E:\FR\FM\18NOR7.SGM 18NOR7 srobinson on DSK5SPTVN1PROD with RULES6 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 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 § 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 § 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 § 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 VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 protection standard in § 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 final rule. OSHA agrees with commenters that the proposed access path requirement is not necessary, especially on large roofs that require employers to erect long access paths. Evidence in the record suggests that many low-slope roofs in general industry are quite large. For example, Edison Electric Institute (EEI) commented that ‘‘[s]ome flat roofs in a general industry setting could be the size of several football fields’’ (Ex. 207). Although OSHA is deleting the proposed access path requirement, the Agency stresses that employers still must train workers, in accordance with PO 00000 Frm 00135 Fmt 4701 Sfmt 4700 82627 final § 1910.30, about the potential fall hazards in the work area, which includes accessing the work area, and the proper set-up and use of designated areas. Paragraph (e)—Covers Final paragraph (e) addresses criteria and practices for covers that employers use to protect workers from falling into a hole in a walking-working surface, including holes in floors, roofs, skylights, roadways, vehicle aisles, manholes, pits, and other walkingworking surfaces. The final rule consolidates and updates the cover criteria and practice requirements in the existing rule (e.g., existing §§ 1910.23(a)(5), (8), and (9), and 1910.23(e)(7) and (8)). In addition, the final rule consolidates the proposed cover requirements, which are similar to those in the construction fall protection standard in § 1926.502(i). Final paragraph (e)(1) requires that employers ensure any cover they use to prevent workers from falling into a hole in a walking-working surface is capable of supporting, without failure, at least twice the maximum intended load that may be imposed on the cover at any one time. The final rule clarifies and simplifies the proposed rule, and makes it consistent with other provisions in the final rule, by replacing the proposed language with ‘‘maximum intended load,’’ which OSHA consistently uses throughout the final rule. The final rule in § 1910.21(b) defines ‘‘maximum intended load’’ 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 walkingworking surface at any one time; in this case, the walking-working surface is a cover. The final rule is consistent with A10.18–2012 (Section 7.1.1.4), which requires that trench and manhole covers support at least twice the maximum intended load. The language in the final rule differs from the proposal, the construction fall protection standard, and the existing rule. The proposed and construction rules require that covers in roadways and vehicle aisles be capable of supporting ‘‘twice the maximum axle load of the largest vehicle expected to cross over the cover’’ (see proposed paragraph (e)(1) and § 1926.502(i)(1)), and that all other covers support ‘‘twice the weight of employees, equipment, and materials imposed on the cover at any one time’’ (proposed paragraph (e)(2)). The existing rule in § 1910.23(e)(7) states that trench, conduit, and manhole covers must support a truck rear-axle load of at least E:\FR\FM\18NOR7.SGM 18NOR7 82628 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 20,000 pounds, and that floor-opening covers consist of ‘‘any material that meets the strength requirements.’’ 70 OSHA believes that using the single, uniform term ‘‘maximum intended load’’ makes the final rule easier to understand than the proposed rule, and is consistent with a number of other requirements in the final rule. In addition, the term clearly states that covers must be capable of supporting twice the weight and force expected to be placed on them. By using the term ‘‘maximum intended load,’’ which includes the weight and force of all vehicles, equipment, tools, materials, workers, and other loads, OSHA consolidates the cover requirements into a single provision that applies the same, uniform criteria to all covers. OSHA also believes that establishing a uniform standard for all covers eliminates potential confusion and needless repetition. Ellis commented that the proposed rule did not define the ‘‘adequacy and walkability’’ of covers (Ex. 155). The Agency believes that paragraph (e)(1) of the final rule establishes ‘‘adequacy’’ criteria using performance-based measures (i.e., support twice the maximum intended load), which is consistent with the OSH Act at Section 6(b)(5). OSHA believes this performance-based approach also gives employers flexibility in selecting the material for a cover that they believe best meets the requirement in final paragraph (e)(1). Thus, employers may use covers made of the materials Ellis suggests so long as the cover supports twice the maximum intended load. In this regard, Ellis noted: srobinson on DSK5SPTVN1PROD with RULES6 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 (Ex. 155). OSHA notes that Appendix A of A10.18–2012 (Ex. 388) provides information on hole covers, including material used for them, that provide additional guidance on the issue Ellis raises. As for ‘‘walkability,’’ if the employer anticipates that an employee will walk across a hole cover, the cover must meet the requirements of final § 1910.22. Final paragraph (e)(2) (proposed paragraph (e)(3)) requires that employers secure covers to prevent accidental displacement. Accidental 70 OSHA notes that A10.18–2012 (Section 7.1.1.3) is consistent with the proposed rule. VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 displacement of hole covers can occur due to a number of factors. For example, weather conditions such as wind, floods, snow, and ice can cause covers to become displaced. Heavy equipment running back and forth over covers also can loosen or displace them. The final rule expands and revises both the existing and proposed rules. The final rule expands existing § 1910.23(a)(9), which only applies to ‘‘floor holes,’’ to include holes in any walking-working surface that employers protect with covers. Final paragraph (e)(2) expands and revises the proposed rule in two ways. First, the final rule eliminates, as unnecessary, the examples in proposed paragraph (e)(3) of conditions that may cause displacement of covers. Second, the final rule revises the proposed language to make clear that employers must keep covers firmly secured at all times. The proposed rule in paragraph (e)(3), like the construction fall protection standard in § 1926.502(i)(3), only specified that employers secure covers firmly ‘‘when installed.’’ However, in light of Ellis’ comment that ‘‘[l]ong-term covers which are acknowledged to be weak or degrade in the elements should have minimum requirements to follow for safety and structural inspection’’ (Ex. 155), OSHA believes it is important to clarify that employers ensure that covers remain firmly secured after installation. The final rule does not retain proposed paragraphs (e)(4) and (5). Proposed paragraph (e)(4) required that employers ensure covers were color coded or marked with the word ‘‘HOLE’’ or ‘‘COVER’’ to warn workers of the hazard. Proposed paragraph (e)(5) specified that proposed paragraph (e)(4) did not apply to cast-iron manhole covers or steel grates, such as those on streets and roadways. OSHA drew both proposed requirements from the construction fall protection standard in § 1926.502(i)(4). In the proposed rule, OSHA requested comment on the need to include proposed paragraph (e)(4) in the final rule and information on the extent to which employers already mark or color code covers. OSHA received one comment on the proposed requirement. NGS said the proposed requirement was not necessary because ‘‘[t]he proposed standard already requires that covers be properly designed, constructed and secured, thus engineering out the hazard’’ (Ex. 180). OSHA agrees with this comment; the requirements in final paragraphs (e)(1) and (2), that employers ensure covers are strong enough to support the weight to be placed on them and are secured in place at all times, eliminates the need to also color code or PO 00000 Frm 00136 Fmt 4701 Sfmt 4700 label them as a hazard. Covers that meet the requirements of the final rule are not hazards. Therefore, OSHA deletes proposed paragraph (e)(4) because it is unnecessary. Since the final rule does not carry forward the proposed marking requirement, proposed paragraph (e)(5) exempting certain covers from that requirement is no longer necessary. NGS also said that proposed paragraph (e)(5) is not necessary (Ex. 180). They pointed out that ‘‘[m]anhole covers and steel grates are already exempt from the marking requirement’’ (Ex. 180). OSHA agrees. Final paragraphs (e)(1) and (2) provide adequate protection; therefore, the Agency is not carrying forward the provision in the final rule. Paragraph (f)—Handrails and Stair Rail Systems Final paragraph (f) sets criteria and practice requirements for handrails and stair rail systems. These requirements cover height, finger clearance, surfaces, stair rail openings, handholds, projection hazards, and strength. The final rule in § 1910.21(b) defines ‘‘stair rail system’’ as a barrier erected along the exposed or open side of stairways to prevent workers from falling to a lower level, while ‘‘handrails’’ are rails used to provide workers with a handhold for support. In final paragraph (f)(1), which addresses handrail height criteria, OSHA revised the language on measuring height criteria to make it uniform and consistent throughout final paragraph (f)(1). For example, final paragraph (f)(1) incorporates uniform terminology (i.e., leading edge, top surface) and simplifies how to measure handrail height. The final rule adopts the method in A1264.1–2007, which specifies that handrails be measured from the leading edge of the tread to the top of the handrail (paragraph (f)(1)(i)). New Figures D–12 and D–13 show how to make this measurement. Final paragraph (f)(1)(i) requires that employers ensure each handrail is not less than 30 inches and not more than 38 inches high, as measured from the leading edge of the stair tread to the top surface of the handrail. The height criteria in final paragraph (f)(1)(i) differs from the handrail height in both the existing and proposed rules. Existing § 1910.23(e)(5)(ii) requires that handrails be between 30 and 34 inches in height. The proposed rule required the height of handrails to be between 30 and 37 inches as measured from the upper surface of the top rail to the surface of the tread, in line with the face of the riser at the forward edge of the tread, which is consistent with both the E:\FR\FM\18NOR7.SGM 18NOR7 srobinson on DSK5SPTVN1PROD with RULES6 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations construction stairways standard in § 1926.1052(c)(6) and A10.18–2012 (Section 6.2). The A1264.1–2007 standard, on the other hand, specifies that the handrail height must be not less than 34 inches or not more than 38 inches as measured from the tread to the top of the handrail. OSHA revised the final rule in response to a comment from the National Fire Protection Association (NFPA), which pointed out that the NFPA 101 Life Safety Code, an ‘‘ANSIaccredited national expert code,’’ permits a 38-inch maximum handrail height (Ex. 97). NFPA recommended that the final rule also allow a 38-inch handrail height so handrails built in accordance with the NFPA 101–2012, Life Safety Code (Ex. 385) would not be ‘‘non-compliant’’ (Ex. 97). NFPA also said that their recommendation was ‘‘technically sound as borne out by the research of Jake Pauls while he was on staff at the National Research Council Canada in the 1970s and 1980s’’ (Ex. 97). In addition, NFPA appeared to suggest a 38-inch maximum handrail height would provide support for a broader range or workers (i.e., taller workers) without compromising the protection of any worker (Ex. 97). OSHA agrees that handrails built in accordance with NFPA 101 are acceptable, and is adopting this recommendation in the final rule; therefore, in the final rule the Agency increased the maximum handrail height by one inch, from 37 inches to 38 inches, which Figure D–12 illustrates. Since both the existing and proposed handrail height requirements come within revised final paragraph (f)(1)(i), OSHA does not expect that employers will have any problems complying with the final rule. The final rule simply provides employers with greater compliance flexibility. Final paragraph (f)(1)(ii) establishes the height requirement for stair rail systems. Employers must ensure: • The height of stair rail systems installed before the effective date of the final rule, which is January 17, 2017, is not less than 30 inches as measured from the leading edge of the stair tread to the top surface of the top rail (paragraph (f)(1)(ii)(A)); and • The height of stair rail systems installed on or after the effective date is not less than 42 inches as measured from the leading edge of the stair tread to the top surface of the top rail (paragraph (f)(1)(ii)(B)). The final rule revises the requirements in both the existing and proposed rules. The existing rule in § 1910.23(e)(2) requires that the height of a stair railing be not less than 30 VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 inches nor more than 34 inches as measured from the upper surface of the stair tread to the top edge of the top rail. The final rule eliminates the maximum height requirement for existing stair rail systems. The proposed rule would have raised the minimum height of new and replacement stair rails to 36 inches. The final rule, however, requires that new and replacement systems be at least 42 inches in height. In the proposed rule, OSHA explained that a 36-inch minimum height would make the general industry requirement consistent with the construction stairways standard in § 1926.1052(c)(3), and would afford a reasonable level of safety to workers (75 FR 28897). However, OSHA also discussed a University of Michigan study indicating that the minimum stair rail system height should be 42 inches, and also suggested that even 42 inches may not be adequate (Ex. OSHA–S041–2006–0666–0004). OSHA also noted that A1264.1–2007 (Section 5.5) establishes a 42-inch maximum stair rail system height. The Agency requested comment about raising the minimum stair rail system height to 42 inches. OSHA received one comment. NFPA recommended raising the minimum height of stair rail systems to 42 inches, which would make the final rule consistent with the NFPA 101 Life Safety Code (Ex. 97). NFPA indicated that a 42-inch minimum stair rail system height would be more protective than the proposed height, and that research supported the 42-inch minimum height. Accordingly, NFPA stated, ‘‘A minimum 42-inch high guard is needed to prevent a ninety-fifth percentile male from falling over the rail upon striking the side of a stair. This was documented in Jake Pauls’ work of the 1970s and 1980s while he was on staff at the National Research Council Canada’’ (Ex. 97). NFPA also said that the University of Michigan study supported raising the minimum stair rail system height. OSHA agrees that NFPA’s recommendation would make the final rule more protective for a broader range of workers than the proposed rule and, therefore, requires that stair rail systems installed on or after the effective date of the final rule be at least 42 inches as measured from the leading edge of the stair tread to the top surface of the top rail. OSHA notes A10.18–2012 (Sections 4.1.2 and 5.2) requires that stair rail systems be 42 inches, plus or minus three inches. OSHA also requested comment about whether the final rule should establish a maximum height for stair rail systems like A1264.1–2007. In the preamble to PO 00000 Frm 00137 Fmt 4701 Sfmt 4700 82629 the proposal, OSHA said the purpose of stair rail systems is to prevent workers from falling over the edge of open-sided stairways, and that eliminating a maximum height would give employers greater flexibility to install stair rail systems they considered to be safer (75 FR 28897). OSHA notes that the 42-inch stair rail height (final paragraph (f)(1)(ii)(B)) is prospective. It only applies to new and replacement stair rail systems installed on or after January 17, 2017. Under the proposed rule, the new height requirements would have taken effect 90 days after the effective date, and Ameren recommended lengthening the phase-in period, saying, ‘‘Lead time for material orders are often quite longer than three months often up to years to order material for large capital projects.’’ Ameren stated later, ‘‘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). However, OSHA believes 60 days gives employers adequate time to come into compliance with the final rule and to change the specifications of any stair rail systems they have on order. The NFPA 101 Life Safety Code has been in place for a number of years, and the NFPA said that today stair rail systems ‘‘are being installed at a minimum 42inch height for compliance with nationally-recognized, expert model codes like NFPA 101 Life Safety Code’’ (Ex. 97). Accordingly, OSHA believes most employers already are in compliance with the final rule, and the remainder will be able to comply with this prospective requirement when the final rule becomes effective. The final rule will not affect existing stair rail systems; therefore, there is no requirement to retrofit stair rail systems. The final rule will continue to allow stair rails installed before the new requirement takes effect to meet the existing requirement. Finally, OSHA deleted the proposed note to paragraphs (f)(1)(i) and (ii) because it is unnecessary. The proposed note explained the criteria for measuring the height of handrails and stair rail systems. The final rule includes the measurement criteria in final paragraphs (f)(1)(i) and (ii). OSHA believes this deletion makes the final rule easier to read and follow than the proposal. Final paragraph (f)(1)(iii) permits employers to use the top rail of stair rail systems as a handrail only when: • The height of the stair rail system, which Figure D–13 illustrates, is not less than 36 inches and not more than E:\FR\FM\18NOR7.SGM 18NOR7 82630 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations srobinson on DSK5SPTVN1PROD with RULES6 38 inches as measured at the leading edge of the stair tread to the top edge of the top rail (final paragraph (f)(1)(iii)(A)); and • The top rail of the stair rail system meets the other handrail requirements in final paragraph (f) of this section (final paragraph (f)(1)(iii)(B)). The proposed provision was consistent with the construction stairways standard in § 1926.1052(c)(7), which also allows employers to use top rails of stair rail systems as a handrail under specified conditions. OSHA believes a top rail of a stair rail system, under some conditions, may effectively and safely perform the function of both a stair rail system and handrail. Allowing employers to use stair rail top rails as handrails under these conditions provides employers with compliance flexibility without compromising worker safety when employers comply with the required conditions of use. In response to NFPA’s comments, OSHA revised final paragraph (f)(1)(iii) in three ways. First, for the reasons discussed final paragraph (f)(1)(i), the final rule raises the required height of stair rail top rails used as handrails to not less than 36 inches, but not more than 38 inches, from the proposed height of not less than 36 inches, but not more than 37 inches. This change makes the final rule consistent with the NFPA 101 Life Safety Code, and will protect a broader range of workers (Ex. 97). Second, because the final rule requires that all stair rail systems installed on or after the effective date, which is January 17, 2017, must be at least 42 inches in height, final paragraph (f)(1)(iii)(A) is only applicable to stair rail systems installed before the effective date. Third, OSHA adds to the final rule the requirement that employers may use stair rails as handrails only if the stair rails also meet the other requirements in paragraph (f). NFPA recommended that OSHA allow the use of stair rails as handrails only if they also meet the handhold requirements in proposed paragraph (f)(5). NFPA recommended an addition to the proposed provision, stating: [The addition] recognize[s] the stair rail as an acceptable handrail not only based on height but if it additionally provides the handhold required of a handrail. The user would not otherwise know that the stair rail needs graspability as the provision of 1910.29(f)(5) is written to have applicability to handrails, not specifically to stair rails that are at an appropriate height so as to serve as a handrail (Ex. 97). OSHA agrees with NFPA that the final standard should only allow employers to use stair rail top rails as handrails if the top rail ‘‘has the shape and VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 dimension necessary so employees can grasp it firmly to avoid falling’’ (see final paragraph (f)(5)). However, OSHA also believes that employers can use stair rails as handrails only if the stair rails also meet other handrail requirements such as having smooth surfaces (see final paragraph (f)(3)) and no projection hazards (see final paragraph (f)(6)). OSHA revises the final rule accordingly. Final paragraph (f)(2) requires that employers ensure there is a finger clearance of at least 2.25 inches between handrails (including the top rail of a stair rail system being used as handrails) and any other object (such as a wall). Workers need adequate clearance space so they are able to maintain a firm grasp on the handrail while they go up and down workplace stairs. The proposed rule would have required a three-inch minimum clearance for handrails and stair rails. OSHA explained that the proposed minimum clearance would make the general industry rule consistent with the construction stairways standard (§ 1926.1052(c)(11)), which also requires a minimum clearance of three inches for handrails that will not be a permanent part of the structure being built. In 1990, OSHA first proposed revising the existing three-inch finger clearance requirement to a minimum of 1.5 inches. OSHA explained that the revision would make the rule consistent with local building codes; ANSI A12.1– 1973, Safety Requirements For Floor and Wall Openings, Railings, and Toeboards; draft revised A1264.1; and ANSI A117.1–1986, Providing Accessibility and Usability for Physically Handicapped People (Ex. OSHA–S041–2006–0666–0054). The A1264.1–2007 (Section 5.9) standard eventually adopted a 2.25-inch minimum finger clearance. In the 2010 proposal, OSHA said it proposed to retain the existing threeinch minimum clearance so the general industry rule would be consistent with the construction stairways standard, thereby facilitating compliance for employers who perform both general industry and construction activities. OSHA also said the difference between the three-inch minimum clearance in the proposed, existing, and construction standards and the 2.25-inch minimum clearance in A1264.1–2007 was not ‘‘significant’’ (75 FR 28897). Nonetheless, OSHA asked for comment on whether the Agency should adopt the 2.25 inch requirement instead. NFPA submitted a comment recommending that OSHA adopt a 2.25inch minimum clearance for handrails, PO 00000 Frm 00138 Fmt 4701 Sfmt 4700 which the NFPA 101 Life Safety Code requires, for the following reasons: (1) for consistency among the model codes [which require only a 2.25-inch finger clearance], (2) so that owners operators are not surprised with a violation after complying with the model codes, and (3) because there is no technical basis for requiring more than 21⁄4 inches in order to provide a usable handrail. Remember that for years and years the model codes’ minimum finger clearance was 11⁄2 inches but concerns over users skinning their knuckles on rough wall surfaces led to research that identified the 21⁄4 inch criterion as necessary and adequate (Ex. 97). NFPA also disagreed with the Agency’s characterization of the difference between OSHA’s existing and proposed three-inch minimum finger clearance and the 2.25 clearance in A1264.1–2007 as ‘‘not significant,’’ stating: Where a 3-inch finger clearance is used for handrails at both sides of a stair in place of a 21⁄4-inch finger clearance, the stair’s rated egress capacity drops by 5 persons. Owners of new buildings want to maximize egress capacity with respect to the space allotted to a stair, and the loss of egress credit for 5 persons is significant. So compliance with the proposed OSHA requirement will add cost (Ex. 97). With the exception of NFPA’s claim that a three-inch clearance will increase building construction costs, OSHA finds convincing NFPA’s reasons for recommending a 2.25-inch minimum clearance space. A 2.25-inch minimum finger clearance will make the final rule consistent with NFPA 101 as well as ANSI/ASSE A1264.1–2007, and the International Building Code–2012 (IBC– 2012). OSHA believes that following those consensus standards will prevent confusion and ensure the final rule complies with section 6(b)(8) of the OSH Act. In addition, since 2.25 inches is a minimum clearance, employers may continue to use a three-inch clearance. Therefore, OSHA believes the 2.25-inch minimum clearance in the final rule provides greater compliance flexibility for employers. Final paragraph (f)(3) requires that employers ensure handrails and stair rail systems are smooth-surfaced to protect workers from injury, such as punctures or lacerations, and to prevent catching or snagging of clothing, including protective clothing. OSHA revises the final provision to make it consistent with final (b)(6), for guardrail systems. The final provision is consistent with the existing rules for stair rails in § 1910.23(e)(3)(v)(a) and handrails in § 1910.23(e)(5)(i), as well as the construction stairways standard in E:\FR\FM\18NOR7.SGM 18NOR7 srobinson on DSK5SPTVN1PROD with RULES6 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations § 1926.1052(c)(8). The A10.18–2012 standard (Section 5.2) also contains a similar requirement that stairways ‘‘shall be free of sharp edges, splinters, or similar conditions.’’ OSHA did not receive any comments on the proposed provision and adopts it as discussed. Final paragraph (f)(4), like the proposed rule, requires that employers ensure no opening in a stair rail system exceeds 19 inches at its least dimension. Final § 1910.21(b) defines ‘‘stair rail system’’ as a barrier erected along the ‘‘exposed or open side of stairways to prevent employees from falling to a lower level.’’ Stair rail systems, like guardrail systems, need to limit the openings in the exposed or open sides of stairways to prevent workers from falling through to a lower level. Limiting the openings also can prevent objects from falling through the opening and hitting workers who are below, although openings that are 19 inches apart may not prevent some objects from falling. The final provision is consistent with the construction fall protection and stairways standards in §§ 1926.502(b)(2)(iii) and (iv) and 1926.1052(c)(4)(iii) and (iv), respectively, for openings in stair rail and guardrail systems. The existing rule in § 1910.23(e)(1) requires a midrail ‘‘approximately halfway between the top rail and the [walking-working surface].’’ OSHA did not receive any comments on the proposed provision and adopts it as discussed above. Final paragraph (f)(5), like the proposed rule, requires that employers ensure handrails (including top rails of stair rail systems serving as handrails (final paragraph (f)(1)(iii)), have the shape and dimension necessary so workers can grasp the handrail firmly. The final rule is similar to the construction stairways standard in § 1926.1052(c)(9). The existing rule at existing § 1910.23(e)(5)(i) requires that handrails be of a rounded or other section that furnishes an adequate handhold to avoid falling. Similarly, the A1264.1–2007 standard (Section 5.8) requires that handrails be rounded with a cross sectional design that furnishes an adequate handhold for anyone grasping it to avoid failing. A10.18–2012 (Section 6.3) also requires a handhold to grasp to avoid falling. OSHA received a comment from NFPA saying the proposed requirement was too vague. In its comment, NFPA stated: The provision . . . requires someone to judge whether a handrail’s shape and dimensions provide a firm handhold for employees. The requirement is too performance-based without providing guidance as to what is intended with respect VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 to a ‘firm’ handhold. Its enforcement will be subjective (Ex. 97). NFPA recommended that OSHA instead adopt the following language on handhold criteria from the NFPA 101 Life Safety Code: Handrails conforming with one of the following features are deemed to comply with the requirement for handhold: (i) The handrail has a circular cross section with an outside diameter of not less than 11⁄4 in. (3 cm) and not more than 2 in. (5 cm), or (ii) the handrail has a shape that is other than circular with a perimeter dimension of not less than 4 in. (10 cm), but not more than 61⁄4 in. (16 cm), and with the largest crosssectional dimension not more than 21⁄4 in. (6 cm)(Ex. 97). OSHA does not believe it is necessary to add to final paragraph (f)(5) the specification language NFPA recommends. Requirements on handrail and stair rail system handholds have been in place for many years, and OSHA is not aware of any employers experiencing difficulties in ensuring handrails, and top rails serving as handrails, are of the size and dimension that provide a handhold that workers can grasp firmly. OSHA also believes that retaining the performance-based language gives employers flexibility to select the shape and size of handrail that will provide the most effective handhold in particular workplace situations. For example, the performance-based language allows employers to take advantage of anthropometric testing and research to select the size and shape of handrails that provide a firm grasp for the broadest range of workers. Although OSHA is not adopting the language NFPA recommends, the Agency notes that employers who install handrails and top rails of stair rails systems that meet the specification of the NFPA 101 Life Safety Code will be in compliance with final paragraph (f)(5). Final paragraph (f)(6), like the proposed rule, requires that employers ensure the ends of handrails and stair rail systems do not present any projection hazard. OSHA drew the final provision from the existing general industry rule in § 1910.23(e)(5)(i) and the construction stairways standard in § 1926.1052(c)(10). The final rule also is consistent with A1264.1–2007 (Section 5.8). OSHA believes it is necessary to prevent or eliminate projection hazards so workers do not walk or fall into a protruding handrail or stair rail system and get injured. Projection hazards also can snag or catch workers’ clothing or equipment and cause workers to lose their balance and fall on, or down, the stairway. A fall on a stairway could PO 00000 Frm 00139 Fmt 4701 Sfmt 4700 82631 seriously injure, or even kill, a worker. OSHA did not receive any comments on the proposed rule and adopts the provision as discussed above. Final paragraph (f)(7), similar to the proposed rule, requires that employers ensure handrails, and the top rails of stair rail systems, are capable of withstanding, without failure, a force of at least 200 pounds applied in any downward or outward direction within 2 inches of any point along the top edge of the rail. OSHA believes it is necessary that handrails and top rails on stair rail systems be able to withstand a force of at least 200 pounds to protect workers from falling to a lower level when they lean on or over handrails and top rails, or if they fall against a rail. If handrails and top rails cannot support a 200pound force, workers could receive serious injuries or die from falling over the open or exposed side of the stairway. The proposed rule required that handrails and top rails be capable of withstanding the specified test load ‘‘without permanent deformation or a loss of support.’’ The final rule replaces the proposed language with the term ‘‘without failure.’’ Final § 1910.21(b) defines ‘‘failure’’ as a load refusal, breakage, or separation of component parts. It is the point at which the ultimate strength is exceeded which encompasses loss of support. Failure does not include all ‘‘permanent deformation,’’ but rather deformation that reduces the structural integrity or support capability of a part or member. OSHA believes the term ‘‘without failure’’ clearly reflects the type of deformation the final rule addresses. In addition, OSHA uses the term ‘‘without failure’’ throughout the final rule (e.g., final paragraphs (b)(3), (b)(5), (e)(1), and (i)(6)), which should facilitate understanding of the final rule, and help to ensure consistent interpretation of the final rule. The final rule is almost identical to the construction stairways standard in § 1926.1052(c)(5). The existing general industry rule included strength-criteria requirements (‘‘200 pounds applied in any direction at any point’’) for ‘‘completed’’ stair rail systems (see existing § 1910.23(e)(3)(iv)) and handrail mountings (see existing § 1910.23(e)(5)(iv)). Similarly, the A1264.1–2007 standard ( Section 5.6.1) specifies that completed railing systems must be able to withstand a concentrated load of 200 pounds ‘‘applied in any direction, except up, at the midpoint between posts without exceeding maximum allowable deflection.’’ OSHA did not receive any E:\FR\FM\18NOR7.SGM 18NOR7 82632 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations srobinson on DSK5SPTVN1PROD with RULES6 comments on the proposed provision and adopts it with the revised language discussed above. Paragraph (g)—Cages, Wells, and Platforms Used With Fixed Ladders Final paragraph (g) establishes criteria and practice requirements for cages, wells, and platforms used with fixed ladders. As discussed above in this preamble, final § 1910.28 limits, and eventually phases out, the use of cages and wells as a means of fall protection on fixed ladders. After the final phaseout deadline, employers must ensure all fixed ladders have ladder safety systems or personal fall arrest systems to protect workers from falling to a lower level. Final paragraph (g) includes an informational note reminding employers that final § 1910.28 establishes the requirements that employers must follow on the use of cages and wells as a means of fall protection. OSHA notes that the requirements in final paragraph (g) do not apply once a ladder safety system or personal fall arrest system has been installed on the fixed ladder as required by final § 1910.28(b)(9). Final paragraph (g)(1), similar to the proposed rule, requires that employers ensure cages and wells installed on fixed ladders are designed, constructed, and maintained to permit easy access to, and egress from the ladder that they enclose. The final rule divides the other proposed requirements into separate provisions, which makes the final rule easier to understand and follow. Consistent with the OSH Act (29 U.S.C. 655, 6(b)(5)), final paragraph (g)(1) replaces the specification requirements for cages and wells in existing § 1910.27(d) with performancebased language that specifies the performance objective of the final rule (e.g., to permit easy access and egress). The existing rule, on the other hand, specifies that cages extend down the ladder to a point not less than 7 feet nor more than 8 feet above the base of the ladder, and flare not less than 4 inches at the bottom. The existing rule also requires that the cages extend a minimum of 42 inches above the top of the landing a fixed ladder is served by. OSHA believes that the final rule’s performance-based approach also provides flexibility to employers. OSHA includes Figure D–15 in the final rule, which provides an example of acceptable cage construction and dimensions. Final paragraph (g)(1) adds language specifying that employers ensure cages and wells, in addition to being designed and constructed to provide easy access to and egress from the fixed ladder, are maintained in that condition. This VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 language reinforces the general maintenance and safe access and egress requirements in final § 1910.22. OSHA did not receive any comments on the proposed rule and adopts the provision with the clarifications discussed above. Final paragraph (g)(2), like proposed paragraph (g)(1), requires that employers ensure cages and wells are continuous throughout the length of the fixed ladder, except for access, egress, and other transfer points. Requiring that cages and wells cover the entire length of the fixed ladder is necessary to ensure that cages and wells are effective in containing and directing workers to a lower landing. Final paragraph (g)(2) recasts into plain language two provisions in the existing general industry rule and is consistent with the construction ladder standards that address the length of cages on fixed ladders. Both the existing general industry and construction standards require that cages extend along the fixed ladder to a point that is not less than seven feet nor more than eight feet above the base of the ladder (see existing § 1910.27(d)(1)(iv) and § 1926.1053(a)(20)(vii)). These standards also require that the tops of cages extend at least 42 inches above the top of the platform or the point of access at the top of the ladder (see existing § 1910.27(d)(1)(iii) and § 1926.1053(a)(20)(viii)). A14.3–2008 (Sections 6.1.2.4 and 6.1.2.5) also includes similar requirements. OSHA did not receive any comments on the proposed rule and adopts it with the revised performance-based language discussed above. Final paragraph (g)(3), similar to proposed paragraph (g)(1), requires that employers ensure cages and wells are designed, constructed, and maintained so they contain workers in the event of a fall and direct them to a lower landing. Like final paragraph (g)(1), and consistent with the OSH Act (29 U.S.C. 655, 6(b)(5)), final paragraph (g)(3) replaces detailed specification requirements in the existing rule in § 1910.27(d) with performance-based language. OSHA believes the performance-based language gives employers greater flexibility in designing, constructing, and maintaining cages and wells than the existing standard. OSHA did not receive any comments on the proposed provisions and finalizes the provision as discussed above. Final paragraph (g)(4), like existing § 1910.27(d)(2)(ii) and proposed paragraph (g)(2), requires that employers ensure landing platforms used with fixed ladders provide workers with a horizontal surface that is at least 24 PO 00000 Frm 00140 Fmt 4701 Sfmt 4700 inches by 30 inches. The final rule is consistent with ANSI A14.3–2002. OSHA notes that fixed ladder platforms, like other walking-working surfaces, also must comply with the load requirements in final § 1910.22(b). That is, fixed ladder platforms must be capable of supporting the maximum intended load that employers will impose on them. OSHA did not receive any comments on the proposed requirement and adopts it as discussed. Paragraph (h)—Outdoor Advertising Final paragraph (h) establishes temporary criteria and practice requirements for employers engaged in outdoor advertising (billboard) operations (hereafter referred to as ‘‘outdoor advertising operations’’ and ‘‘outdoor advertising employers’’). As final § 1910.28(b)(9) and (10) specify, and the note to this paragraph reinforces through its reference to § 1910.28, outdoor advertising employers may allow their workers 71 to climb fixed ladders without fall protection until November 19, 2018, which is two years after publication of the final rule. After that date, outdoor advertising employers must provide fall protection in accordance with final § 1910.28(b)(9), Fixed ladders, and the requirements in this paragraph no longer apply. The effect of final § 1910.28(b)(9) and (10) is to phase out the exception to the fall protection requirements that apply to climbing fixed ladders that OSHA provided in a variance granted in 1991 to Gannett Outdoor (56 FR 8801 (3/1/1991)), and extended to all outdoor advertising operations in a 1993 OSHA directive (Fixed Ladders Used on Outdoor Advertising Structures/ Billboards in the Outdoor Advertising Industry, STD 01–01–014 (1/26/1993)) (Ex. 51). Final paragraph (h) specifies the requirements that apply during the phase out period. OSHA drew the requirements in proposed and final paragraph (h) from the 1993 outdoor advertising directive. OSHA stresses that during the phase out period, outdoor advertising employers must: (1) Ensure workers climbing fixed ladders wear a body harness equipped with an 18-inch rest lanyard (final § 1910.28(b)(10)(ii)(B)); and (2) ensure workers are protected by a fall 71 The proposed rule in § 1910.21(b) referred to these workers as ‘‘qualified climbers,’’ which the proposal defined as workers engaged in outdoor advertising operations who, by virtue of their physical capabilities, training, work experience, and job assignment, the employer authorizes to climb fixed ladders without using fall protection. Since the final rule phases out the use of qualified climbers in two years, on November 19, 2018, OSHA does not use the term in this final rule. E:\FR\FM\18NOR7.SGM 18NOR7 srobinson on DSK5SPTVN1PROD with RULES6 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations protection system once they reach the work position (final § 1910.28(b)(10)(ii)(D)). Final paragraph (h)(1), like the proposed rule, requires that outdoor advertising employers ensure that each worker who climbs fixed ladders without fall protection is physically capable to perform those duties that employers may assign. To ensure that workers are physically capable, final paragraph (h)(1) requires that employers either observe workers performing actual climbing activities, or ensure workers undergo a physical examination. Final paragraph (h)(1) clarifies the proposed rule by making explicit that the determination of a worker’s physical capability, whether demonstrated by actual observation of climbing or by physical examination, must include whether workers are physically capable of climbing fixed ladders without fall protection as a regular part of their job duties. OSHA believes the key aspect of physical capability is the ability to climb without using fall protection. Such climbing requires particular strength, agility, and vigilance to prevent falling. Although most employers ensure workers are physically capable to do the job, OSHA believes that the additional language clarifies that the physical examination also must consider whether the worker has the physical ability to climb fixed ladders without fall protection. OSHA added the phrase ‘‘including climbing fixed ladders without using fall protection’’ to the final provision to clarify that one of the duties that workers in the outdoor advertising industry may be assigned is climbing fixed ladders that are not equipped with a ladder safety system or personal fall arrest system. Only after demonstrating the necessary ability and skill in climbing may employers allow workers to climb without using fall protection (see discussion in final § 1910.28(b)(10)). OSHA received one comment on the proposed provision. Ellis said OSHA should eliminate the outdoor advertising exception ‘‘unless medical qualification is added;’’ however, he did not provide any explanation to support the recommendation (Ex. 155). If Ellis is recommending that physical examinations include a ‘‘medical qualification’’ component, OSHA believes that the vast majority of all standard physical examinations include medical tests. In addition, OSHA believes that appropriate physical examinations to determine physical ability to climb fixed ladders without fall protection include medical tests VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 such as blood pressure, electrocardiogram, blood, pulmonary, vision, balance, reflex, and other similar medical examinations. As such, OSHA does not believe it is necessary to specify required medical tests in the final rule. Ellis appears to be recommending that employers must ensure workers have both a physical examination and perform actual climbing activities to demonstrate they are physically capable of climbing fixed ladders without fall protection. OSHA believes the current requirement does not need to be changed because the Agency is phasing out climbing fixed ladders without fall protection. OSHA notes, however, that outdoor advertising employers are free to provide their workers with both a physical examination and have them perform actual climbing activities to demonstrate physical capability. Final paragraphs (h)(2) and (3) are companion requirements that specify what training employers must provide (final paragraph (h)(2)) and how they must provide it (final paragraph (h)(3)) to ensure workers have the necessary skills to climb fixed ladders without fall protection. OSHA notes that the training outdoor advertising employers must provide in final paragraphs (h)(2) and (3) is in addition to the training they must provide under final § 1910.30. Final paragraph (h)(2), similar to the proposed rule, requires that outdoor advertising employers ensure their workers who climb fixed ladders without fall protection (1) successfully complete a training or apprenticeship program that includes hands-on training for the safe climbing of ladders, (including fixed ladders without fall protection and portable ladders); and (2) receive retraining as necessary to ensure they maintain necessary skills. Successful completion of a training or apprenticeship program means workers are proficient in all aspects of the job, including climbing without fall protection. For example, workers who successfully finish their training or apprenticeship program will know at least (1) how to safely transition from fixed ladders to work platforms and portable ladders; (2) the correct angle for safely climbing portable ladders; (3) how to properly attach to ladder safety systems and personal fall arrest systems at certain ladder heights and when transitioning to work platforms; and (4) the impacts of various environmental conditions on safely climbing fixed ladders without fall protection and what action to take. These training tasks address particularly dangerous climbing conditions, and OSHA believes completion of training or an PO 00000 Frm 00141 Fmt 4701 Sfmt 4700 82633 apprenticeship program is only successful if workers are proficient in these types of tasks. If an employer observes, or has reason to believe, that workers are no longer proficient in climbing fixed ladders without fall protection, final paragraph (h)(2) requires that they provide retraining to restore the worker’s proficiency. OSHA notes that final paragraph (h)(2), like the proposal includes language specifying that employee training on safe climbing must include ‘‘hands-on’’ training. OSHA believes that workers must have opportunities to train on ladders and with the equipment they will use to perform their work (e.g., rest lanyards) in order to become proficient in climbing fixed ladders without fall protection. OSHA did not receive any comments on proposed paragraph (h)(2) and adopts it with only minor editorial change. Final paragraph (h)(3), like the proposed rule, requires that outdoor advertising employers ensure workers possess the skill to climb ladders safely as demonstrated through: • Formal classroom training or onthe-job training; and • Performance observations. To develop the necessary skills and proficiency to climb fixed ladders without fall protection, OSHA believes that worker training must consist of two components: Formal classroom training or on-the-job training on safe climbing of ladders, and worker demonstration of proficiency of ladder climbing skills. Employers must ensure workers receive formal classroom or on-the-job training, and then are personally observed demonstrating their skills and proficiency before considering a training or apprenticeship program to be ‘‘successfully completed.’’ OSHA stresses that workers must successfully complete the training and demonstration of climbing skills and proficiency before employers may allow or assign workers to climb ladders unsupervised as part of their job. The same is true for on-the-job training, which is not ‘‘learn as you work’’ training. The purpose and structure of on-the-job training must be to teach workers and help them develop, through observation and practice, the necessary skills and proficiency to climb fixed ladders without fall protection before assigning them to perform regular climbing jobs unsupervised. OSHA did not receive any comments on the proposed provision and adopts it as discussed above. Final paragraph (h)(4), like the proposed rule, requires that employers permit workers to climb fixed ladders E:\FR\FM\18NOR7.SGM 18NOR7 82634 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations without fall protection only if such climbing is part of their routine work activities. As OSHA explained in the preamble to the proposed rule, it is essential that workers regularly perform climbing tasks so they retain knowledge of proper climbing practices and maintain climbing proficiency, including physical capabilities (75 FR 28898). Ellis recommended eliminating ‘‘qualified climbers’’ unless OSHA requires that employers supervise all climbing on fixed ladders (Ex. 155). OSHA does not believe Ellis’ recommendation is needed. The final rule requires that outdoor advertising workers who climb fixed ladders without fall protection receive extensive training before employers assign them to perform regular climbing activities. That training includes classroom or hands-on training plus observation of worker climbing proficiency. In addition, employers must train those workers in fall and equipment hazards, and provide retraining as necessary (see final § 1910.30). OSHA believes the training requirements in the final rule are adequate to ensure that outdoor advertising workers have the skills necessary to climb fixed ladders unsupervised without fall protection during the phase-out period. Therefore, OSHA did not adopt the commenter’s recommendation. srobinson on DSK5SPTVN1PROD with RULES6 Paragraph (i)—Ladder Safety Systems Final paragraph (i) establishes criteria and practice requirements for ladder safety systems permanently attached to fixed ladders or immediately adjacent to such ladders. A ladder safety system is a system designed to eliminate or reduce the possibility of falling from a ladder (see definition of ‘‘ladder safety system’’ in final § 1910.21(b)). According to this definition, it usually consists of the following: • A carrier, also called ‘‘a lifeline,’’ which is a rigid or flexible track attached to or adjacent to the fixed ladder; • A safety sleeve, which is moving component that travels on the carrier; • A lanyard; • Connectors; and • A body harness. Although the existing rule (§ 1910.21(e)(13)) defines ‘‘ladder safety devices,’’ which serve the same purpose as ladder safety systems, the existing rule does not specify criteria or practice requirements for those devices. As a result, OSHA drew many of the proposed ladder safety system criteria and practice requirements from the construction ladder standard VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 (§ 1926.1053(a)(22) and (23)).72 OSHA also drew ladder safety system criteria and practice from A14.3–2008. Final paragraph (i)(1) requires that employers must ensure each ladder safety system allows workers to climb up and down the fixed ladder with both hands free for climbing. The final rule also specifies that the design of the ladder safety system must be such that it does not require that workers continuously hold, push, or pull any part of the system while they are climbing. Final paragraph (i)(1) is consistent with the construction ladder standard in § 1926.1053(a)(22)(ii) and A14.3 (Section 7.3.1). In commenting on the proposed rule, NGS pointed out: Some forms of ladder safety systems (i.e. rope grabs) may require the employee to periodically hold up a lever to adjust the position of the grab on the rope. This is not continual and the employee can make this adjustment while in a stationary position on the ladder. Once the grab is re-positioned, the employee can climb before stopping and readjusting the grab (Ex. 180). The purpose of the proposed provision was to ensure that the ladder safety system allows workers to use both hands while they are in the process of climbing up and down the fixed ladder; it does not prohibit them from using their hands to position or adjust components of the ladder safety system, such as rope grabs, while stopping and standing in place at certain points along the ladder. OSHA believes the ladder safety system lanyard will protect workers from falling to a lower level in these situations; however, their hands must be free when they resume climbing. The final rule clarifies the provision by adding the term ‘‘continuously’’ in place of ‘‘continually.’’ OSHA believes this change reinforces clearly that workers need to hold onto the ladder with both hands while climbing, but they may perform tasks when they stop climbing. Final paragraph (i)(2), like the proposed rule, requires that employers ensure the connection between the carrier or lifeline and the point of attachment to the body harness or belt does not exceed 9 inches in length. The purpose of this provision is to limit the length of any fall and resulting arrest forces. The final rule ensures that no fall exceeds 18 inches, which will limit the arresting forces. The final rule is almost identical to the construction ladder standard in § 1926.1053(a)(22)(iv). The A14.3–2008 standard (Section 7.3.3) 72 The construction standard allows the use of body harnesses or body belts with ladder safety systems. PO 00000 Frm 00142 Fmt 4701 Sfmt 4700 also limits the lanyard length to 9 inches. Ellis commented that OSHA should prohibit the use of body belts with ladder safety systems, and pointed out that the A14.3–2008 standard specifies harnesses instead of body belts as part of a ladder safety system (Ex. 155). He added that ‘‘[a]ll manufacturers have changed at this stage to harness[es] for this climbing device’’ (Ex. 155). OSHA agrees that most employers provide body harnesses for use with ladder safety systems because harnesses distribute arresting forces across a broader portion of the body, which makes them safer than body belts. However, since the final rule limits the lanyard length to 9 inches, the maximum free fall will be 18 inches. OSHA believes a maximum free fall of 18 inches will not put an excessive arresting force on workers even if they are using body belts instead of harnesses. As such, like the construction ladder standard, OSHA does not believe it is necessary to prohibit the use of body belts with ladder safety systems. Final paragraph (i)(3), like the proposed rule, requires employers to ensure that mountings for rigid carriers are attached at each end of the carrier, with intermediate mountings spaced, as necessary, along the entire length of the carrier so the system has the strength to stop worker falls. The requirements in the final rule are consistent with the construction ladder standard (§ 1926.1053(a)(23)(i)). The A14.3–2008 standard (Section 7.3.4) also requires that rigid carriers on ladder safety systems have mountings at the end of each carrier and intermediate mountings along the carrier. However, that standard establishes specification requirements for intermediate mountings instead of the performancebased language in the final rule. A14.3– 2008 requires intermediate mountings spaced along the carrier in accordance with manufacturer’s recommendations, and installed within one foot below each splice on the carrier, with at least one mounting every 25 feet. The purpose of final paragraph (i)(3) is to ensure the ladder safety system carrier remains in place and supports the worker, if a fall occurs, by attaching the carrier (or lifeline) firmly to the fixed ladder throughout the length of the ladder. To ensure that the carrier has the strength necessary to hold a falling worker, the final rule requires that employers install an adequate number of mountings spaced ‘‘as necessary’’ along the entire carrier length. OSHA believes that manufacturer’s instructions likely identify the number E:\FR\FM\18NOR7.SGM 18NOR7 srobinson on DSK5SPTVN1PROD with RULES6 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations and spacing of intermediate mountings they believe are necessary to firmly secure the carrier. However, some carriers may need additional mountings to ensure they are able to support the arresting forces of a falling worker. For example, as the standard indicates, if a carrier consists of several sections, employers may need to use additional intermediate mountings. Therefore, the final rule requires that employers put intermediate mountings at those places along the carrier (e.g., by any splice on the carrier) where they are necessary to ensure the carrier has the strength to stop workers from falling to a lower level. OSHA believes requiring that employers install and space the mountings ‘‘as necessary’’ will ensure that employers inspect and evaluate where intermediate mountings are needed when they install ladder safety systems. OSHA did not receive any comments on the proposed provision and adopts it as explained above. Final paragraph (i)(4), similar to the proposed rule, requires that employers ensure flexible carriers have mountings attached at each end of the carrier. The final rule also requires the installation of cable guides for flexible carriers at least 25 feet apart, but not more than 40 feet apart, along the entire length of the carrier. The final rule is consistent with both the construction ladder standard (§ 1926.1053(a)(23)(ii)) and A14.3–2008 (Section 7.3.5). The purpose of the requirement is to ensure the system has the strength necessary to stop worker falls and, as the construction ladder standard indicates, to prevent wind damage to the ladder safety system and its components. OSHA did not receive any comments on the proposed provision and finalizes it with the clarifications discussed above. Final paragraph (i)(5), like the proposed rule, reinforces final paragraphs (i)(3) and (i)(4) by requiring employers to ensure that the design and installation of mountings and cable guides do not reduce the design strength of the ladder. The final rule is consistent with both the construction ladder standard in § 1926.1053(a)(23)(iii) and A14.3–2008 (Section 7.1.4). OSHA did not receive any comments on the proposed provision and adopts it with a minor change for clarity. Final paragraph (i)(6), like the proposed rule, requires that employers ensure ladder safety systems and their support systems are capable of withstanding, without failure, a drop test consisting of an 18-inch drop of a 500-pound weight. This drop test, therefore, must arrest and suspend the 500-pound weight without damage to or failure of the ladder safety system and VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 its support system and without the test weight hitting a lower level (such as the ground). The final rule is consistent with both the construction ladder standard in § 1926.1053(a)(22)(i) and A14.3–2008 (Section 7.1.3). Ellis recommended that the final rule include a test to determine whether horizontal thrust will cause the ladder safety system to fail (Ex. 155). He also recommended that the final rule incorporate the program of eight tests Great Britain’s Health and Safety Executive established. OSHA notes the A14.3 Committee did not adopt those tests, and footnote 7 in the A14.3–2008 standard states there is no scientific determination currently available (in 2008) on this issue to support any action. Ellis did not provide any evidence to support adopting his recommendation. Ameren recommended that OSHA only require that employers comply with the ladder safety systems criteria and practice requirements when they install new or replacement fixed ladders and ladder safety systems, stating, ‘‘It could very easily be financially burdensome for an employer to replace safe, operating systems to meet proposed requirements’’ (Ex. 189). The final rule basically follows the approach Ameren recommends. The final rule (final § 1910.28(b)(9)) does not require that employers immediately install ladder safety systems (or personal fall arrest systems) on existing fixed ladders (i.e., ladders installed before November 19, 2018) that have a cage or well. The final rule requires those employers to install a ladder safety system or personal fall arrest system: (1) When the employer replaces the fixed ladder or a section of it; or (2) by November 18, 2036, which is the final deadline for installing ladder safety systems (or personal fall arrest systems) on all fixed ladders. Paragraph (j)—Personal Fall Protection Systems Final paragraph (j), like the proposed rule, requires that body belts, body harnesses, and other components used in personal fall arrest systems, work positioning systems, and travel restraint systems, meet the applicable requirements in final § 1910.140. The final § 1910.140 preamble discusses the criteria and practice requirements for those personal fall protection systems, and addresses stakeholder comments. Paragraph (k)—Protection From Falling Objects As discussed earlier in this preamble, the final rule in § 1910.28(c) requires that employers protect workers from PO 00000 Frm 00143 Fmt 4701 Sfmt 4700 82635 being hit by falling objects by keeping objects, including tools, materials, and equipment, far enough away from the exposed edge to prevent them from falling to a lower level, and by using one or more of the following falling object protection measures: (1) Toeboards, screens, or guardrail systems; (2) canopy structures; or (3) barricading the area and prohibiting workers from entering the barricaded area. Final paragraph (k) establishes criteria and practice requirements for the measures that final § 1910.28(c) requires. The existing rule in § 1910.23(e)(4) contains limited requirements for toeboards and guardrails, and OSHA drew criteria and practice requirements for these measures from the construction fall protection standard in § 1926.502(j), A10.18–2012 (Section 4.1.5), and A1264.1–2007 (Section 5.7). Final paragraph (k)(1) establishes criteria and practice requirements for toeboards, which the final rule in § 1910.21(b) defines as a low protective barrier that is designed to prevent materials, tools, and equipment from falling to a lower level. The final definition also specifies that toeboards protect workers from falling to a lower level. Final paragraph (k)(1)(i), similar to proposed paragraph (k)(1), requires that employers ensure toeboards, when used for falling object protection, are erected along the exposed edge of the overhead walking-working surface for a length that is sufficient to protect workers below. In determining how much of the walking-working surface must have toeboards, employers not only must provide toeboards where objects are placed or piled, but also take into account that objects may move or roll on a walking-working surface before going over an exposed edge. In addition, employers must consider where employees may be working on a lower level. The final rule is consistent with the construction fall protection standard in § 1926.502(j)(1). OSHA did not receive any comments on the proposed provision and adopts it as proposed, with minor editorial revisions. Final paragraph (k)(1)(ii), like proposed paragraph (k)(2)(i), requires that employers ensure the minimum vertical height of toeboards is 3.5 inches, as measured from the top edge of the toeboard to the level of the walking-working surface. The existing rule in § 1910.23(e)(4) requires a fourinch nominal vertical toeboard height, but does not indicate the permissible deviation from that height. However, to make the provision consistent with the construction fall protection standard, E:\FR\FM\18NOR7.SGM 18NOR7 srobinson on DSK5SPTVN1PROD with RULES6 82636 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations OSHA proposed and adopts a 3.5-inch minimum vertical toeboard height. The final rule also is consistent with A1264.1–2007 (Section 5.7) and A10.18–2012 (Section 4.1.5). OSHA stresses that, like the construction fall protection standard in § 1926.502(j)(3), the required 3.5-inch toeboard height is the minimum height. If employers have objects or materials near the toeboard that are higher than the toeboard, they must ensure the toeboard height is sufficient to prevent the objects from falling over the edge to a lower level, as specified in final paragraph (k)(2). OSHA notes that when objects are piled higher than the toeboard, final paragraph (k)(2) requires employers to erect guardrail systems that have paneling or screening installed from the top edge of the toeboard to the top rail or midrail of the guardrail system. (See further discussion of final paragraph (k)(2) below.) OSHA did not receive any comments on the proposed requirement and finalizes it as discussed above. Final paragraph (k)(1)(iii), similar to existing § 1910.23(e)(4) and proposed paragraph (k)(2)(i), requires that employers ensure toeboards do not have an opening or clearance of more than 0.25 inches above the walking-working surface. This is measured from the walking-working surface to the bottom of the toeboard. The purpose of this requirement is to ensure that objects cannot fall off the walking-working surface through any drainage openings in the toeboard. The final rule is consistent with the construction fall protection standard (§ 1926.502(j)(3)), A10.18–2012 (Section 5.7), and A1264.1–2007 (Section 4.1.5). Final paragraph (k)(1)(iv) is a companion provision to final paragraph (k)(1)(iii). Like proposed (k)(2)(i), it requires that employers ensure toeboards are solid or, if they have openings, the openings do not exceed 1 inch at their greatest dimension. OSHA acknowledges that the toeboards employers use in outdoor work areas may need drainage openings to prevent water from collecting on the walkingworking surface, resulting in slips and falls. Therefore, this provision, along with final paragraph (k)(1)(iii), requires employers to ensure that such drainage openings do not exceed a height of 1⁄4 inch or a length of 1 inch. These provisions are substantively the same as the proposed language. However, the final rule (paragraphs (k)(1)(iii) and (iv)) simplifies and clarifies the proposed provision. The final rule separates the requirements into two provisions, which makes them easier to understand, and removes unnecessary language (e.g., VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 ‘‘vertical’’). The final rule also clarifies the requirements by specifying more clearly than the proposal that no opening in the toeboard shall exceed 1 inch in length (final paragraph (k)(1)(iv)) and 0.25 inches in height (final paragraph (k)(1)(iii)). These maximum dimensions will ensure that objects cannot fall through any opening in a toeboard. OSHA did not receive any comments on the requirements in proposed paragraph (k)(2)(i) and adopts final paragraphs (k)(1)(iii) and (iv) as discussed above. Final paragraph (k)(1)(v), like proposed paragraph (k)(2)(ii), requires that employers ensure toeboards used around vehicle repair, service, and assembly pits (pits) have a minimum height of 2.5 inches. The height is measured from the walking-working surface to the top edge of the toeboard. The final rule also includes an exception, which specifies that employers do not have to erect toeboards along the exposed edges of a pit if they can demonstrate the toeboard would prevent access to a vehicle that is over the pit. The final rule recognizes that shorter toeboards are adequate to protect workers from being hit by falling objects when vehicles are over the pit because the space between the toeboard and the vehicles is small enough to prevent most objects from falling into the pit. When vehicles are not over the pit, toeboards are not necessary because employees are not working in the pit and, thus, not exposed to a falling object hazard. Therefore, the exception is necessary because toeboards, even short ones, would prevent workers from accessing the vehicle to perform repair, service, or assembly work. The final rule clarifies the proposed toeboard exception in two respects. First, the final rule states more clearly than the proposal that the toeboard exception applies only when ‘‘employers can demonstrate’’ that erecting toeboards would prevent access to a vehicle. In the preamble to the proposal, OSHA explained that employers have the duty to show that toeboards would prevent vehicle access (75 FR 28899). The final rule adds that language to the regulatory text to clarify this requirement. Second, the final rule clarifies that the exception is limited. It only applies to those parts and sections of exposed edges where erecting toeboards would prevent access to a vehicle that is over a pit. The final rule still requires that employers erect toeboards at other exposed edges. OSHA did not receive any comments on the proposed PO 00000 Frm 00144 Fmt 4701 Sfmt 4700 provision and exception, and finalizes them with the clarifications explained above. Final paragraph (k)(1)(vi), like proposed paragraph (k)(4), requires that employers ensure toeboards are capable of withstanding, without failure, a force of at least 50 pounds, applied in any downward or outward direction at any point along the toeboard. OSHA drew the requirement from the construction fall protection standard in § 1926.502(j)(2). The existing rule in § 1910.23(e)(4) does not include this requirement; rather, the existing provision specifies that employers securely fasten toeboards and they be made of ‘‘any substantial material.’’ As defined in final § 1910.21(b), ‘‘failure’’ 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 component parts. Therefore, ‘‘without failure’’ means a toeboard must have adequate strength to remain in place and intact after applying 50 pounds in a downward or outward direction at any point along the toeboard. OSHA believes that the language in final rule and the construction fall protection standard is clearer, and provides employers with better guidance on compliance, than the existing rule. OSHA did not receive any comments on the proposed requirement and finalizes it as discussed above. Final paragraph (k)(2)(i), like proposed (k)(3), establishes criteria and practice requirements where tools, equipment, or materials are piled higher than the toeboard. Where such items are piled higher than the toeboard, the employer must install paneling or screening from the toeboard to the midrail of the guardrail system and for a length that is sufficient to protect employees below. If the items are piled higher than the midrail, the employer must install paneling or screening to the top rail of the guardrail and for a length that is sufficient to protect employees below. The final provision uses the same approach as the construction fall protection standard in § 1926.502(j)(4) when objects are piled higher than the toeboard. The construction standard requires that employers install paneling or screening from the walking-working surface or toeboard to the top of the guardrail or midrail. In addition to requiring that employers use guardrail systems in such cases, final § 1910.28(c)(2) requires that employers must protect workers from falling objects by keeping objects far enough from the exposed edges to prevent them from falling to a lower level. OSHA E:\FR\FM\18NOR7.SGM 18NOR7 srobinson on DSK5SPTVN1PROD with RULES6 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations believes that this two-pronged approach provides effective redundancy that will prevent falling objects from injuring or killing workers on lower levels. In addition, OSHA believes that following a similar approach to that in the construction standard will make compliance easier for employers who perform both general industry and construction activities. OSHA notes final paragraph (k)(2)(i) requires that employers use guardrail systems equipped with ‘‘paneling or screening’’ rather than vertical members specified in final § 1910.29(b). Even though the final rule requires that the distance between vertical members must not exceed 19 inches, OSHA believes that some items, such as heavy tools, can fall through those openings. Paneling, such as solid paneling, or screening will prevent piled objects from falling through the guardrail system to a lower level. Final paragraph (k)(2)(i), like proposed paragraph (k)(5), also requires that employers ensure the paneling or screening they install extends for a distance along the guardrail system that is sufficient to protect workers below from falling objects. The final rule is consistent with the guardrail requirement in final paragraph (b)(2) of this section, and the construction fall protection standard in § 1926.502(j)(4). Final paragraph (k)(2)(i) also is consistent with existing § 1910.23(e)(4). The A1264.1–2007 standard (Section 5.7) allows employers to use guardrail systems equipped with screening or additional toeboards, to protect workers from falling objects. Final paragraph (k)(2) consolidates into one provision the proposed criteria and practice requirements for guardrail systems used as falling object protection (see proposed paragraphs (k)(3) and (5)). OSHA believes this consolidation makes the final rule easier to understand and follow than the proposal. OSHA notes that, except when specified elsewhere, guardrail systems used for falling object protection also must meet the guardrail requirements in final paragraph (b) of this section, such as the strength requirements for paneling and screening (see final paragraph (b)(5)). OSHA received one comment on the proposed rule. Ellis supported the proposed requirement to install barriers to prevent objects from falling through openings (Ex. 155). He also recommended that materials used for paneling or screening include sheet metal, gratings, and netting (Ex. 155). OSHA notes that A1264.1–2007 (Section 5.7) requires that paneling or screening used for falling object protection have at VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 least 18-gauge thickness. Although the final rule uses performance-based language, OSHA notes that paneling or screening that meets the ANSI/ASSE standard would comply with final paragraph (k)(2). Final paragraph (k)(2)(ii), like proposed paragraph (k)(5), requires that employers ensure openings in guardrail systems are small enough to prevent objects from falling through the openings. The final rule is consistent with the construction fall protection standard in § 1926.502(j)(5). OSHA is adopting the proposed rule with only minor editorial change. Final paragraph (k)(3) establishes requirements for using canopies as falling object protection. Like proposed paragraph (k)(6), the final rule establishes a performance-based provision requiring that employers ensure canopies are strong enough to prevent collapse and penetration when struck by any falling object. The final rule adds language clarifying that the strength requirements in final paragraph (k)(3) only apply to canopies that employers use to protect workers from falling objects, not to all canopies. OSHA did not receive any comments on the proposed measure and finalizes the provision with the editorial change discussed above. Paragraph (l)—Grab Handles Final paragraph (l) specifies criteria and practice requirements for grab handles that employers provide, such as at a hoist area. Workers often use grab handles when they lean through or over the edge of the access opening to facilitate hoisting operations. The final rule in § 1910.21(b) defines a ‘‘hoist area’’ as any elevated access opening to a walking-working surface through which equipment or materials are loaded or received. The final rule does not retain a portion of proposed § 1910.28(b)(2)(ii), which required that employers provide a grab handle on each side of the access opening at hoist areas whenever guardrail systems, gates, or chains are removed to facilitate a hoisting operation and a worker must lean through the opening or over the edge of the access opening. However, if employers do provide grab handles, final paragraph (l) requires that they must ensure the grab handles meet the criteria and practice requirements in final paragraph (l). The existing rule requires that employers provide grab handles on each side of wall openings and holes, and on ‘‘extension platforms onto which materials can be hoisted for handling’’ (see existing § 1910.23(b)(1)(i) and (ii)), and also establishes criteria PO 00000 Frm 00145 Fmt 4701 Sfmt 4700 82637 that wall opening grab handles must meet (see existing § 1910.23(e)(10)). Neither the construction fall protection standard in § 1926.501 nor any national consensus standard requires the use of grab handles at hoist areas. OSHA decided to retain the criteria and practice requirements in final paragraph (l) to clarify that employers who provide grab handles must ensure those handles are safe and effective. Moreover, retaining the criteria and practice requirements addresses Ameren’s recommendation that OSHA explain what qualifies as a grab handle in the final rule, requesting that OSHA ‘‘be specific as to not cause confusion or misinterpretation’’ (Ex. 189). Final paragraph (l)(1), like the proposed rule, requires that grab handles employers provide must be at least 12 inches in length. This final provision is consistent with the existing rule in § 1910.23(e)(10). OSHA believes that 12-inch handles will provide workers with an adequate grip space. Final paragraph (l)(2), similar to existing § 1910.23(e)(10) and the proposed rule, specifies that grab handles employers install at hoist access openings must provide at least three inches of clearance from the framing or opening. OSHA believes a three-inch clearance is essential to ensure workers have adequate space to wrap their hands around the handle and grip it firmly, if they lean out of the opening during hoisting operations, thereby preventing falls. Final paragraph (l)(3), like the proposed rule, specifies that grab handles employers provide must be capable of withstanding a maximum horizontal pull-out force equal to two times the maximum intended load or 200 pounds, whichever is greater. The existing rule in § 1910.23(e)(10) has similar language requiring that grab handles be capable of withstanding 200 pounds applied horizontally at any point along the handle. OSHA believes the required strength criteria will ensure that grab handles remain in place when workers hold onto them and lean their bodies out of an access opening. OSHA is adopting final paragraph (l) with the clarifications discussed. Section 1910.30 Training Requirements Final § 1910.30, like the proposed rule, adds training requirements to 29 CFR part 1910, subpart D (subpart D). OSHA drew most of the new training requirements from the construction fall protection standard (29 CFR 1926.503). Final § 1910.30 requires training on fall and equipment hazards and, in certain situations, retraining. The final training E:\FR\FM\18NOR7.SGM 18NOR7 srobinson on DSK5SPTVN1PROD with RULES6 82638 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations requirements are performance based, and give employers flexibility to tailor the requirements and training methods to their workforce and workplace. Some commenters said that employers are not providing fall protection training, which puts employees at significant risk of injury (Exs. 329 (1/19/2011, p. 86); 329 (1/20/ 2011, p. 99)). One worker testified that he received no training at any company where he worked, saying, ‘‘It was learn as you go’’ (Ex. 329 (1/19/2011, p. 86)). OSHA believes that the new training requirements are necessary, and effective worker training is one of the most critical steps employers can take to prevent employee injuries and fatalities. Generally, commenters supported adding training requirements to subpart D (Exs. 53; 73; 96; 127; 172; 189; 205; 216; 222; 226; 329 (1/19/2011, pgs. 22, 24); 364). For example, the AFL–CIO said, ‘‘[T]raining requirements are necessary to ensure that workers can identify the fall hazards they face in their workplaces and understand how they can be protected’’ (Ex. 172). The American Society of Safety Engineers (ASSE) agreed, saying, ‘‘[A]ppropriate training is a key element of managing every kind of workplace safety risks’’ (Ex. 127). The National Grain and Feed Association (NGFA) stated, training ‘‘programs are vital, first and foremost, to safeguard lives and prevent injuries’’ (Ex. 329 (1/20/2011, p. 248)). Sam Terry, president of Sparkling Clean Window Company, and Dana Taylor, executive vice president of Martin’s Window Cleaning, also stressed that proper training is critical to reduce workplace injuries and illnesses (Exs. 222; 362). Mr. Terry said, ‘‘The lack of proper training is probably the most significant contributor to accidents and incidents when suspended work is performed’’ (Ex. 362). He added that most, if not all, of the accidents involving rope descent systems and suspended scaffolding since 1977 that he reviewed ‘‘could have been prevented if the employees had received proper training’’ (Ex. 163). Similarly, Mr. Russell Kendzior, president of the National Floor Safety Institute (NFSI), stated, ‘‘Approximately 8 percent of all slips, trips and falls are directly caused by improper or lack of employee training’’ (Ex. 329 (1/21/2011, p. 204)). The International Window Cleaning Association (IWCA), which has spent years researching and analyzing accident data and industry practices, told OSHA that ‘‘inadequate training’’ was one of the leading causes of accidents among window cleaners (Ex. 364). VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 Some commenters, however, opposed the proposed training requirements. Mr. Charles Lankford, of Rios & Lankford International Consulting, opposed the application of some training requirements because they do not exempt employers who rely exclusively on guardrails or safety net systems. He said, ‘‘[Those] systems . . . are completely passive in their protective characteristics and do not require any special knowledge on the part of the protected employees’’ (Ex. 368). OSHA does not agree with the commenter. Regardless of whether a fall protection system is passive, it will be effective only if it is installed, inspected, used, maintained, and stored properly and safely. OSHA believes that workers need special and specific knowledge to perform these tasks correctly. For example, to ensure that safety net systems protect employees in the event of a fall, employees must know, or be able to calculate, how much weight the net will hold in the particular situation. Therefore, OSHA believes that workers who use any type of fall protection system must receive proper training. (See discussion of final paragraph (b)(1) for additional explanation.) The National Chimney Sweep Guild (NCSG) opposed the proposed training requirements for workers who use personal fall protection systems, saying that they duplicated and overlapped the personal protective equipment (PPE) training that § 1910.132(f) requires: This would place an inappropriate and unnecessary burden on employers, employees and compliance personnel in sorting out the confusion presented by the redundant, overlapping and varying provisions addressing the same issues. Furthermore, unless the rule would allow sweeps to receive generic hazard training (rather than site-specific training), this requirement would be economically infeasible for sweeps (Ex. 150). As explained in the proposal, OSHA acknowledges that some of the training requirements in § 1910.30 may overlap those in § 1910.132. To the extent that any provisions do overlap, OSHA does not believe that it burdens employers because training that complies with one standard satisfies the employer’s obligation under the other standard. That said, OSHA believes that the training requirements in final §§ 1910.30 and 1910.132(f) complement each other and, therefore, ensure that workers receive comprehensive training. For example, final § 1910.30(a)(3)(i) requires that employers train workers how to recognize the need for PPE while § 1910.132(f)(1)(i) requires that employers train employees to know what PPE is necessary and fits. Also, PO 00000 Frm 00146 Fmt 4701 Sfmt 4700 § 1910.30(a)(iii) requires that employers train workers in the correct and safe use of personal fall protection systems, while § 1910.132(f)(1)(iv) requires training on the limitations of those systems. The final rule does not require that training be site-specific; that is, provided the site where employees are performing the job. However, to be effective the training that employers provide needs to address the hazards which their employees may be exposed. OSHA believes that NCSG already may be providing this training. For example, NCSG said they provide shop classes at individual businesses as well as on-thejob training. In addition NCSG said the chimney sweep training program lasts six to 12 months and during that training workers are ‘‘exposed to a lot of different situations’’ (Ex. 329 (1/18/ 2011), p. 274). Commenters also supported OSHA’s performance-based approach to the training requirements. For example, the National Cotton Ginners’ Association (NCGA) (Ex. 73) and the Texas Cotton Ginners’ Association (TCGA) (Ex. 96) both said, ‘‘We believe it is most beneficial to keep this section general so that each employer may review their own operation to determine which employees need to receive specific training.’’ Paragraph (a)—Fall Hazards Final paragraph (a), like the proposed rule, contains training requirements related to fall hazards.73 Final paragraph (a)(1), like the proposal, requires that employers train each employee who uses a personal fall protection system. Final § 1910.21(b) defines personal fall protection system as ‘‘a system an employee uses to provide protection from falling or to safely arrest an employee’s fall if one occurs.’’ Personal fall protection systems include personal fall arrest, travel restraint, and positioning systems (§ 1910.21(b)). Final paragraph (a)(1) also requires that employers train each worker required to receive training under subpart D. Subpart D requires worker training in several situations, including: • When employees use a rope descent system (RDS) (§ 1910.27(b)(2)(iii)); • When employees work on an unguarded working side of a platform 73 The final rule defines fall hazard as ‘‘any condition on a walking-working surface that exposes an employee to a risk of harm from a fall on the same level or to a lower level’’ (final § 1910.21(b)). However, for the purposes of final paragraph (a), ‘‘fall hazards’’ refers to the risk of falling four (4) feet or more to a lower level, except for falling into or onto dangerous equipment; for this exception, there is no limit to the distance an employee may fall to a lower level. E:\FR\FM\18NOR7.SGM 18NOR7 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations srobinson on DSK5SPTVN1PROD with RULES6 used on slaughtering facilities, loading racks, loading docks, or teeming platforms (§ 1910.28(b)(1)(iii)(C) and (b)(14)(ii)(C)); and • When employees operate motorized equipment on dockboards not equipped with fall protection (e.g., guardrails) (§ 1910.28(b)(4)(ii)(C)). In the proposed rule, OSHA invited comment on whether the final rule should expand the scope of the fall hazard training in paragraph (a)(1) to cover all fall hazards over four feet (including ladders); training on the safe use of ladders; and training to avoid slips, trips, and falls on the same level of a walking-working surface (75 FR 28900). Some commenters urged OSHA to expand the scope of the training requirements. For instance, Mr. Bill Kojola of the AFL–CIO said, ‘‘It is our view that the training requirements in the final rule need to be expanded to include training for all workers exposed to fall hazards over 4 feet (including those using ladders), those using portable guardrails, and for all workers using portable and fixed ladders’’ (Ex. 172; see also Ex. 329 (1/20/2011, p. 221)). He pointed out that the construction fall protection standard (§ 1926.503(a)(1)) requires that employers train each employee ‘‘who might be exposed to fall hazards,’’ noting further that ‘‘[i]f OSHA is committed to harmonizing its fall protection standards across industries . . . it needs to expand the final [rule] . . . and provide training for all workers who are exposed to fall hazards’’ (Ex. 172). Mr. Kojola also urged OSHA to expand training to cover ‘‘the hazards of falls on the same level’’ (Ex. 363). He cited the testimony of Mr. Kendzior (NFSI) who said that the current annual cost of falls to the same level ‘‘tops more than 80 billion dollars a year’’ (Ex. 363, citing Ex. 329 (1/21/2011, p. 201)). The American Federation of State, County and Municipal Employees (AFSCME) also supported expanding the scope of paragraph (a)(1), stressing the importance of training for employees who use ladders: Training should not be limited to workers who used a specific fall protection system. All workers should have hazard recognition training that includes prevention of falls from any height or surface. Because ladders are so common in the workplace, they are often considered ‘‘safe.’’ Yet many incident reports include injuries or near misses using a ladder. Any worker who is required to use a ladder in his/her work duties should get basic information on use, care, and limitations of ladders (Ex. 226). Ellis Fall Safety Solutions also supported adding ladder training to the final rule (Ex. 155). VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 On the other hand, some commenters opposed expanding the scope of the training requirements. NCGA and TCGA both said: It is a difficult task to predict where falls may occur in an individual operation and it becomes an insurmountable task to predict where falls are most likely to occur on a general industry basis. Having a more prescriptive list of instances in this section may lead an employer to focus on the list, rather than focusing on the areas of highest risk in his individual facility (Exs. 73; 96). After analyzing the comments and other information in the record, OSHA decided to adopt the proposed fall hazard training scope without substantive change. For several reasons, OSHA believes that the scope of final paragraph (a)(1) is appropriate, and it is not necessary to expand the paragraph’s scope. First, the scope of final § 1910.30(a)(1) is broad. It requires that employers train all workers who use personal fall arrest systems, travel restraint systems, and positioning systems. The final rule, like the proposal, gives employers great flexibility in selecting what type of fall protection system to use, and OSHA believes that many employers will use personal fall protection systems to protect their workers from fall hazards. Second, in addition to the workers who must receive training under final paragraph (a)(1), final § 1910.30(b) requires that employers also train each worker who uses equipment covered by subpart D in the proper use, inspection, care, maintenance, and storage of that equipment. The equipment includes, but is not limited to, ladder safety systems, safety net systems, portable guardrails, and mobile ladder stands and platforms. Thus, as AFL–CIO, AFSCME, and other commenters recommended, employers must train each worker who uses fixed ladders equipped with ladder safety systems so they know the proper use, inspection, care, maintenance, and storage of that equipment. Third, employees are also protected by the inspection, control, work practice, and design requirements in subpart D. For instance, final § 1910.23 specifies many design and work practice requirements for portable ladders. Under the final rule, employers are responsible for providing portable ladders that comply with the design requirements, as well as for ensuring that their workers understand and follow the work practices in § 1910.23. OSHA believes that the measures in the final rule, taken as a whole, establish an effective plan to protect workers from slip, trip, and fall hazards. PO 00000 Frm 00147 Fmt 4701 Sfmt 4700 82639 In final paragraph (a)(1), OSHA added language to clarify the date by which employers must train workers who use personal fall protection systems or who are required to be trained on fall hazards as specified elsewhere in subpart D. Additionally, the Agency added language to the final rule requiring employers to train workers before the worker can be exposed to the fall hazard. As noted in the preamble to the proposed rule, OSHA intended to include this language in the regulatory text (75 FR 28899). Accordingly, employers must train their current workers after OSHA publishes the final rule, and train newly-hired workers before initially assigning them to a job where they may be exposed to a fall hazard. To give employers adequate time in which to develop and provide initial training, OSHA is allowing employers six months, on or before May 17, 2017, to train their workers in the requirements specified in § 1910.30(a). Edison Electric Institute (EEI) said OSHA should not require employers to provide initial training if they have previously trained workers: The proposed regulation should allow employers to consider previously delivered training as compliant. Employers should not be required to retrain employees just because the new regulation is finalized. Work practices by many employers will not be changed by the new regulation and they should not be required arbitrarily to retrain employees (Ex. 207). OSHA agrees with EEI’s comment. An employer whose workers have received training, either from the employer or another employer, that meets the requirements of final § 1910.30(a) will not need to provide additional initial training. However, many of the training requirements in final § 1910.30 are new, and if the initial training workers already have received does not meet all of the requirements in the final rule, employers will need to provide initial training on those requirements. OSHA does not think the requirement to provide training for workers whose previous training does not meet the final rule or to provide initial training for new workers will pose significant difficulties for employers. Many commenters said that they train workers annually or continually (Ex. 329 (1/19/ 2011, pgs. 25, 45, 240, 413); 329 (1/20/ 2011, p. 284)). Since the final rule allows employers six months to provide initial training that complies with final § 1910.30, OSHA believes that most employers will be able to work the required training into their existing annual or continuing training schedule. Finally, in final paragraph (a)(1), OSHA deleted the second sentence of E:\FR\FM\18NOR7.SGM 18NOR7 srobinson on DSK5SPTVN1PROD with RULES6 82640 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations the proposed paragraph, and moved to it to final paragraph (a)(3). That sentence specified topics that training must cover (i.e., recognize the hazards of falling and understand the procedures to be followed to minimize the hazards), and OSHA believes it is most appropriate to group these topics with the other training topics in final paragraph (a)(3). Final paragraph (a)(2), like the proposed rule, requires that employers ensure a qualified person trains each worker in the requirements specified in § 1910.30(a). Final § 1910.21(b) 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. OSHA believes that having a person who has a degree, certificate, or professional standing (hereafter ‘‘degree’’) or extensive knowledge, training, and experience (hereafter ‘‘extensive knowledge’’) in fall hazards, and who demonstrates ability to solve problems related to fall hazards, will help to ensure that employees receive effective training. Moreover, to stress the importance of this requirement and its application to all the training that § 1910.30 requires, OSHA made a separate provision for this requirement in the final rule. OSHA notes that the construction fall protection standard, instead of specifying that a qualified person must train workers, requires that employers ensure that a competent person is qualified to train workers in each of the items and topics specified in § 1926.503(a)(2)(i)–(viii). Despite the difference in language between final §§ 1910.30(a)(2) and 1926.503(a)(2), OSHA believes the standards are consistent. OSHA believes that competent persons 74 ‘‘qualified’’ to train workers in all of the subjects and topics in the § 1926.503, or final § 1910.30, must have the capabilities of qualified persons. Accordingly, they must have capabilities (i.e., extensive knowledge and demonstrated ability to solve or resolve issues) beyond those capabilities specified for competent persons (i.e., to identify hazards and take corrective measures). 74 A ‘‘competent person,’’ is defined by the construction rule (§ 1926.32(f)), as one who is capable of identifying existing and predictable hazards in the surroundings or working conditions that are unsanitary, hazardous, or dangerous to employees, and who has authorization to take prompt corrective measures to eliminate them. VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 For purposes of the final rule, a trainer must have, at a minimum, a ‘‘degree’’ that addresses, or ‘‘extensive knowledge’’ of: The types of fall hazards, how to recognize them, and the procedures to minimize them; the correct procedures for installing, inspecting, operating, maintaining, and disassembling personal fall protection systems; and the correct use of personal fall protection systems and other equipment specified in § 1910.30(a)(1). Because of the breadth of knowledge and demonstrated ability trainers in the final rule must have, OSHA believes that specifying that qualified persons must train workers best describes the capabilities necessary for training workers in the subjects § 1910.30(a) requires. OSHA received several comments about the ‘‘qualified’’ person requirement in proposed paragraph (a)(2). Some commenters supported the proposed requirement. For instance, Mark Reinhart, owner of Award Window Cleaning Services (AWCS), said, ‘‘[T]raining must be by a person or persons that are experienced in the correct training procedures and competent in each area of training’’ (Ex. 216). He told of a company where he worked that used a veteran window cleaner to train a worker who, in turn, trained another worker: The problem was they were all trained to be risk takers—no safety lines, no three points of contact on ladders, no safety for the public, nothing at all about fall protection. So my employer put me at risk without knowing or researching the industry to find best practices or rules governing the window cleaning industry (Ex. 216). Mr. Andrew Horton, safety training coordinator with Service Employees International Union (SEIU) Local 32BJ, recommended OSHA require that only approved outreach trainers conduct training (Ex. 329 (1/19/2011, p. 26)). On the other hand, some commenters opposed the ‘‘qualified’’ person requirement in proposed (a)(2). One commenter said the requirement was ‘‘too stringent and restrictive’’ (Ex. 329 (1/20/2011, p. 298)). Mr. Lankford said that requiring qualified persons to train workers meant that trainers would have to be ‘‘a specialist in fall protection, such as a vendor, manufacturer or consultant-trainer’’ and not a ‘‘crew chief, foreman, operations person or similar positions, even if knowledgeable’’ (Ex. 368). Based on his interpretation of proposed paragraph (a)(2), Mr. Lankford concluded, ‘‘There is no convincing argument that the training would not be equally effective if provided by a competent person’’ (Ex. 368). PO 00000 Frm 00148 Fmt 4701 Sfmt 4700 OSHA believes Mr. Lankford’s interpretation of proposed paragraph (a)(2) is not accurate. The definition of ‘‘qualified’’ in the final rule (§ 1910.21(b)) allows employers to have crew chiefs, supervisors, operations personnel, or other individuals train workers, provided they have the necessary ‘‘degree’’ or ‘‘extensive knowledge’’ outlined in the definition of qualified, and specified in final § 1910.30(a). Final § 1910.30(a)(2) does not require that trainers possess a degree if they have the necessary knowledge, training, and experience. In fact, OSHA believes that many employers will draw upon the extensive knowledge and experience of their staffs to provide effective training. OSHA also notes that final § 1910.30(a)(2) does not require that employers use qualified persons who are employees. Employers are free to use outside personnel to train workers. Mr. Lankford and EEI also raised concerns that requiring a qualified person to train workers would prohibit employers from using different training formats and technologies (Exs. 207; 368). Mr. Lankford said, ‘‘The [qualified person] requirement seems to exclude the use of audio-visual or computerbased-training for the purpose of complying with this requirement’’ (Ex. 368). Addressing the same issue, EEI said: The OSHA regulation should allow employers to use technology to deliver training. Stand up training by a qualified person is not the only effective method of training. The OSHA regulation should allow employers to use computer based training, web based training, and video training to meet fall protection training requirements (Ex. 207). Final paragraph (a)(2) does not require or prohibit a specific format for delivering training to workers. OSHA supports the use of different formats (e.g., classroom, audio-visual, demonstration, practical exercises, field training, written) and new technology (e.g., online, interactive computerbased, web-based) to train workers in accordance with § 1910.30. Thus, final paragraph (a)(2) allows employers to use video-based training and computerbased training, provided that: • A qualified person, as defined in § 1910.21(b), developed or prepared the training; • The training content complies with the requirements in final § 1910.30; and • The employer provides the training in a manner each worker understands (§ 1910.30(d)). OSHA discusses this issue in further detail in the explanation of final paragraph (d) below. E:\FR\FM\18NOR7.SGM 18NOR7 srobinson on DSK5SPTVN1PROD with RULES6 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations OSHA notes that employers may provide training using a format that is web based or interactive computerbased. In such cases, a qualified person must be available to answer any questions workers may have to comply with final paragraph § 1910.30(a)(2). Final paragraph (a)(3) specifies the minimum subjects and topics that fall hazard training must cover. Final paragraph (a)(3) requires that employers provide training in at least the following topics: • The nature of fall hazards in the work area and how to recognize them (final paragraph (a)(3)(i)); • The procedures that must be followed to minimize the hazards (final paragraph (a)(3)(ii)); • The correct procedures for installing, inspecting, operating, maintaining, and disassembling the personal fall protection systems that the worker uses (final paragraph (a)(3)(iii)); and • The correct use of personal fall protection systems and equipment, including, but not limited to, proper hook-up, anchoring, and tie-off techniques, and methods of equipment inspection and storage as specified by the manufacturer (final paragraph (a)(3)(iv)). OSHA drew most of the requirements in final paragraph (a)(3) from the construction fall protection standard (§ 1926.503(a)(1) and (2)). However, OSHA revised final paragraph (a)(3) in several ways. First, as discussed above under final paragraph (a)(1), OSHA added to final paragraph (a)(3) the requirements to train workers in hazard recognition and the procedures to minimize fall hazards, which were in proposed paragraph (a)(1). Second, OSHA revised final paragraph (a)(3)(iv), proposed paragraph (a)(2)(iv), to eliminate training employees on the ‘‘limitations’’ of personal fall protection systems. OSHA believes it is not necessary to include that requirement in final paragraph (a)(3) because § 1910.132(f)(1)(iv) already requires training that addresses the limitations of PPE, which includes personal fall protection systems. Third, final paragraph (a)(3) does not include the proposed requirement that employers train workers in the use and operation of ‘‘guardrail systems, safety net systems, warning lines used in designated areas, and other protection’’ (proposed paragraph (a)(2)(iii)). OSHA does not believe this provision is necessary because final paragraph (b) already addresses most of these fall protection systems and measures. Finally, OSHA changed the word ‘‘erecting’’ to ‘‘installing’’ in final VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 paragraph (a)(3)(ii) (proposed paragraph (a)(2)(ii)). OSHA believes this clarification more accurately expresses the intent of the proposed paragraph. Although commenters generally supported the required worker training topics and subjects outlined in final paragraph (a)(3) (Exs. 53; 189; 216; 226), others said OSHA should increase or eliminate some of the training requirements. Mr. Horton said that window cleaners need more detailed training than what OSHA proposed (Ex. 329 (1/19/2011, p. 22)). The Society of Professional Rope Access Technicians (SPRAT) recommended that OSHA specify ‘‘at least topics for knowledge, skills, and capabilities for each level of employee,’’ and require specific training and certification by an industry organization for rope access (Ex. 205). OSHA did not incorporate SPRAT’s recommendations in the final rule. The Agency believes that the performancebased language in the final rule provides flexibility for employers, and does not prohibit employers from providing more specialized training or requiring certification or demonstration of the employee’s knowledge, skills, and capabilities. Ameren Corporation opposed requiring training to install and disassemble personal fall protection systems. Ameren said such training was not always necessary because some employees may not perform these tasks (Ex. 189). OSHA agrees that employers need not train employees in tasks that they do not perform. However, under the final rule, if a worker has to install and disassemble personal fall protection systems, the employer must ensure the worker knows how to perform those tasks safely and correctly before beginning the work. Paragraph (b)—Equipment Hazards Final paragraph (b), like the proposed rule, contains training requirements related to equipment hazards. The provisions require that employers ensure workers are trained in the following: • The proper care, inspection, storage, and use of equipment covered by subpart D (final paragraph (b)(1)); • How to properly place and secure dockboards to prevent unintentional movement (final paragraph (b)(2)); • How to properly rig and use a rope descent system (RDS) (final paragraph (b)(3)); and • How to properly set up and use designated areas (final paragraph (b)(4)). Final paragraph (b)(1) applies to the extent that workers use equipment covered by subpart D. Under this provision employers must train workers PO 00000 Frm 00149 Fmt 4701 Sfmt 4700 82641 in equipment as well as fall protection systems that final paragraph (a) does not cover. Therefore, as mentioned above, training in final paragraph (b)(1) must cover equipment such as safety net systems, ladder safety systems, warning lines, portable guardrails, and motorized materials handling equipment used on dockboards. EEI said that OSHA should not require training in portable guardrails because ‘‘the purpose and use of these devices is obvious’’ (Ex. 207). While some workers may know how to set up and use portable guardrails, the same is not true for all workers, particularly new workers. Thus, final paragraph (b)(1) must cover portable guardrails to protect all workers from falls. OSHA added language to final paragraph (b)(1) to clarify the date by which employers must train workers in equipment hazards. Accordingly, employers must train their current workers after OSHA publishes the final rule, and train newly hired workers before initially assigning them to a job where they may be exposed to a fall hazard. To give employers adequate time in which to develop and provide initial training, OSHA is allowing employers six months, until May 17, 2017, to provide the required training. Like final paragraph (a), employers whose workers have received training, either from the employer or another employer, that meets the requirements of final § 1910.30(b) will not need to provide additional initial training to those workers. However, the training requirements in final § 1910.30 are new, and if the initial training workers already have received does not meet all of the requirements in the final rule, employers will need to provide initial training on those requirements. Final paragraph (b)(2) requires employers to train workers who use dockboards on how to properly place and secure them to prevent unintentional movement. The Agency believes training in the proper positioning of dockboards (e.g., adequate overlap, secure position) to avoid unintentional movement is needed to help prevent worker injury. OSHA did not make any substantive changes to proposed paragraph (b)(2) and did not receive any comments. OSHA has adopted paragraph (b)(2) with only minor revisions for clarity. Final paragraph (b)(3) requires employers to train workers who use RDS in the proper rigging and use of the equipment, in accordance with § 1910.27. The final rule eliminates the retraining requirement specified for RDS in proposed paragraph (b)(3) because final paragraph (c) of final § 1910.30 E:\FR\FM\18NOR7.SGM 18NOR7 82642 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations already requires retraining. A number of commenters supported OSHA’s RDS training requirements, particularly in the window cleaning industry (Exs. 65; 66; 76; 137; 222; 362; 364). Gerard McEneaney, business representative of the Window Cleaners Division of SEIU Local 32BJ, also supported the RDS training requirements, stating, ‘‘RDS relies heavily on training, workplace practices, and administrative controls to overcome its inherent dangers’’ (Ex. 329 (1/19/11, p. 17)). OSHA notes that workers using RDS are exposed to fall hazards and must use personal fall arrest systems; therefore, employers must train them as required by final § 1910.30(a). Paragraph (b)(4) is a new paragraph that OSHA added to the final rule requiring employers to train each worker who uses a designated area in the proper set up and use of the area. OSHA inadvertently left this training requirement out of the proposed rule. But OSHA intended to include this requirement in the proposed rule, and the preamble noted that ‘‘it is essential for authorized employees in designated areas’’ to be trained (75 FR 28889). Under the final rule in some situations OSHA permits employers to protect workers from ‘‘unprotected sides and edges’’ on low-slope roofs by using designated areas, which final § 1910.21(b) defines as ‘‘a distinct portion of a walking-working surface delineated by a warning line in which work may be performed without additional fall protection.’’ Designated areas are not conventional fall protection systems or engineering controls. Designated areas are alternative fall protection methods that are effective only when set up and used correctly and safely. This alternative method relies heavily on employers properly delineating the designated area and successfully keeping workers within that area. To ensure workers follow the requirements for designated areas, OSHA believes it is important that employers train them so they know when they can use designated areas and how to set up designated areas and work in them safely. srobinson on DSK5SPTVN1PROD with RULES6 Paragraph (c)—Retraining Final paragraph (c), like the proposal, requires that employers retrain workers when they have reason to believe that those workers do not have the understanding and skill that final paragraphs (a) and (b) require. In particular, final paragraph (c) requires that employers retrain workers in situations including, but not limited to, the following: VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 • When workplace changes render previous training obsolete or inadequate (final paragraph (c)(1)); • When changes in the types of fall protection systems or equipment workers use renders previous training obsolete or inadequate (final paragraph (c)(2)); or • When inadequacies in a worker’s knowledge or use of fall protection systems or equipment indicate that the worker does not have the requisite understanding or skill necessary to use the equipment or perform the job safely (final paragraph (c)(3)). The training requirements in this section impose an ongoing responsibility on employers to maintain worker proficiency. As such, when workers are no longer proficient, the employer must retrain them in the requirements of final paragraphs (a) and (b) before workers perform the job again. Examples of when retraining is necessary include: • When the worker performs the job or uses equipment in an unsafe manner; • When the worker or employer receives an evaluation or information that the worker is not performing the job safely; or • When the worker is involved in an incident or near-miss. Several commenters supported the proposed retraining requirements. For example, Andrew Horton, representing the SEIU Local 32BJ Window Cleaning Apprentice Training Program, said retraining is ‘‘imperative whenever there are changes in the working conditions, or there is an indication that prior training has not been effective’’ (Ex. 329 (1/19/2011, p. 24)). OSHA received only one comment opposing retraining. Mr. Steve Smith of Verallia said the proposed retraining requirement was ‘‘too subjective and vague to allow for consistent application and/or enforcement.’’ He recommended that OSHA require ‘‘training upon initial employment and annually thereafter,’’ which OSHA’s portable fire extinguisher standard requires (§ 1910.157) (Ex. 171). OSHA disagrees that the performancebased language in proposed paragraph (c) is too vague and subjective. OSHA believes that final paragraph (c) specifies clearly when retraining is necessary. The language in final paragraph (c) is similar to the retraining provisions in other OSHA standards, including the PPE (§ 1910.132(f)(3)), lockout/tagout (§ 1910.147(c)(7)(iii)), and powered industrial truck standards (§ 1910.178(l)(4)). Those standards have been effective in ensuring that workers receive additional training when necessary. OSHA also believes that the PO 00000 Frm 00150 Fmt 4701 Sfmt 4700 performance-based retraining requirements in final paragraph (c) provide greater flexibility for employers than requiring annual retraining. OSHA also disagrees with Mr. Smith’s recommendation that OSHA limit the final rule to ‘‘training upon initial employment and annually thereafter.’’ This language appears to require that employers must train new workers, but would not have to train current employees after OSHA publishes the final rule. As discussed above, OSHA believes that employers need to provide retraining to current workers in accordance with final § 1910.30 when previous training is obsolete or inadequate. Finally, OSHA believes that identifying the specific situations when employers must provide retraining more precisely targets the real need for additional training than does an inflexible requirement such as annual training. Therefore, OSHA believes the final rule will be more effective, and will provide employers with more flexibility, than the alternative Mr. Smith recommends. Paragraph (d)—Training Must Be Understandable Final paragraph (d), like the proposed rule, requires that employers provide information and training to each worker in a manner that the employee understands. This language indicates that employers must provide information and instruction in a manner that workers receiving the training are capable of understanding so they will be able to perform the job in a safe and proper manner. The final rule makes clear that training must account for the specific needs and learning requirements of each worker. For example, if a worker does not speak or adequately comprehend English, the employer must provide training in a language that the worker understands. Also, if a worker cannot read, employers will need to use a format, such as audio-visual, classroom instruction, or a hands-on approach, to ensure the worker understands the training they receive. Similarly, if a worker has a limited vocabulary, the employer must provide training using vocabulary the worker comprehends. An increasing number of employers are using computer-based and webbased training (Exs. 207; 329 (1/20/ 2011, p. 191); 368). In such situations, final paragraph (d) requires that employers ensure that workers have adequate computer skills so they can operate the program and understand the information presented. Moreover, to ensure that employees ‘‘understand’’ computer-based training, as well as E:\FR\FM\18NOR7.SGM 18NOR7 srobinson on DSK5SPTVN1PROD with RULES6 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations other types of training, OSHA believes it may be necessary for employers to ensure that a qualified person is available to answer questions and clarify information. For example, when employers use computer-based training, they could make a qualified person ‘‘available’’ through an interactive computer program (e.g., WebEx), or have a qualified person present to answer questions. (For additional information on making training understandable, see OSHA’s Training Standards Policy Statement).75 OSHA believes that employers should not have difficulty complying with final paragraph (d), or any other provision in § 1910.30. Many industry, labor, and professional organizations; training consultants; vendors; and manufacturers already provide employers with training and training materials to ensure that workers understand how to perform the job and use equipment correctly and safely (Exs. 329 (1/18/2011, pgs. 82, 117, 186, 258); 329 (1/20/2011, pgs. 182, 287); 329 (1/21/2011, pgs. 9, 92, 200, 206)). A number of commenters said they already provide bi-lingual or multilingual training (Exs. 329 (1/19/2011, pgs. 118, 241, 319, 352, 413, 416, 462)). In addition, training and professional organizations have bi-lingual training materials available. For instance, the International Window Cleaning Association Safety Certification Program provides a bi-lingual study curriculum (Ex. 222). Many commenters said they already use different formats (e.g., classroom, audiovisual, demonstration, practical exercises, field training, written) and new technology (e.g., interactive computer-based, web-based) to ensure that training is understandable (Ex. 329 (1/18/2011, pgs. 148, 258)). Commenters also said they use testing and training evaluation to ensure employees understand training (Ex. 329 (1/20/2011, p. 318)). Some commenters also supported certification of employee training by independent groups (e.g., professional organizations) (Exs. 205; 222; 364). Some commenters said they are using ‘‘interactive training’’ to make training understandable. For instance, SEIU Local 32BJ said their window cleaner training programs are ‘‘highly interactive’’ (Ex. 329 (1/19/2011, pgs. 120–121)), and they support requiring ‘‘interactive’’ training. Diane Brown, senior health and safety specialist with 75 OSHA’s Training Standards Policy Statement is available from OSHA’s website at: https:// www.osha.gov/dep/standards-policy-statementmemo-04-28-10.html. VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 AFSCME, agreed, stating, ‘‘Training should be as interactive as possible. We support . . . [adopting] training methods that ensure workers get the information they need’’ (Ex. 226). Eric Frumin, health and safety director with Change to Win, stated: [I]t’s not sufficient for OSHA to simply require employers to provide training in a language that workers understand. . . . It’s one of the most important advances in OSHA rulemaking, to assure that the training is not only done in a language the workers understand, but that it’s interactive, that workers have a chance to ask questions (Ex. 329 (1/19/2011, p. 119)). Some commenters said OSHA should require that employers use specific training methods and techniques. For example, SEIU said training should include ‘‘some combination of hands-on and classroom training methods that have been so successful in our training’’ (Ex. 329 (1/19/2011, pgs. 25–26)). Ellis Fall Safety Solutions said that training methods must include the following: [T]here has to be a written curriculum, a presentation and written or recorded tests [that] see if the material has been picked up and the final thing is to check by observing discretely if the work is being done to the proper methodology that was taught. All these are subject to verification by a CSHO (Ex. 155). Some commenters said that supervision is necessary to ensure training is successful. For instance, Mr. Frumin said, ‘‘You can’t take the chance that someone didn’t understand the training. You’ve got to supervise them,’’ (Exs. 329 (1/19/2011, pgs. 122–23); 329 (1/21/2011, p. 21)). OSHA agrees that many of the training methods and elements the commenters recommend can help to make workplace training understandable, and generally supports their use. The Agency also believes that the final rule should give employers flexibility to develop training programs and use those training methods that best fit the needs of their workers and workplace. Therefore, OSHA finalizes paragraph (d) with only minor revisions for clarity. OSHA also received comment on other training issues, including whether the final rule should require a minimum amount of time for worker training. Mr. Horton of SEIU Local 32BJ urged that OSHA mandate that training be a ‘‘minimum number of hours to prevent any inadvertent or negligent training failures’’ (Ex. 329 (1/19/2011, p. 25)). In contrast, Mr. Robert Miller, senior safety supervisor with Ameren Corporation, said OSHA should not set time requirements for providing training because it would interfere with the PO 00000 Frm 00151 Fmt 4701 Sfmt 4700 82643 performance-based approach in the proposed rule (Ex. 189). Proposed § 1910.30 did not require that training meet a minimum time requirement, and there is no minimum time requirement for training in final § 1910.30. OSHA notes that the preliminary and final economic analysis include times for training, but the Agency notes that it included those times only for the purpose of the estimating the costs of the final rule. Finally, ASSE suggested that § 1910.30 include a specific reference to the ANSI/ASSE Z490.1 consensus standard (Criteria for Accepted Practices in Safety, Health and Environmental Training) as a source of guidance information for employers (Ex. 127). That voluntary standard establishes criteria for safety, health, and environmental training programs. OSHA agrees that the consensus standard may be a valuable source of information about training programs. However, it does not address walking-working surfaces or fall and equipment hazards and OSHA has decided to not reference the standard in the final rule. B. Final § 1910.140 OSHA is adding a new section to subpart I Personal Protective Equipment (PPE) (29 CFR 1910, subpart I) to address personal fall protection systems, which include personal fall arrest, travel restraint, and positioning systems (29 CFR 1910.140). The new section establishes requirements for the design, performance, use, and inspection of personal fall protection systems and system components (e.g., body harnesses, lifelines, lanyards, anchorages). OSHA also is adding two nonmandatory appendices that provide information to help employers select, test, use, maintain, and inspect personal fall protection equipment (Appendix C) and examples of test methods for personal fall arrest and positioning systems to ensure that they meet the requirements of § 1910.140 (appendix D). In the final rule, OSHA adapts many provisions from its other fall protection standards, primarily Powered Platforms for Building Maintenance (29 CFR 1910.66, appendix C); Personal Fall Arrest Systems in Shipyard Employment (29 CFR 1915.159); Positioning Device Systems in Shipyard Employment (29 CFR 1915.160); and Fall Protection in Construction (29 CFR part 1926, subpart M). These adaptations ensure that OSHA fall protection rules are consistent across various industries. OSHA notes that other standards also require the use of E:\FR\FM\18NOR7.SGM 18NOR7 82644 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations srobinson on DSK5SPTVN1PROD with RULES6 personal fall protection systems (Vehicle-Mounted Elevating and Rotating Work Platforms (Aerial Lifts) (29 CFR 1910.67(c)(2)(v)); Telecommunications (29 CFR 1910.268(g)); and Electric Power Generation, Transmission, and Distribution (29 CFR 1910.269(g)); however, the requirements and criteria in those standards generally are not comprehensive or broadly applicable. Similar to the final rule revising 29 CFR part 1910, subpart D, final § 1910.140, when appropriate, also draws from national consensus standards addressing personal fall protection systems. Those standards include: • ANSI/ALI A14.3–2008, American National Standards for Ladders—Fixed (A14.3–2008) (Ex. 8); • ANSI/ASSE A10.32–2012, Personal Fall Protection Used in Construction and Demolition Operations (A10.32– 2012) (Ex. 390); • ANSI/ASSE Z359.0–2012, Definitions and Nomenclature Used for Fall Protection and Fall Arrest (Z359.0– 2012) (Ex. 389); • ANSI/ASSE Z359.1–2007, Safety Requirements for Personal Fall Arrest Systems, Subsystems, and Components (Z359.1–2007) (Ex. 37); • ANSI/ASSE Z359.3–2007, Safety Requirements for Positioning and Travel Restraint Systems (Z359.3–2007) (Ex. 34); • ANSI/ASSE Z359.4–2013, Safety Requirements for Assisted-Rescue and Self-Rescue Systems (Z359.4–2013) (Ex. 22); • ANSI/ASSE Z359.12–2009, Connecting Components for Personal Fall Arrest System (Z359.12–2009) (Ex. 375); and • ANSI/IWCA I–14.1–2001, Window Cleaning Safety (I–14.1–2001) (Ex. 10). The final rule adopts a number of the provisions in proposed § 1910.140 with only minor, non-substantive technical or editorial changes. For many of these provisions, OSHA did not receive any comments from the public. Other provisions in the final rule include revisions based on information in the record and comments OSHA received. OSHA also revised provisions in the proposed rule to clarify the final rule, thereby making it easier for employers, workers, and others to understand. Section 1910.140—Personal Fall Protection Systems Paragraph (a)—Scope and Application Paragraph (a) of the final rule specifies that employers must ensure each personal fall protection system that part 1910 requires complies with the VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 performance, care, and use criteria specified in § 1910.140. This section defines ‘‘personal fall protection system’’ as a system that workers use to provide protection from falling, or safely arrest a fall if one occurs (§ 1910.140(b)). As mentioned earlier, personal fall protection systems include personal fall arrest, travel restraint, and positioning systems. OSHA notes that not only does § 1910.140 apply to the new and revised requirements in subpart D, but also it applies to existing requirements in part 1910 that mandate or allow employers to protect workers from fall hazards using personal fall protection systems (§§ 1910.66; 1910.67; 1910.268; and 1910.269). OSHA believes that the scope of final § 1910.140 and the requirements the final rule establishes are necessary. Importantly, OSHA did not receive any comments opposing the scope and application in paragraph (a). OSHA believes that without establishing design and performance criteria, there is risk that personal fall protection systems, particularly personal fall arrest systems, may fail and put workers at risk of harm. Such failure can occur for a number of reasons, including using: • The wrong or inadequate system (especially one that is not strong enough for the particular application in which it is being used); • A system not tested or inspected before use; • A system not rigged properly; • A system that does not have compatible components; or • A system on which workers are not properly trained. For several reasons, OSHA believes that employers should not experience significant difficulty complying with the final rule. Most of the requirements in the final rule come from OSHA’s existing fall protection standards, as well as national consensus standards addressing fall protection, which also have been in place for years and represent industry best practices. Accordingly, OSHA believes that virtually all personal fall protection systems manufactured today meet the requirements in those standards as well as final § 1910.140. In addition, to assist employers in complying with the rule, OSHA includes an appendix in the final rule to provide employers with readily accessible information that will help them comply with final § 1910.140. Paragraph (b)—Definitions Final paragraph (b) defines terms that are applicable to final § 1910.140. OSHA believes that defining key terms will PO 00000 Frm 00152 Fmt 4701 Sfmt 4700 make the final rule easier to understand and, thereby, will increase compliance. OSHA drew most of the definitions in paragraph (b) from existing OSHA and national consensus standards on fall protection. For instance, many of the terms in this paragraph also are found in the Powered Platforms standard (§ 1910.66(d) and appendix C); construction standards (§§ 1926.450(b), 1926.500(b) and 1926.1050(b)), and the shipyard employment PPE standard (§ 1915.151). OSHA believes that having consistent definitions across the Agency’s standards will increase understanding of OSHA’s fall protection rules, decrease the potential for confusion, and enhance worker safety. Having consistent definitions also will help to increase understanding and compliance for workers engaged in more than one type of work, such as general industry and construction activities. Final paragraph (b) differs from the proposed rule in several respects. First, the final rule does not retain the proposed definitions for the following terms because OSHA does not use these terms in final § 1910.140: ‘‘buckle’’ and ‘‘carrier.’’ Second, final paragraph (b) adds two new terms to the proposed definitions: ‘‘carabiner’’ and ‘‘safety factor.’’ Third, the final rule also substantially modifies the definition of ‘‘competent person’’ from the proposed rule. OSHA believes that additional revisions, particularly those made in response to commenter suggestions, clarify the meaning of the terms, and ensure that they reflect current industry practice. OSHA carries forward the following terms and definitions from the proposed rule without change, or with mostly minor editorial and technical changes. 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. OSHA believes many of the remaining definitions are ‘‘terms of art’’ universally recognized by those who use personal fall protection systems. Even so, OSHA still received comments on a number of the definitions, as discussed below. Anchorage. The final rule, like the proposal, defines ‘‘anchorage’’ as a secure point of attachment for equipment such as lifelines, lanyards, or deceleration devices. The definition in the final rule is consistent with the one in OSHA’s Powered Platforms, construction, and shipyard employment fall protection standards (§§ 1910.66, appendix C, Section I(b); 1915.151(b); 1926.500(b)) as well as the definition in E:\FR\FM\18NOR7.SGM 18NOR7 srobinson on DSK5SPTVN1PROD with RULES6 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations A10.32–2012 (Section 2.4) and Z359.0 (Section 2.5). OSHA notes that the anchorage definition in the Powered Platforms standard requires that the anchorage must be ‘‘independent of the means of supporting or suspending the employee.’’ The final rule also includes this requirement in § 1910.140(c)(12), discussed below. OSHA did not receive any comments on the proposed definition. Belt terminal. As defined in the final rule, this term means an end attachment of a window cleaner’s positioning system used to secure the body harness or belt to the window cleaner’s belt anchor. The term is specific to fall protection for window cleaning operations. Neither existing OSHA fall protection standards nor I–14.1–2001 define the term. Although OSHA believes the meaning of ‘‘belt terminal’’ is clear, the Agency is including the definition in the final rule to clarify the system or criteria of requirements for window cleaner’s positioning systems (see discussion of § 1910.140(e)). OSHA did not receive any comments or opposition to including the definition, and adopts the definition as proposed. Body belt. The final rule defines ‘‘body belt’’ as a strap with means both for securing it about the waist and for attaching it to other components such as a lanyard used with positioning, travel restraint, or ladder safety systems. The definition of ‘‘body belt’’ in final rule generally is consistent with OSHA’s Powered Platforms, construction, and shipyard employment fall protection standards (§§ 1910.66, appendix C, Section I(b); 1915.151(b); 1926.500(b)). However, those definitions do not specify with which systems employers may use body belts. The final rule clarifies that employers may use body belts only with positioning, travel restraint, and ladder safety systems, and the final rule adds language specifying that employers cannot use body belts with personal fall arrest systems (see discussion in § 1910.140(d)(3)). Including this language makes the final definition consistent with the definition in A10.32. That standard defines ‘‘body belt,’’ which it also refers to as a safety or waist belt, as ‘‘support which is used for positioning, restraint or ladder climbing only’’ (A10.32–2012, Section 2.8). The Z359.0 standard uses the term ‘‘body support’’ instead of body belt, and defines it as ‘‘an assembly of webbing arranged to support the human body for fall protection purposes, including during and after fall arrest’’ (Section 2.17). A note to the definition VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 explains that body support generally refers to a harness (full body, chest, chest-waist) or body belt. OSHA did not receive any comments on the definition and adopts the definition as proposed. Body harness. The final rule defines ‘‘body harness’’ as straps that secure about a worker in a manner that distributes fall arrest forces over at least the worker’s thighs, pelvis, waist, chest, and shoulders should a fall occur. The final rule specifies that a body harness also is a means for attaching it to other components of a personal fall protection system. The final rule is nearly identical to the definition of ‘‘body harness’’ in OSHA’s Powered Platforms, construction, and shipyard employment fall protection standards (§§ 1910.66, appendix C, Section I(b); 1915.151(b); 1926.500(b)), as well as the definition of ‘‘body support’’ in A10.32 (Section 2.9). The Z359.0 standard includes definitions of various types of body harnesses, including chest harnesses, chest-waist harnesses, evacuation harnesses, full-body harnesses, and positioning harnesses. The definition in the final rule is consistent with the ‘‘full body harness’’ definition in Z359.0 (Section 2.83). In the proposal, OSHA requested comment on whether the Agency should define other types of harnesses in the final rule, specifically those harnesses that do not have a waist strap or component (75 FR 28903). ISEA (Ex. 185) and CSG (Ex. 198) both said that ISEA-member companies reported that it was more common for body harnesses not to have waist straps. They said this type of harness distributes fall arrest forces over the entire torso and has assemblies that prevent the shoulder straps from separating to the extent that the worker could fall out of the harness. OSHA concludes that this type of harness meets the definition of ‘‘body harness,’’ and it is not necessary to revise the term. However, in the final rule, OSHA did not include the other specific types of body harnesses (e.g., chest-waist, chest) listed in Z359.0. The other types of harnesses do not spread fall arrest forces across a broad area of the body, and the final rule does not permit their use. With one exception, the definition in the final rule also is consistent with I– 14.1–2001. The definition of ‘‘body harness’’ in I–14.1–2001 permits the distribution of fall arrest forces over ‘‘any combination’’ of the thighs, pelvis, waist, chest, and shoulders, rather than across all of those parts of the worker’s body combined (Section 2). The final rule, by contrast, does not incorporate the ‘‘any combination’’ language in I– PO 00000 Frm 00153 Fmt 4701 Sfmt 4700 82645 14.1. OSHA believes that adopting the language from I–14.1–2001 would allow employers to use harnesses that concentrate fall arrest forces in a small anatomical area, rather than across the entire torso and thighs. The dangers of concentrating fall arrest forces in a limited anatomical area (e.g., waist and chest only) are well documented. In the proposed rule, OSHA discussed research of Dr. Maurice Amphoux, et al. conducted on the use of thoracic harnesses for personal fall arrest. Their study concluded that such harnesses are not suitable for personal fall arrest because the forces transmitted to the body during post-fall suspension constricted the rib cage and could cause asphyxiation (75 FR 28903). The proposed rule also identified an increased danger of falling out of chestwaist harnesses. Therefore, OSHA believes that the definition of ‘‘body harness’’ in the final rule is more protective than the one in I–14.1–2001. Carabiner. The final rule defines carabiner as a connector comprised generally of a trapezoidal or oval-shaped body with a closed gate or similar arrangement that may be opened to attach another object. When released, the carabiner gate automatically closes to retain the object. There are generally three types of carabiners: • Automatic locking, with a selfclosing and self-locking gate that remains closed and locked until intentionally unlocked and opened for connection or disconnection; • Manual locking, with a self-closing gate that must be manually locked by the user and that remains closed and locked until intentionally unlocked and opened by the user for connection or disconnection; and • Non-locking, with a self-closing gate cannot be locked. Commenters recommended that OSHA apply to carabiners the same criteria applicable to snaphooks (Exs. 185; 198). For example, the International Safety Equipment Association (ISEA) said that applying the snaphook performance criteria to carabiners would ensure that the final rule specifically covers the two most common types of connectors (Ex. 185). OSHA agrees, and added a definition of carabiner to the final rule that is almost identical to the one in Z359.0–2012 (Section 2.20) and A10.32–2012 (Section 2.12). Those definitions note that there are three types of carabiners: Automatic locking (i.e., self-closing and self-locking), manual locking, and nonlocking. The final rule, like Z359.0 and A10.32, only allows the use of automatic-locking carabiners and snaphooks. E:\FR\FM\18NOR7.SGM 18NOR7 srobinson on DSK5SPTVN1PROD with RULES6 82646 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations Competent person. In the final rule, OSHA defines a ‘‘competent person’’ as a person who: • Is capable of identifying existing and predictable hazards in any personal fall protection system or component as well as in their application and uses with related equipment; and • Has the authorization to take prompt corrective measures to eliminate the identified hazards. The definition in the final rule differs from the proposed definition in two ways. First, the final rule requires that the competent person be capable of identifying both ‘‘existing and predictable hazards,’’ while the proposal specified that the competent person identify existing ‘‘hazardous or dangerous conditions.’’ Second, the final rule adds language specifying that competent persons must have authority to take prompt, corrective actions to eliminate the hazards that they identified. These changes expand the definition of competent person and make the final rule consistent with the definition applicable to OSHA’s construction standards (§ 1926.32), as well as the definition in Z359.0–2012 (Section 2.30) and A10.32–2012 (Section 2.16). Under the final rule employers must ensure that the worker(s) they select to be the competent person(s) have the capability and competence to identify existing hazards and predictable hazards (i.e., hazards likely to occur when using personal fall protection systems, components, and related equipment). Competent persons working with personal fall protection systems in construction already must be able to identify both existing and predictable hazards. OSHA believes that requiring the same of competent persons in general industry establishments that also perform construction activities should not pose a problem, especially since they may be the same person. OSHA added the language requiring that competent persons have authority to take prompt corrective action in response to the large number of commenters who urged OSHA to adopt that language from OSHA’s construction standards (§ 1926.32), Z359.0, and A10.32. OSHA did not include the language in the proposed rule because the Agency believed that competent persons dealing with personal fall protection systems in general industry were likely to serve a different function than competent persons in the construction industry (75 FR 28904). In the preamble to the proposed rule, OSHA said that the competent person in general industry most likely would be an outside contractor who specializes in VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 fall protection systems, designs fall protection systems, and/or provides fall protection training. OSHA said it would be unlikely that employers would grant an outside contractor authority over work operations. In addition, OSHA said it did not believe the definition of competent person in § 1926.32 was widely recognized and accepted in general industry. Thus, in the proposed rule OSHA used the definition of competent person from appendix C of § 1910.66. By contrast, when OSHA promulgated the construction fall protection standards, the Agency applied the definition of ‘‘competent person’’ in § 1926.32 because the Agency found that the construction industry widely recognized the term, which OSHA adopted in 1971 pursuant to Section 6(a) of the OSH Act (29 U.S.C. 655(a)). However, commenters on the proposed rule said that the construction industry definition is as widely known, accepted, and used in general industry as it is in the construction industry (Exs. 74; 122). They urged OSHA to incorporate the construction industry definition of competent person in § 1910.140. Many commenters who disagreed with the proposed definition said that it is essential that the competent person have authority to take prompt corrective action when they find hazards (Exs. 69; 74; 185; 190; 198; 226). They argued that the duty of the competent person is to ensure that personal fall protection systems, components, and related equipment are safe, and they cannot carry out that duty without having the ability to take corrective action to keep the system working properly and the workplace safe. In addition, they said that employers, workers, fall protection equipment suppliers, and national consensus standards all operate with the expectation that a competent person will have authority to take action when needed to correct problems. The American Foundry Society, for instance, pointed out: Without any such authority, a competent person under this definition will be put in the position of being able to recognize the hazard, but likely not be able [to] do anything about it. That is not a truly competent person and does not reflect the needed level of competence to help ensure worker safety (Ex. 190). Similarly, ISEA said that OSHA’s proposed definition amounted to a subject matter expert rather than a competent person. They asserted that the rule must define a competent person as one who is on site; has authority to shut down work operations if there are imminent hazards; and take PPE, including personal fall protection PO 00000 Frm 00154 Fmt 4701 Sfmt 4700 systems, out of service if needed (Ex. 185). The American Federation of State, County and Municipal Employees (AFSCME) (Ex. 226) also supported giving the competent person authority to take prompt, corrective action. AFSCME said that many employers may seek outside assistance in assessing the risks and types of fall protection systems, but that no outside party should be an employer’s competent person: It is more likely that an internal supervisor would be given the responsibility for ensuring the employer’s fall protection systems are in place, equipment is inspected, and that employees are trained and using equipment properly. This person or persons should be competent in the meaning of the standard, and should have the authority to correct hazards when found (Ex. 226). ISEA made a similar point, saying that it was in the best interest of worker protection to have an on-site accountable decision maker because the competent person would be able to examine the personal fall protection systems, components, and related equipment and know firsthand the risks involved. Armed with that knowledge, ISEA said an on-site competent person would be less likely to take risks with workers’ lives. ISEA said that manufacturers and other knowledgeable sources who are not on-site will not have the knowledge to make service-life decisions about fall arrest equipment. Capital Safety Group (CSG) (Ex. 198) agreed, saying that on-site, accountable decision makers who are fully aware of the risks associated with fall protection equipment are less likely to put workers’ lives in jeopardy. Access Rescue (Ex. 69) and Extreme Access, Inc. (Ex. 74), expressed similar concerns. OSHA agrees with commenters that, to ensure workers have safe personal fall protection systems, components, and related equipment the competent person must have authority to take necessary corrective action when they identify hazards. In addition, adding the language to the final rule will make the definition consistent with the widely known term in OSHA’s construction standard and national consensus standards, which should increase employer compliance. OSHA also agrees with commenters that, to carry out their role, competent persons should be on-site. With appropriate training and experience, OSHA believes that a worker at the worksite can function as the competent person. Connector. The final rule, like the proposal, defines ‘‘connector’’ as a E:\FR\FM\18NOR7.SGM 18NOR7 srobinson on DSK5SPTVN1PROD with RULES6 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations device used to couple or connect together parts of a personal fall protection system. Examples of connectors include snaphooks, carabiners, buckles, and D-rings. The definition in the final rule is derived from OSHA’s Powered Platforms, construction, and shipyard employment fall protection standards, as well as Z359.0–2012 (Section 2.36) and A10.32–2012 (Section 2.18). The definition of ‘‘connector’’ in those standards includes information explaining that connectors may be independent components of a personal fall protection system or integral parts sewn into the system. Since the final rule permits employers to use connectors that are either independent or integral components of a personal fall protection system, OSHA does not believe it is necessary to include the explanatory material in the final definition of ‘‘connector.’’ OSHA did not receive any comments and adopts the definition as proposed. D-ring, as used in the final rule, is a connector used in: • Harnesses, as an integral attachment element or fall arrest attachment; • Lanyards, energy absorbers, lifelines, or anchorage connectors as an integral connector; or • A positioning or travel restraint system as an attachment element. ‘‘Integral’’ means the D-ring cannot be removed (e.g., sewn into the harness) from the body harness without using a special tool. The final rule is consistent with A10.32–2012, which defines ‘‘integral’’ to mean ‘‘[n]ot removable from the component, subsystem or system without destroying or mutilating any element or without use of a special tool’’ (Section 2.30). Although OSHA’s existing fall protection standards do not define ‘‘Dring,’’ the final rule is consistent with Z359.0–2012 (Section 2.41). The A10.32–2012 standard does not explicitly define ‘‘D-ring,’’ but the definition of ‘‘connector’’ includes Dring as an example of an integral component of a body harness. The definition also says a D-ring is a connector sewn into a body harness or body belt (Section 2.18). OSHA did not receive any comments on the proposed definition and has adopts the definition with minor editorial revisions. Deceleration device, like in the proposed rule, is defined as any mechanism that serves to dissipate energy during a fall. The final rule is similar to the definition in OSHA’s Powered Platforms, construction, and shipyard employment fall protection standards (§§ 1910.66, appendix C, Section I(b); 1915.151(b); 1926.500(b)), VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 and almost identical to the definition in A10.32–2012 (Section 2.19). The definition in those standards also provides examples of deceleration devices that employers may use to dissipate energy during a fall, including rope grabs, rip-stitch lanyards, specially woven lanyards, tearing or deforming lanyards, and automatic self-retracting lifelines or lanyards. Although the Z359.0 standard does not define ‘‘deceleration device,’’ it includes definitions for ‘‘energy (shock) absorber,’’ ‘‘fall arrester,’’ and ‘‘selfretracting lanyard’’ (Sections 2.46, 2.60, 2.159). In the Powered Platforms and construction fall protection rulemakings, commenters recommended replacing ‘‘deceleration device’’ with those terms. OSHA also received similar recommendations in this rulemaking (Exs. 121; 185; 198). For instance, ISEA (Ex.185) and CSG (Ex. 198) recommended defining ‘‘fall arrester’’ and ‘‘energy absorber’’ because they said ‘‘deceleration device’’ is not a commonly used term. Clear Channel Outdoor, Inc. (Ex. 121), also supported replacing ‘‘deceleration device’’ with the terms in Z359.0 ‘‘to increase consistency.’’ By contrast, Ameren said ‘‘deceleration device’’ was ‘‘standard verbiage’’ in OSHA fall protection standards, and removing the term was not necessary ‘‘[a]s long as there is no confusion with the terms’’ (Ex.189). OSHA agrees with Ameren that using the term ‘‘deceleration device’’ makes the final rule consistent with OSHA’s other fall protection standards and would eliminate, rather than generate, confusion. In the preamble to the final construction fall protection standard, OSHA explained why the Agency was not adding definitions for ‘‘fall arrester’’ and ‘‘energy absorber,’’ stating: It was suggested that [deceleration device] be eliminated and replaced with three terms, ‘‘fall arrester,’’ ‘‘energy absorber,’’ and ‘‘selfretracting lifeline/lanyard’’ because the examples listed by OSHA in its proposed definition of deceleration device serve varying combinations of the function of these three suggested components. In particular, it was pointed out that a rope grab may or may not serve to dissipate a substantial amount of energy in and of itself. The distinction that the commenter was making was that some components of the system were ‘‘fall arresters’’ (purpose to stop a fall), others were ‘‘energy absorbers’’ (purpose to brake a fall more comfortably), and others were ‘‘selfretracting lifeline/lanyards’’ (purpose to take slack out of the lifeline or lanyard to minimize free fall). OSHA notes, however, that it is difficult to clearly separate all components into these three suggested categories since fall arrest (stopping) and energy absorption (braking) are closely related. In addition, many self-retracting lifeline/lanyards serve all three functions PO 00000 Frm 00155 Fmt 4701 Sfmt 4700 82647 very well (a condition which the commenter labels as a ‘‘subsystem’’ or ‘‘hybrid component’’). OSHA believes that the only practical way to accomplish what is suggested would be to have test methods and criteria for each of the three component functions. However, at this time, there are no national consensus standards or other accepted criteria for any of the three which OSHA could propose to adopt. In addition, OSHA’s approach in the final standard is to address personal fall arrest equipment on a system basis. Therefore, OSHA does not have separate requirements for ‘‘fall arresters,’’ ‘‘energy absorbers,’’ and ‘‘self-retracting lifeline/lanyards’’ because it is the performance of the complete system, as assembled, which is regulated by the OSHA standard. OSHA’s final standard does not preclude the voluntary standards writing bodies from developing design standards for all of the various components and is supportive of this undertaking (59 FR 40672 (8/9/1994) (citing 54 FR 31408, 31446 (7/28/ 1989))). OSHA believes the preamble discussion in the earlier rulemakings holds true today and supports only including the definition of ‘‘deceleration device’’ in the final rule. Accordingly, the final rule adopts the definition of ‘‘deceleration device’’ specified in the proposal. Deceleration distance. The final rule, like the proposal, defines ‘‘deceleration distance’’ as the vertical distance a falling worker travels before stopping, that is, the distance from the point at which the deceleration device begins to operate to the stopping point, excluding lifeline elongation and free fall distance. The final rule also states that ‘‘deceleration distance’’ is the distance between the location of a worker’s body harness attachment point at the moment of activation of the deceleration device during a fall (i.e., at the onset of fall arrest forces), and the location of that attachment point after the worker comes to a full stop. The definition in the final rule is almost identical to the definition in OSHA’s Powered Platforms, construction, and shipyard employment fall protection standards (§§ 1910.66, appendix C, Section I(b); 1915.151(b); 1926.500(b)), but does not reference body belts because the final rule prohibits the use of body belts in personal fall arrest systems. The final rule also is consistent with A10.32–2012 (Section 2.20) and with the definition and explanatory note in Z359.0–2012 (Section 2.40). OSHA did not receive any comments on the proposed definition of ‘‘deceleration device’’ and adopts the proposed definition. Equivalent. The final rule defines ‘‘equivalent’’ as alternative designs, equipment, materials, or methods that the employer can demonstrate will E:\FR\FM\18NOR7.SGM 18NOR7 srobinson on DSK5SPTVN1PROD with RULES6 82648 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations provide an equal or greater degree of safety for workers compared to the designs, equipment, materials, or methods the final rule specifies. The definition in the final rule is essentially the same as the definition in OSHA’s Powered Platforms, shipyard employment, and construction fall protection standards (§§ 1910.66(d) and appendix C, Section I(b); 1915.151(b); 1926.500(b)). A crucial element of the definition is that the employer has the burden to demonstrate that the alternative means are at least as protective as the designs, materials, or methods the standard requires. Verallia (Ex. 171) commented that the proposed definition was ‘‘too subjective and vague to allow for consistent application and/or enforcement.’’ Verallia also said the proposal outlined the skill set necessary to be a ‘‘qualified’’ person, and that it should be sufficient if a qualified person selects the alternative designs, equipment, materials, or methods. OSHA disagrees with Verallia’s characterization of the proposed definition. Since 1974, OSHA used the same definition of ‘‘equivalent’’ in various standards (e.g., §§ 1910.21(g)(6); 1926.450(b)). Over this period, the Agency experienced no problems achieving consistent application of the definition, and employers did not report that the term is too vague. To the contrary, OSHA believes that employers support the definition of ‘‘equivalent’’ because it gives them flexibility in complying with the final rule, provided that they can show that their selected methods, materials, or designs provide equal or greater level of safety for workers. Accordingly, the final rule adopts the proposed definition with only minor changes for clarity. Free fall, like in the proposed rule, is defined as the act of falling before the personal fall arrest system begins to apply force to arrest the fall. The final definition is almost the same as the definition in OSHA’s Powered Platforms, construction, and shipyard employment fall protection standards (§§ 1910.66, appendix C, Section I(b); 1915.151(b); 1926.500(b)). It also is identical to the definition in Z359.0– 2012 (Section 2.73), and is consistent with the definition in A10.32–2012 (Section 2.26). OSHA did not receive any comments on the proposed definition and finalizes it as proposed. Free fall distance means the vertical displacement of the fall arrest attachment point on the worker’s body harness between the onset of the fall and just before the system begins to apply force to arrest the fall. The distance excludes deceleration distance, VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 lifeline and lanyard elongation, but includes any deceleration device slide distance or self-retracting lifeline/ lanyard extension before the devices operate and fall arrest forces occur. The definition in the final rule is essentially the same as the definition in OSHA’s Powered Platforms, construction, and shipyard employment fall protection standards (§§ 1910.66 appendix C, Section I(b); 1915.151(b); 1926.500(b)). In addition, the final rule is consistent with the definition in Z359.0–2012 (Section 2.74) and A10.32– 2012 (Section 2.27). OSHA did not receive any comments on the proposed definition. Lanyard, like in the proposed rule, is defined as a flexible line of rope, wire rope, or strap that generally has a connector at each end to connect a body harness or body belt to a deceleration device, lifeline, or anchorage. The definition in the final rule is almost identical to the Powered Platforms standard (§ 1910.66(b) and appendix C, Section I(b)), and consistent with the definition in OSHA’s construction and shipyard employment fall protection standards (§§ 1915.151(b) and 1926.500(b)). The definition in the final rule also is consistent with Z359.0–2012 (Section 2.94) and A10.32–2012 (Section 2.31), although the definition in A10.32 does not include body belts. OSHA did not receive any comments on the proposed definition, and adopts the definition as proposed. Lifeline. The final rule, like the proposal, defines ‘‘lifeline’’ as a component of a personal fall protection system that connects other components of the system to the anchorage. A lifeline consists of a flexible line that either connects to an anchorage at one end to hang vertically (a vertical lifeline), or connects to anchorages at both ends to stretch horizontally (a horizontal lifeline). The final rule is consistent with the definition of lifeline in Z359.0–2012 (Section 2.96) and A10.32–2012 (Section 2.33), however, it differs slightly from OSHA’s Powered Platforms, construction, and shipyard employment fall protection standards (§§ 1910.66(b) and appendix C, Section I(b); 1915.151(b); 1926.500(b)). OSHA’s existing standards only apply to personal fall arrest systems, and define ‘‘lifeline’’ as a component of such a system. The final definition specifies that a lifeline is a component of a personal fall protection system, which includes fall arrest, positioning, and travel restraint systems. The final definition also includes some minor editorial revisions. OSHA did not receive any comments on the proposed PO 00000 Frm 00156 Fmt 4701 Sfmt 4700 definition and adopts the definition as discussed. Personal fall arrest system, like the proposed rule, is defined as a system used to arrest a worker’s fall from a walking-working surface. As the final rule specifies, a personal fall arrest system consists of a body harness, anchorage, and connector. The means of connecting the body harness and anchorage may be a lanyard, deceleration device, lifeline, or suitable combination of these means. In the final rule, OSHA fully details what the components of personal fall arrest systems include, specifically, the various means of connecting body harnesses and anchorages (i.e., lanyards, deceleration devices, lifelines, or a suitable combination of these means). OSHA believes that fully clarifying the components will help employers and workers better understand the personal fall arrest system requirements in the final rule. The definition in the final rule is consistent with OSHA’s Powered Platforms, construction, and shipyard employment fall protection standards (§§ 1910.66(b) and appendix C, Section I(b); 1915.151(b); 1926.500(b)). Those OSHA standards, however, specify that a fall arrest system may consist of either a body harness or a body belt. Since the time OSHA promulgated those standards, the Agency phased out the use of body belts in personal fall arrest systems due to safety concerns. Effective January 1, 1998, OSHA banned the use of body belts as part of personal fall arrest systems in the construction and shipyard employment standards (§§ 1926.502(d); 1915.159), and this final rule also prohibits their use in personal fall arrest systems. The final rule is consistent with Z359.0–2012 (Section 2.115) and A10.32–2012 (Section 2.38). The consensus standards, like the final rule and OSHA’s existing standards, require the use of body harnesses in personal fall arrest systems, and prohibit body belts. Personal fall protection system, as defined in the final rule, means a system (including all components) that employers use to provide protection for employees from falling or to safely arrest a fall if one occurs. The final definition identifies examples of personal fall protection systems, including personal fall arrest systems, positioning systems, and travel restraint systems. Neither existing OSHA fall protection standards nor national consensus standards define personal fall protection system. Some commenters (Exs. 155; 185; 198) said that OSHA should not use E:\FR\FM\18NOR7.SGM 18NOR7 srobinson on DSK5SPTVN1PROD with RULES6 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations ‘‘personal fall protection system’’ because employers could interpret the term to include passive devices such as guardrails. They suggested using only the term ‘‘personal fall arrest system.’’ In addition, Ellis Fall Safety Solutions (Ellis) (Ex. 155) recommended that the term ‘‘personal fall protection system’’ only include systems that use body harnesses; in other words, limited to personal fall arrest systems. OSHA does not believe that employers will mistake the term ‘‘personal fall protection system’’ to include passive fall protection devices such as guardrails and safety nets. The Z359.0–2012 standard includes two types of fall protection systems: Active and passive. Z359.0 defines ‘‘active fall protection system’’ as a fall protection system that requires workers ‘‘to wear or use fall protection equipment’’ (Section 2.2), and lists fall restraint, fall arrest, travel restriction, and administrative controls as examples. The Z359.0 standard, however, defines ‘‘passive fall protection system’’ as one ‘‘that does not require the wearing or use of fall protection equipment,’’ such as safety nets and guardrail systems (Section 2.113). Like the distinction that the Z359.0 standard draws between active and passive fall protection systems, OSHA believes that using the term ‘‘personal fall protection system’’ establishes the same type of distinction. That is, a personal fall protection system is one that employers must ensure that workers actively use to protect them, while a passive fall protection system, such as a guardrail, is one that does not require any action by workers to be safe, so long as employers maintain the system properly. OSHA believes this distinction is helpful, and that the regulated community recognizes and understands the distinction. Therefore, the term is carried forward in the final rule. OSHA revised the final definition to expressly clarify the Agency’s intent in the proposed rule that personal fall protection systems include all components of those systems. Positioning system (work-positioning system). The final rule, like the proposal, defines ‘‘positioning system’’ as 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 in the final rule is essentially the same as the definition in OSHA’s construction and shipyard VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 employment fall protection standards (§§ 1915.151(b), 1926.500(b)). The final rule also is similar to A10.32–2012 (Section 2.39, 2.40) and Z359.0–2012 (Section 2.120). Weatherguard Service, Inc. (Ex. 168) supported the proposed definition. A note to the definition in Z359.0 explains that ‘‘a positioning system used alone does not constitute fall protection,’’ and that a separate system that provides backup protection from a fall is necessary (Section E2.120). Ellis (Ex. 155), who also commented on OSHA’s positioning system requirements, supported adding such a requirement to the final rule. OSHA did not incorporate this recommendation (see discussion in final paragraph (e) (positioning systems)). OSHA adopts the proposed definition with minor editorial changes. Qualified, like in the proposed rule, describes a person who, by possession of a recognized degree, certificate, or professional standing, or who by extensive knowledge, training,76 and experience has successfully demonstrated the ability to solve or resolve problems relating to the subject matter, work, or project. This definition is identical to the one in final § 1910.21(b). The final definition is almost identical to the definition applicable to OSHA’s construction standards (§ 1926.32(m)), and similar to the definition in the shipyard employment fall protection standard (§ 1915.151(b)). In addition, the definition in the final rule is consistent with the definition used in A10.32–2012 (Section 2.41). The final rule, however, differs from the definition in the Powered Platforms standard (§ 1910.66, appendix C, Section I(b)) and Z359.0–2012. Those standards require that qualified persons have a degree, certification, or professional standing, and 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). Several commenters opposed the proposed definition of ‘‘qualified’’ and supported the definition of qualified in § 1910.66 and Z359.0 (Exs. 155; 193; 367). They also recommended revising the definition to specifically require that only engineers could serve as qualified persons. For example, Ellis said: In America, anchorages are mostly guesswork and this does not do justice to 76 ‘‘Training’’ may include informal, or on-the-job, training. PO 00000 Frm 00157 Fmt 4701 Sfmt 4700 82649 ‘‘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). Penta Engineering Group added: OSHA proposes to require that horizontal lifelines be designed, installed and used under the supervision of a qualified person and that they be part of a complete fall arrest system that maintains a factor of safety of two. To allow a person without an engineering degree and professional registration would not only be dangerous but would be contradictory to every current requirement for other building systems as required by the building codes. Further, in this specific instance, the design of a horizontal lifeline presents specific engineering challenges that should not be performed by anyone without the professional standing and experience to do so (Ex. 193). Thomas Kramer of LJB, Inc., agreed, stating: We take exception with the change from ‘‘AND’’ to ‘‘OR.’’ A person with a structural engineering degree does not necessarily know the full requirements (clearances, proper PPE selection, use and rescue procedures, etc.) of a personal fall arrest system. That knowledge can be obtained only through special training or experience in the subject matter. Vice versa, someone with knowledge of the system requirements may not know how to properly design an anchorage support and can only gain this knowledge through a professional degree. As stated in our previous comments, many building codes only allow a professional engineer to design and stamp a building design or changes to the loading of a structure. The explanation to make 1910 consistent with the existing construction and shipyard employment standard is not a good enough reason in our opinion. OSHA states that personal fall protection systems will ‘‘in some cases, [may] involve their design and use.’’ By using the word ‘‘OR,’’ the proposed regulation eliminates the need for an engineer’s involvement. The ANSI/ASSE Z359.0–2007 standard uses ‘‘AND’’. These consensus standards are developed with a considerable level of thought and consideration and were recently vetted by the industry, so we suggest OSHA reconsider this change (Ex. 367). OSHA did not adopt the commenters’ recommendations for several reasons. First, as discussed in the proposed rule, OSHA based the definition of ‘‘qualified’’ on the definitions in its construction and shipyard employment fall protection standards (§§ 1915.151(b); 1926.500(b)). For years, those definitions have been effective because they specify that employers must ensure the design, installation, and E:\FR\FM\18NOR7.SGM 18NOR7 srobinson on DSK5SPTVN1PROD with RULES6 82650 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations use of components of personal fall protection systems (such as lifelines) protect workers from falls. Adopting the same definition as OSHA’s other fall protection standards and final § 1910.21(b) also ensures consistency, which OSHA believes will increase both employer understanding and compliance with the requirement. Second, the Agency believes the performance-based definition in the final rule gives employers flexibility in selecting a qualified person who will be effective in performing the required functions. The performance-based definition also allows employers to select the qualified person who will be the best fit for the particular job and work conditions. Employers are free to use qualified persons who have professional credentials and extensive knowledge, training, and experience, and OSHA believes many employers already do so. Finally, the workers the employer designates or selects as qualified persons, the most important aspect of their qualifications is that they must have ‘‘demonstrated ability’’ to solve or resolve problems relating to the subject matter, work, and project. Having both professional credentials and knowledge, training, and experience will not protect workers effectively if the person has not demonstrated capability to perform the required functions and solve or resolve the problems in question. When the person the employer designates as a qualified person has demonstrated the ability to solve or resolve problems, which may include performing various complex calculations to ensure systems and components meet required criteria, the qualifications of that person are adequate. OSHA also notes that an employer may need to select different qualified persons for different projects, subject matter, or work to ensure the person’s professional credentials or training, experience, and knowledge are sufficient to solve or resolve the problems associated with the subject matter, work, or project. For example, the employer may determine that an engineer is needed for a particular project, and the final rule provides the employer with that flexibility. Accordingly, OSHA adopts the definition of qualified as proposed. OSHA disagrees with Ellis’ assertion that architects and engineers are not designing anchorages into drawings because, according to Ellis, § 1910.140 does not require qualified persons to be engineers. OSHA believes that building owners and others work with engineers and architects in the planning stage to design anchorage points into buildings VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 and structures so that the anchorages will effectively support personal fall protection systems used to perform work on the building. OSHA also believes that the number of building owners consulting engineers about the design of anchorages will increase under the final rule. Section 1910.27 of the final rule requires that, when employers use rope descent systems (RDS), building owners must provide information to employers and contractors ensuring that a qualified person certify building anchorages as being capable of supporting at least 5,000 pounds (29 CFR 1910.27(b)(1)). OSHA believes that building owners will likely consult and work with engineers to ensure that all building anchorages, including anchorages that support RDS and personal fall protection systems, meet the requirements in § 1910.27. Thus, OSHA does not believe it is necessary to limit the definition of ‘‘qualified’’ person to engineers to ensure that building owners include building anchors in building design plans. Rope grab, like the proposed rule, is defined as a deceleration device that travels on a lifeline and automatically, using friction, engages the lifeline and locks to arrest a worker’s fall. A rope grab usually employs the principle of inertial locking, cam or lever locking, or both. The final rule is essentially the same as the definition in OSHA’s Powered Platforms, construction, and shipyard employment fall protection standards (§§ 1910.66, appendix C, Section I(b); 1915.151(b); 1926.500(b)). The A10.32 and Z359.0–2012 standards do not define ‘‘rope grab,’’ but the definition of ‘‘fall arrester’’ in Z359.0 (Section 2.60) is similar to the definition in this final rule. In addition, the explanatory note to the ‘‘fall arrester’’ definition identifies a ‘‘rope grab’’ as an example of a fall arrester. The A10.32–2012 standard requires rope grabs to automatically lock (Section 5.4.3). OSHA did not receive any comments on the proposed definition of ‘‘rope grab,’’ and the final rule adopts it as proposed. Safety factor. The final rule adds a definition for safety factor, also called a factor of safety. OSHA defines safety factor as the ratio of the design load and ultimate strength of the material. Generally, the term refers to the structural capacity of a member, material, equipment, or system beyond actual or reasonably anticipated loads; that is, how much stronger the member, material, equipment, or system is than it usually needs to be to support the intended load without breaking or failing. A safety factor is an additional PO 00000 Frm 00158 Fmt 4701 Sfmt 4700 or extra margin of safety that provides assurance the system or equipment is able to support the intended load (e.g., a safety factor of two). The new definition is the same as the one proposed in subpart D and is consistent with the one in § 1926.32(n). OSHA believes that adding this term will increase employer understanding and compliance with the requirements in this section. Self-retracting lifeline/lanyard (SRL) is also a type of deceleration device. The final rule, like the proposal, defines an SRL as containing a drum-wound line that a worker can slowly extract from, or retract onto, a drum under slight tension during normal movement. At the onset of a fall, the device automatically locks the drum and arrests the fall. The definition in the final rule is consistent with OSHA’s Powered Platforms and construction fall protection standards (§§ 1910.66, appendix C, Section I(b); 1926.500(b)) and with Z359.0–2012 (Section 2.159) and A10.32–2012 (Section 2.46). There were no comments on the proposed definition, and the final rule adopts it as proposed. Snaphook. The final rule, like the proposal, defines ‘‘snaphook’’ as a connector comprised of a hook-shaped body with a normally closed gate, or a similar arrangement, that the user may open manually to permit the hook to receive an object. When the user releases a snaphook, it automatically closes to retain the object. Opening a snaphook requires two separate actions, meaning the user must squeeze the lever on the back before engaging the front gate. The final definition, like the proposal, identifies two general types of snaphooks—an automatic-locking type (also called self-locking or double locking), which the final rule permits employers to use, and a non-locking type, which the final rule prohibits. An automatic-locking type snaphook has a self-closing and self-locking gate that remains closed and locked until intentionally unlocked and opened for connection or disconnection. By contrast, a non-locking type has a selfclosing gate that remains closed, but not locked until the user intentionally opens it for connection or disconnection (see discussion of § 1910.140(c)(9)). The definition in the final rule is the same as the definition in OSHA’s Powered Platforms and construction fall protection standards (§§ 1910.66, appendix C, Section I(b); 1926.500(b)). It also is consistent with Z359.0–2012 (Section 2.168) and A10.32–2012 (Sections 2.50, 2.50.1, 2.50.2). OSHA E:\FR\FM\18NOR7.SGM 18NOR7 srobinson on DSK5SPTVN1PROD with RULES6 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations received two comments on the snaphook definition, from CSG (Ex. 198) and ISEA (Ex. 185), both of which supported the proposed definition. OSHA adopts the definition as proposed. Travel restraint (tether) line is a component of a travel restraint system. Specifically, the final rule, like the proposal, defines it as a rope or wire rope used to transfer forces from a body support to an anchorage or anchorage connector in a travel restraint system. The purpose of a travel restraint (tether) line is to secure workers in such a way as to prevent them from reaching an unprotected edge and falling off the elevated surface on which they are working. The definition in the final rule is the same as the definition in OSHA’s shipyard employment fall protection standard (§ 1915.151(b)). The definition in § 1915.151(b) notes that manufacturers do not necessarily design travel restraint lines to withstand forces resulting from a fall. OSHA did not receive any comments on the proposed definition, and the final rule adopts the definition as proposed. Travel restraint system is a type of personal fall protection system that consists of a combination of an anchorage, 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 walkingworking surface. The final rule revises the proposed definition in two ways. First, the final rule defines ‘‘travel restraint system’’ to specify that it is a system a worker uses to eliminate the possibility of falling from the unprotected edge of an elevated walking-working surface. The proposed definition said the purpose of travel restraint systems was to ‘‘limit travel to prevent exposure to a fall hazard.’’ OSHA believes the final definition more clearly explains the ultimate purpose of travel restraint systems than the proposed definition. Second, the final definition deletes the second sentence of the proposed definition, which stated that a travel restraint system ‘‘is used such that it does not support any portion of the worker’s weight; otherwise the system would be a positioning system or personal fall arrest system.’’ OSHA believes the revised language in the final definition is sufficient to convey this requirement. In addition, OSHA addresses this issue in the discussion of § 1910.140(c)(14) below. The definition in the final rule is consistent with the definition in Z359.0–2012 (Section 2.204) and VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 A10.32–2012 (Sections 2.53). The definition in A10.32 stresses that the purpose of a travel restraint system is to limit travel in such a manner that the user is not exposed to a fall hazard. OSHA did not receive comments on the proposed definition and finalizes the definition as discussed. Window cleaner’s belt, as defined in the final rule, is a component of a window cleaner’s positioning system. It is a positioning belt that consists of a waist belt, an integral terminal runner or strap, and belt terminals. The final rule revises the proposed definition to explicitly clarify that a window cleaner’s belt is a component of a window cleaner’s positioning system, and thus is designed to support the window cleaner on an elevated vertical surface. OSHA notes that a window cleaner’s belt differs from a window cleaner’s tool belt, which holds the window cleaner’s tools and materials used for performing the job. Employers use the tool belt mainly for convenience of the window cleaner and not as safety equipment. The only commenter on the proposed definition, Weatherguard (Ex. 168), supported the proposed definition. Accordingly, the final rule adopts the definition with the revision discussed above. Window cleaner’s belt anchor (window anchor), as defined in the final rule, is a specifically designed fallpreventing attachment point permanently affixed to a window frame or a part of a building immediately adjacent to the window frame, for direct attachment of the terminal portion of a window cleaner’s belt. Workers attach the terminals of the window cleaner’s belt to the window anchors to prevent falling while cleaning windows. OSHA based the final definition on the one in I–14.1–2001 (Section 2). OSHA’s existing fall protection standards do not specifically address window cleaning operations, and do not define terms related to those operations. Weatherguard (Ex. 168), the only commenter, supported including the definition in the final rule. The final rule adopts the definition as proposed. Window cleaner’s positioning system, as defined in the final rule, is a system that consists of a window cleaner’s belt secured to window anchors. The definition is similar to the general definition of positioning system in the final rule. Weatherguard (Ex. 168), the only commenter, supported the proposed definition and the definition is adopted as proposed. Paragraph (c)—General Requirements Paragraph (c) of the final rule specifies the general requirements PO 00000 Frm 00159 Fmt 4701 Sfmt 4700 82651 employers must ensure that each personal fall protection system meets. The general requirements in paragraph (c) are criteria for the common components of personal fall protection systems, such as connectors, anchorages, lanyards and body harnesses. Paragraphs (d) and (e) contain additional requirements for personal fall arrest systems and positioning systems, respectively. The provisions in final paragraph (c) are drawn from or based on requirements in OSHA’s personal fall protection standards, including Powered Platforms (§ 1910.66, appendix C), construction (§ 1926.502), and shipyard employment (§ 1915.160). They also are drawn from national consensus standards addressing fall protection, including Z359.1–2007, Z359.3–2007, A10.32–2012, and I–14.1– 2001. Paragraph (c)(1) of the final rule requires that employers ensure connectors used in personal fall protection systems are made of dropforged, pressed or formed steel, or equivalent material. Final paragraph (c)(2) requires connectors to have corrosion-resistant finishes, as well as smooth surfaces and edges to prevent damage to interfacing parts of the personal fall protection system. The requirements in paragraphs (c)(1) and (2) will ensure that connectors retain the necessary strength characteristics for the life of the fall protection system under expected conditions of use, and that the surfaces and edges do not cause damage to the belts or lanyards attached to them. Employers must not allow workers to use personal fall protection equipment if wear and tear reaches the point where equipment performance might be compromised. For example, corroded or rough surfaces can cause wear and tear on connectors and other components of personal fall protection system, which may reduce their strength. Final paragraphs (c)(1) and (2) are consistent with OSHA’s other fall protection standards, including Powered Platforms (§ 1910.66, appendix C, section I, paragraphs (c)(1) and (c)(2)); construction (§ 1926.502(d)(1), (d)(3), and (e)(4)); and shipyard employment (§ 1915.159(a)(1) and (2)). The Z359.1– 2007 standard also contains similar requirements. There were no comments on the proposed provisions and OSHA adopts them without substantive change. When employers use vertical lifelines, paragraph (c)(3) of the final rule requires that employers ensure each worker is attached to a separate lifeline. OSHA believes that allowing more than one E:\FR\FM\18NOR7.SGM 18NOR7 srobinson on DSK5SPTVN1PROD with RULES6 82652 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations worker on the same vertical lifeline would create additional hazards. For example, if one worker falls, another attached worker might be pulled off balance and also fall. The final rule is consistent with OSHA’s other fall protection standards (§§ 1910.66, appendix C, section I, paragraphs (c)(3) and (e)(5); 1926.502(d)(10); 1915.159(b)(1)). There were no comments on the proposed provision and it is adopted with only minor editorial changes. Paragraphs (c)(4) and (5) of the final rule set minimum strength requirements for lanyards and lifelines used with personal fall protection systems. Paragraph (c)(4) requires that employers ensure lanyards and vertical lifelines have a minimum breaking strength of 5,000 pounds. Breaking strength refers to the point at which a lanyard or vertical lifeline will break because of the stress placed on it. The final rule requires the same strength requirements for vertical lifelines and lanyards as OSHA’s other fall protection standards (§§ 1910.66, appendix C, section I, paragraphs (c)(4); 1926.502(d)(9); 1915.159(b)(3)). The strength requirement also is the same as Z359.1–2007. OSHA believes the strength requirements in all of these standards provide an adequate level of safety. (OSHA notes that the final rule also requires that travel restraint (tether) lines be capable of supporting a minimum tensile load of 5,000 pounds (see discussion of paragraph (c)(14)). The lanyards and vertical lifelines requirement in paragraph (c)(4) also includes self-retracting lifelines/ lanyards (SRL) that allow free falls of more than 2 feet, as well as ripstitch, tearing and deforming lanyards. The proposed rule addressed those lifelines and lanyards in paragraph (c)(6); however, that paragraph duplicated paragraph (c)(4), and OSHA removed it from the final rule. Proposed paragraph (c)(4) also included a note, which OSHA re-designated as paragraph (c)(6) of the final rule (see discussion of § 1910.140(c)(6)). Paragraph (c)(5) of the final rule, like the proposed rule, provides an exception to the 5,000-pound strength requirement for SRL that automatically limit free fall distance to 2 feet or less. The final provision allows a lower strength requirement because the fall arrest forces are less when free falls are limited to 2 feet. These lifelines and lanyards must have components capable of sustaining a minimum tensile load of 3,000 pounds applied to the device with the lifeline or lanyard in the fully extended position. Tensile load means a force that attempts to pull apart or VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 stretch an object, while tensile strength means the ability of an object or material to resist forces that attempt to pull apart or stretch the object or material. Final paragraph (c)(5) is the same as OSHA’s other fall protection standards (§§ 1910.66, appendix C, section I, paragraphs (c)(5); 1926.502(d)(13); 1915.159(b)(4)) and Z359.1–2007 (Section 3.2.8.7) and A10.32–2012 (Section 5.3.1). OSHA received comments on the proposed strength requirements in paragraphs (c)(4) and (5). As far back as the 1990 proposal, one commenter said that the strength requirements for lanyards and vertical lifelines were too high and would be difficult to maintain (75 FR 28907). OSHA acknowledged in the proposed rule that wear and deterioration to personal fall protection systems inevitably would occur from normal use of lanyards and lifelines, and that ultraviolet radiation, water, and dirt also can reduce the strength of lanyards and lifelines. That said, OSHA believes that employers are able to purchase and maintain personal fall protection system and components that consistently meet the strength requirements in the final rule. These strength requirements have been in place for many years, and virtually all personal fall protection systems manufactured in or for use in the United States meet the requirements in paragraphs (c)(4) and (5). Since 1990, OSHA has not received any information indicating that the strength requirements should not be maintained. However, to ensure that lifelines and lanyards continue to comply with the requirements in paragraph (c)(5), paragraph (c)(18) of the final rule requires that employers inspect personal fall protection systems before each use and immediately remove worn or deteriorated systems and components from service. In addition, § 1910.132(a) requires that employers maintain personal protective equipment in reliable condition. ISEA and CSG commented on the orientation of SRL with regard to lanyard and lifeline strength requirements. ISEA said: [T]he horizontal or vertical orientation of a [self-retracting lanyard] is important because SRL used in a generally horizontal orientation rather than overhead may be subject to higher loadings and greater exposure to sharp or abrasive surfaces. Because the devices are typically anchored at waist height or below, free fall potential is greater (Ex. 185). CSG agreed, adding that the higher loading of SRL used in horizontal positions reinforced the need for PO 00000 Frm 00160 Fmt 4701 Sfmt 4700 additional training considerations for horizontally oriented SRL (Ex. 198). Both CSG and ISEA added that manufacturers generally include extra provisions for absorbing energy and protecting the lifeline from damage from building edges if the SRL will be used in a horizontal position. OSHA agrees that employers and competent persons should consider the horizontal or vertical orientation of a SRL in selecting and inspecting personal fall protection systems and training workers (§ 1910.30). OSHA notes that appendix C to § 1910.140 addresses the commenters’ points so employers will be aware of the issue. OSHA also notes that paragraph (c)(11) of the final rule sets specific requirements when using horizontal lifelines. Neither commenter suggested that OSHA change the language of paragraph (c)(4) or (5). Accordingly, OSHA believes it is not necessary to revise either paragraph in the final rule. Proposed paragraph (c)(6) also included a provision to establish strength requirements for SRL that do not limit free fall distance to not more than 2 feet, as well as for ripstitch, tearing, and deforming lanyards. OSHA proposed to require those types of lanyards and lifelines also be capable of sustaining minimum tensile loads of 5,000 pounds applied to the device when the lifeline or lanyard is in a fully extended position. The proposed provision was identical to requirements in OSHA’s Powered Platforms (§ 1910.66, appendix C, Section I, paragraph (c)(5)), shipyard employment (§ 1915.159(b)(4)), and construction (§ 1926.502(d)(13)) fall protection standards. However, Z359.1–2007 and A10.32–2012 do not have a separate provision addressing self-retracting lifelines/lanyards that do not limit free fall distances. OSHA requested comment on whether proposed paragraph (c)(6) was necessary, or whether paragraph (c)(4) of the final rule adequately addressed the issue (75 FR 28907). The Society of Professional Rope Access Technicians (SPRAT) said it would be acceptable to adopt either proposed provisions (c)(4) through (6) or the requirements in Z359.1 (Ex. 205). However, ISEA and CSG said proposed paragraph (c)(6) was not necessary, and, if OSHA retained the provision in the final rule, the Agency should remove SRL from it (Exs. 185; 198). OSHA believes that paragraph (c)(4) adequately addresses the issue of SRL that do not limit the free fall to a maximum of 2 feet plus ripstitch, tearing, and deforming lanyards; therefore, proposed paragraph (c)(6) is not necessary. Accordingly, OSHA E:\FR\FM\18NOR7.SGM 18NOR7 srobinson on DSK5SPTVN1PROD with RULES6 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations deleted proposed paragraph (c)(6) from the final rule. In final paragraph (c)(6), OSHA replaces proposed paragraph (c)(6) with the requirement that a competent or qualified person must inspect each knot in lanyards and vertical lifelines, before a worker uses the lanyard or lifeline, to ensure that they still meet the minimum strength requirements in paragraphs (c)(4) and (5). This new requirement is based on the note OSHA included in proposed paragraph (c)(4) warning employers that the use of knots ‘‘may significantly reduce the breaking strength’’ of lanyards and vertical lifelines. The debate about whether knots should be permitted in lanyards and lifelines has been ongoing for at least 20 years. Although the proposal did not ban the use of knots, the Agency considered it, noting that Z359.1–2007 prohibits them: ‘‘No knots shall be tied in lanyards, lifelines, or anchorage connectors. Sliding-hitch knots shall not be used in lieu of fall arresters’’ (Section 7.2.1). The A10.32–2012 standard also prohibits the use of knots in lifelines, lanyards or other direct-impact components and also prohibits knots used for load-bearing end terminations (Sections 4.5.4 and 5.5.1.3). As far back as the 1990 proposal, OSHA received comments supporting and opposing the use of knots. In the preamble to that proposed rule, OSHA said available information indicated that knots could be used safely in some circumstances, and that employers should be allowed the flexibility to use them as long as they verify that the strength requirements of the rule continue to be met. OSHA also noted that strength reduction can be a concern because the use of knots in lanyards and vertical lifelines can reduce breaking strength (75 FR 28907). In this proposed rule, OSHA invited comment on whether the Agency should allow or prohibit the use of knots, or require a competent person to inspect all knots (75 FR 28907). Several commenters said OSHA should prohibit knots in personal fall arrest systems, noting they generally are no longer used in modern fall arrest applications (Exs. 185; 198; 251). Other commenters, including Martin’s Window Cleaning Corp. (Martin’s) (Ex. 222) and SPRAT (Ex. 205), opposed a prohibition on the use of knots. Martin’s said, ‘‘A properly tied knot is much stronger than a swedge or splice,’’ which the proposed rule did not prohibit (Ex. 222). SPRAT said appropriately tied knots were useful at the end and throughout rope spans, and cited Cordage Institute data indicating knots commonly used in lifesafety systems had an efficiency range of VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 75–90 percent (Ex. 205). SPRAT also said their employers require that competent persons inspect all knots tied in industrial rope access systems. They added that the rule must require that workers be trained in uses, limitations, and proper inspection techniques of knots and hitches. At the hearing on the proposed rule, the American Wind Energy Association (AWEA) also opposed banning the use of knots. Grayling Vander Velde, an AWEA member, said, ‘‘Knots are widely used in industrial rope access for competent persons trained and certified in their proper use and limitations,’’ and ‘‘line failure due to installation of knots has not shown to be the cause of mainline or backup line failures’’ (Ex. 329 (1/21/2011, pgs. 19–20)). He stated that ropes used for fall arrest must meet the 5,000-pound minimum strength requirement in the final rule. Also, he noted that SPRAT’s training covers the issue of possible strength reduction in knotted lanyards. After considering the record as a whole, OSHA continues to believe that knots can be used safely in certain situations, and that the worker making the knot must be adequately trained to know the strength of the rope being used and take into consideration any strength reduction that may occur if a knot is used. As the commenters pointed out, any rope that has a knot must still meet the strength requirements in final paragraphs (c)(4) and (5) to ensure that workers have an appropriate level of safety (Ex. 205). To ensure that lanyards and vertical lifelines that have knots are safe, OSHA added a new requirement in paragraph (c)(6) of the final rule specifying that a competent or a qualified person must inspect each knot to ensure that it meets the minimum strength requirements before any worker uses the lanyard or lifeline. OSHA believes the additional requirement will preserve employer flexibility while providing an adequate level of safety. Paragraphs (c)(7) through (10) of the final rule establish criteria for D-rings, snaphooks, and carabiners, which are devices used to connect or couple together components of personal fall protection systems. OSHA added ‘‘carabiners’’ to these final paragraphs because they are a type of connector commonly used in currentlymanufactured personal fall protection systems. Paragraph (c)(7) of the final rule requires that D-rings, snaphooks, and carabiners be capable of sustaining a minimum tensile load of 5,000 pounds. OSHA believes these devices, like lanyards and vertical lifelines, must be able to sustain 5,000-pound loads to PO 00000 Frm 00161 Fmt 4701 Sfmt 4700 82653 ensure worker safety. If the connectors cannot sustain the minimum tensile load, it makes no difference what strength requirements the other components of the system can meet because the system may still fail. Final paragraph (c)(7) is the same as the strength requirements in OSHA’s other fall protection standards (§§ 1910.66, appendix C, Section I, paragraph (d)(6); 1915.159(a)(3); 1926.502(d)(3)). OSHA did not receive any comments on the proposed provision and is adopting it as discussed. Paragraph (c)(8) of the final rule requires that D-rings, snaphooks, and carabiners be proof tested to a minimum tensile load of 3,600 pounds without cracking, breaking, or incurring permanent deformation. OSHA also added a new requirement to final paragraph (c)(8) specifying that the gate strength of snaphooks and carabiners also must be proof tested to 3,600 pounds in all directions. Since proof testing has been the industry standard since 2007 (Z359.1–2007, Section 3.2.1.7), OSHA believes that connectors of this type already in use meet the requirements of paragraph (c)(8) and no grandfathering is necessary. The 3,600-pound strength requirement ensures that D-rings, snaphooks, and carabiners meet a safety factor of at least two when used with body harnesses. This strength requirement will, in turn, limit maximum fall arrest forces to 1,800 pounds. Final paragraph (c)(8) is similar to requirements in OSHA’s Powered Platform, construction, and shipyard employment fall protection standards (§§ 1910.66, appendix C, Section 1, paragraph (c)(7); 1915.159(a)(4); 1926.502(d)(4)), but those standards do not require proof testing gate strength. The Z359.12–2009 standard is the same as proposed paragraph (c)(8). A number of commenters supported the proposed requirement (Exs. 155; 185; 198). Several commenters also recommended that OSHA include two additions to the proposed requirement: (1) Proof testing the gate strength of carabiners and snaphooks; and (2) proof testing the gate strength in all directions (Exs. 155; 185; 198). ISEA and CSG said that past interpretations of snaphook strength requirements led to confusion, and that including a gate strength requirement would help to clarify this issue (Exs. 185; 198). Ellis said adding a requirement that the gate strength of snaphooks and carabiners also be proof tested to 3,600 pounds would make paragraph (c)(8) consistent with the Z359.12–2009 standard, and be more protective than E:\FR\FM\18NOR7.SGM 18NOR7 srobinson on DSK5SPTVN1PROD with RULES6 82654 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations the A10.32–2004 standard, which prescribes a lower gate strength (Ex. 155). Ellis noted that including the recommended additions also would help employers ‘‘avoid incidents from bent hook gates to loose gate fly-by to jamming open scenarios that have plagued the industry for decades when the strength is 220 lbs/350 lbs as in the A10.32–2004’’ (Ex. 155). OSHA agrees that the addition will provide greater protection for workers. Ellis also recommended that OSHA require proof testing snaphook and carabiner gate strength ‘‘in all directions’’ (Ex. 155). The purpose of proof testing gate strength in all directions is to ensure that no matter in which direction the pressure is applied, the connector gate will not fail. Such proof testing will provide greater protection for workers, therefore, OSHA added the requirement to proof test the gate strength of snaphooks and carabiners in all directions. Since this testing has been industry practice for several years (see Z359.1–2007, Section 3.2.1.7), OSHA does not believe that employers will have difficulty complying with the new requirement in paragraph (c)(8). Paragraph (c)(9) of the final rule requires employers to use automatic locking snaphooks and carabiners in personal fall protection systems. Automatic locking snaphooks and carabiners require at least two separate, consecutive actions to open, which reduce the danger of ‘‘rollout’’ (i.e., inadvertent opening and disconnecting of components). Non-locking snaphooks are prohibited in a personal fall protection system. Final paragraph (c)(9) is consistent with OSHA’s shipyard employment and construction fall protection standards (§§ 1915.159(a)(5); 1926.502(d)(5)). In addition, Z359.12–2009 (Section 3.1.1.3) and A10.32–2012 (Sections 2.12 and 2.50.1) both require the use of locking snaphooks and carabiners for personal fall protection systems. In the proposed rule, OSHA explained that as far back as the 1990 proposed rule, commenters expressed widespread support for prohibiting non-locking snaphooks (75 FR 28908). In OSHA’s rulemaking on fall protection in the construction industry, several commenters said the rule should mandate the use of locking snaphooks, citing the rollout problems experienced with non-locking (single-action) snaphooks (59 FR 40672, 40705 (8/9/ 1994)). Those commenters also provided information indicating that locking snaphooks are superior to non-locking snaphooks in minimizing rollout. Based on that and other information in that VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 rulemaking record, OSHA determined that it was necessary to require the use of locking snaphooks in personal fall protection systems used in the construction industry, finding that ‘‘in general, locking snaphooks provide a higher level of protection to workers than the single-action (non-locking) type of snaphooks’’ (59 FR 40705). Likewise, OSHA has determined that locking snaphooks and carabiners are necessary to protect employees in general industry. In the proposed rule, OSHA asked for comment on whether the requirement should be phased in, but received no comment on the issue. OSHA does not believe it is necessary to provide a phase-in period, because the construction rule has been in place since 1998. Accordingly, OSHA believes that manufacturers currently are making personal fall protection systems available with automatic locking snaphooks and carabiners, and most employers already are using snaphooks and carabiners that comply with the final rule. Paragraph (c)(10) of the final rule prohibits employers from using snaphooks or carabiners for certain connections unless they are designed for that connection. Accordingly, the final rule specifies that employers may connect snaphooks or carabiners to the following objects only if the snaphooks and carabiners are designed to be connected: • Directly to webbing, rope, or wire rope; • To each other; • To a D-ring to which another snaphook, carabiner, or connector is attached; • To a horizontal lifeline; or • To any object that is incompatibly shaped or dimensioned in relation to the snaphook or carabiner such that unintentional disengagement could occur when the connected object depresses the snaphook or carabiner gate and allows the components to separate. Final paragraph (c)(10) is the same as OSHA’s construction and shipyard employment fall protection standards (§§ 1915.159 (a)(6); 1926.502(d)(6)). The Powered Platforms standard addresses the connection compatibility issue a little differently than this final rule, requiring that snaphooks ‘‘be sized to be compatible with the member to which they are connected so as to prevent unintentional disengagement’’ of the snaphook (§ 1910.66, appendix C, Section I, paragraph (d)(8)). Similarly, the Z359.1–2007 standard requires: ‘‘Snaphooks and carabiners shall be compatibly matched to their associated connectors to reduce the possibility of PO 00000 Frm 00162 Fmt 4701 Sfmt 4700 rollout . . . Snaphooks and carabiners shall not be connected to each other’’ (Section 7.2.2.). Explanatory notes accompanying this provision state that multiple connections (e.g., two snaphooks, snaphook and webbing) into a single ring are not recommended (Section E7.2.2). OSHA believes that the final rule will help to reduce the potential of rollout. Certain connections, such as ones that are incompatibly sized or dimensioned, increase the likelihood of rollout, and OSHA believes the provision is needed to provide adequate assurance of worker safety. Accordingly, OSHA adopts the proposed provision, with the addition of ‘‘carabiners,’’ a commonly used connector. In paragraph (c)(11) of the final rule, like the proposal, OSHA establishes two requirements for horizontal lifelines. The provision specifies that employers must ensure horizontal lifelines are: (1) Designed, installed, and used under the supervision of a qualified person (paragraph (c)(11)(i)); and (2) are part of a complete personal fall arrest system that maintains a safety factor of at least two (paragraph (c)(11)(ii)). Paragraph (c)(11) is the same as OSHA’s Powered Platforms (§ 1910.66, appendix C, Section I(c)(9)) and construction fall protection standards (§ 1926.502(d)(8)). In addition, A10.32– 2012 contains similar requirements (Section 4.4). Although Z359.1–2007 does not address horizontal lifelines specifically, it provides: ‘‘A PFAS [personal fall arrest system] which incorporates a horizontal lifeline (outside the scope of this standard) shall be evaluated in accordance with acceptable engineering practice to determine that such system will perform as intended’’ (Section 3.1.4). OSHA believes the requirements in paragraph (c)(11) are necessary because horizontal lifelines present unique safety issues. For example, horizontal lifelines may be subject to greater impact loads than the loads imposed by other attached components. Horizontal lifelines also result in potentially greater fall distances than some other fall protection devices. Even a few additional feet of free fall can increase fall arrest forces significantly, possibly to the point of exceeding the strength of the system. In addition, forces applied in a perpendicular direction to a horizontal lifeline create much larger forces at the anchorages. The potential for increased fall arrest forces and impact loads associated with horizontal lifelines explains the need for employers to ensure that personal fall arrest systems used with horizontal lifelines maintain a safety factor of at E:\FR\FM\18NOR7.SGM 18NOR7 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations srobinson on DSK5SPTVN1PROD with RULES6 least two. (See discussion of horizontal lifelines in appendix C to § 1910.140, section (j).) OSHA received one comment on the proposed provision. Ellis said OSHA should require that horizontal lifelines be positioned overhead when the personal fall arrest system is made ready for use because of increased forces when the line is at waist level. He added, ‘‘Due to stretch the fall factor increases fall distance when the line is below shoulder height’’ (Ex. 155). OSHA recognizes that using horizontal lifelines at waist level may be unavoidable in some circumstances. Requiring that a qualified persons design, install, and supervise the use of horizontal lifelines with personal fall arrest systems helps to ensure that issues such as the positioning of horizontal lifelines will be properly considered and resolved before the personal fall arrest system is used. Paragraph (c)(12) of the final rule, like the proposed rule, requires that employers ensure anchorages used to attach to personal fall protection equipment are independent of any anchorage used to suspend workers or work platforms. This requirement ensures that if the anchorage holding other equipment (such as a powered platform or RDS) fails, the worker will still be protected by the separate, independent anchorage to which the personal fall protection system is secured. The purpose of the requirement, which the shipyard employment and construction fall protection standards also require (§§ 1915.159(a)(8); 1926.502(d)(15)), is to ensure that anchorages used to suspend workers or work platforms are not the anchorages that workers use for their personal fall protection system. The Industrial Truck Association (ITA) said the provision was not a workable requirement for mobile work platforms such as those on powered industrial trucks: On powered industrial trucks that have elevating platforms, such as high-lift order pickers, the anchorage for the lanyard that comprises part of the personal fall protection equipment is necessarily a part of the overhead guard or some other structural member that elevates with the operator platform and through the same mechanism (the lift chains) as the platform. This is inherent in mobile equipment, which cannot depend on some separate fixed anchorage point for the personal fall protection equipment. The concern is that the anchorage used for attaching the personal protective equipment, since it moves up and down with the operator platform, could be considered not ‘‘independent’’ of the anchorage being used to support the platform. Since OSHA obviously did not intend by the proposed VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 revision to eliminate the use of high-lift order pickers or other powered industrial truck platforms, it appears that 1910.140(c)(12) requires a clarification for mobile equipment (Ex. 145). OSHA agrees with the issue the commenter raised and exempts mobile work platforms on powered industrial trucks from the requirement in final paragraph (c)(12) that anchorages be independent. Therefore, OSHA has added language to the final rule to address anchorages used to attach to personal fall protection equipment on mobile work platforms on powered industrial trucks. The new language specifies that those anchorages must be attached to an overhead member of the platform, at a point located above and near the center of the platform. OSHA modeled this language on the anchorage requirements in the national consensus standard on powered industrial trucks (ANSI/ITSDF B56.1–2012, Safety Standard For Low Lift and High Lift Trucks (Ex. 384; Section 7.37)). Paragraph (c)(13) of the final rule adopts strength requirements for anchorages for personal fall protection systems, and includes a performancebased alternative. The final provision, like the proposal, requires that anchorages either (1) be capable of supporting at least 5,000 pounds for each worker attached, or (2) be designed, installed, and used under the supervision of a qualified person as part of a complete personal fall protection system that maintains a safety factor of at least two. The anchorage strength requirement applies to personal fall arrest, travel restraint, and positioning system anchorages, but not to window cleaner’s belt anchors, which are addressed separately in paragraph (e). Paragraph (c)(13) is the same as the personal fall protection system anchorage requirement in OSHA’s Powered Platforms, shipyard employment and construction fall protection standards (§§ 1910.66, appendix C, Section (c)(10); 1915.159(a)(9); 1926.502(d)(15)). The A10.32–2012 standard also contains similar requirements (Section 5.1.1). Although the anchorage requirements in Z359.1–2007 and I–14.1–2001 are similar to the final rule, they differ to some extent. For example, the Z359.1 standard requires: Anchorages selected for [personal fall arrest systems] shall have a strength capable of sustaining static loads, applied in the directions permitted by the PFAS, of at least: (a) Two times the maximum arrest force permitted on the system, or (b) 5,000 pounds (22.2kN) in the absence of certification. When more than one PFAS is attached to an anchorage, the anchorage strengths set forth PO 00000 Frm 00163 Fmt 4701 Sfmt 4700 82655 in (a) and (b) above shall be multiplied by the number of personal fall arrest systems attached to the anchorage (Section 7.2.3). The I–14.1 standard requires that all components of personal fall arrest systems, including anchorages, comply with the Z359.1 standard, with some exceptions, such as window cleaner’s belts (Section 9.2.2(a)). OSHA did not receive any comments opposing proposed paragraph (c)(13), and Ameren specifically supported the performance language alternative: ‘‘Ameren agrees with this language so as to allow use to determine suitable anchorage points because of capacity and not be restricted due to other designations of the equipment’’ (Ex. 189). As discussed above, OSHA believes that all of the strength requirements in the final rule are necessary to provide a reasonable margin of safety for workers. At the same time, the final rule gives employers flexibility in meeting the anchorage strength requirement in specific circumstances. The final rule does not require a 5,000-pound anchorage point in every situation. An employer may use an anchorage that meets a different strength, provided that (1) the anchorage is part of a complete fall protection system, (2) the personal fall protection system maintains a safety factor of at least two, and (3) the anchorage is designed, installed, and used under the supervision of a qualified person. The Agency anticipates that even employers who cannot achieve 5,000pound anchorage strength should have no difficulty meeting the alternative 2:1 safety factor. For example, I–14.1–2001 requires that anchorages for positioning systems be capable of supporting 3,000 pounds or at least twice the potential impact load of a worker’s fall, whichever is greater (Section 9.2.3(b)). The I–14.1 requirement has been in place for more than 10 years, and employers are familiar with the standard. Ellis recommended that OSHA require employers using the alternate anchorage strength procedures in (c)(13) to document the anchorage ‘‘with at least a sketch or engineering drawing’’ because ‘‘anchorages are mostly guesswork’’ (Ex. 155). OSHA believes that the requirement in paragraph (c)(13), that qualified persons design, install, and supervise the use and maintenance of anchorages, is sufficient, and will be more effective in protecting workers than documentation by a person who may not have the qualifications of a qualified person. Qualified persons, as paragraph (b) specifies, must possess the type of E:\FR\FM\18NOR7.SGM 18NOR7 srobinson on DSK5SPTVN1PROD with RULES6 82656 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations qualifications (i.e., recognized degree, certificate, or professional standing or extensive knowledge, training, and experience) that makes them capable of designing anchorages that successfully meet the requirements of the final rule. Or, the qualified person must have demonstrated ability to solve and resolve the issues relating to the subject matter, work, or work project. Final paragraph (c)(13) requires that the qualified person supervise the use of the anchorages, which will ensure the qualified person oversees maintenance of the anchorages so they remain in safe and useable condition. OSHA believes this supervision will go further in providing worker protection than anchorage sketches or drawings. OSHA notes that an employer may use more than one qualified person to comply with the final rule. For example, some employers may choose to have an outside qualified person design the anchorages to meet the requirements of the final rule and an in-house, on-site qualified person to supervise their installation and use. Paragraph (c)(14) of the final rule, like the proposed rule, requires that restraint lines in travel restraint systems be capable of sustaining a tensile load of at least 5,000 pounds. OSHA’s existing fall protection standards do not include any requirements that specifically address travel restraint systems or lines. The requirement is drawn from two national consensus standards: (1) The A10.32– 2012 standard specifies that component parts of travel restraint systems be designed and manufactured to meet the standard’s requirements for personal fall arrest systems (Section 4.6.1); and (2) the Z359.3–2007 standard requires that positioning and travel restraint lanyards be capable of sustaining a minimum breaking strength of 5,000 pounds (Section 3.4.8). OSHA believes the strength requirement for travel restraint lines in final paragraph (c)(14) is necessary for several reasons. First, the requirement ensures that the restraint line provides adequate protection if a restraint line is ever used as a lifeline. For example, if a travel restraint system is not rigged properly or is inadvertently used with a personal fall arrest system, and the worker falls off the walking-working surface, the restraint line essentially becomes a lifeline. Because of this possibility, OSHA believes it is necessary that travel restraint lines have the same 5,000-pound minimum breaking strength required of personal fall protection system lifelines and lanyards (see paragraph (c)(4)). Second, according to CSG (Ex. 329 (1/ 18/2011, p. 110)) and Mine Safety VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 Appliances (MSA) (Ex. 329 (1/18/2011, p. 199)) travel restraint systems (including lines and lanyards) currently are designed and manufactured to support a 5,000 pound load. Further, MSA said they were not aware of any company that still manufacturers travel restraint lines that support only 3,000 pounds. Finally, setting the strength requirement at 5,000 pounds for travel restraint lines makes the provision consistent with other strength requirements in § 1910.140 for components of personal fall protection systems (e.g., D-rings, snaphooks, carabiners, anchorages (paragraphs (c)(7) and (13))). OSHA adopts the provision as discussed. Paragraph (c)(15) of the final rule requires that employers ensure lifelines are not made of natural fiber rope. Natural fiber rope of the same size is weaker than its synthetic counterpart and may burn under friction. When the employer uses polypropylene rope, the final rule requires that it must contain an ultraviolet (UV) light inhibitor. Final paragraph (c)(15) is consistent with OSHA’s Powered Platforms, shipyard employment, and construction fall protection standards (§§ 1910.66, appendix C, Section (c)(11); 1915.159(c)(2); 1926.502(d)(14)). Those standards specify that ropes and straps (webbing) used in lanyards, lifelines, and strength components of body belts and body harnesses be made from synthetic fibers or, with the exception of the construction standard, wire rope; however, those standards do not require that lifelines made of polypropylene rope contain a UV light inhibitor. The final rule provision also is consistent with Z359.1–2007 and with A10.32–2012, which provide useful guidance to help employers meet the requirement in final paragraph (c)(15). For example, the Z359.1 standard provides: ‘‘Rope and webbing used in the construction of lanyards shall be made from synthetic materials of continuous filament yarns made from light and heat resistant fibers having strength, aging, and abrasion resistant characteristics equivalent or superior to polyamides’’ (Section 3.2.3.1). The A10.32 standard specifies, ‘‘Harnesses, lanyards, lifelines and other loadbearing devices shall not be made of natural fibers (including, but not limited to, cotton, manila and leather)’’ (Section 4.5.5). The I–14.1–2001 standard requires that all personal fall arrest systems used in window cleaning operations comply with Z359.1, and prohibits ropes made entirely of polypropylene (Sections 6.8, 9.2.2(a)). In addition, the standard requires that all PO 00000 Frm 00164 Fmt 4701 Sfmt 4700 rope and webbing used in suspending RDS seat boards be made of synthetic fiber, preferably nylon or polyester (Section 14.3(d)). Like the Z359.1 standard, OSHA recognizes that degradation due to exposure to ultraviolet light can be a serious problem, especially for polypropylene rope. However, OSHA believes that polypropylene rope has certain advantages compared to other synthetic materials. Polypropylene rope is strong and flexible, and may be less costly than rope made of other materials. Moreover, many newer polypropylene ropes are made with UV light inhibitors, so employers can use polypropylene rope without the risk of degradation from UV light. The Agency believes the final rule provides adequate protection for workers while embracing technological advances that give employers greater flexibility in complying with paragraph (c)(15). Additionally, OSHA removed ‘‘carriers’’ from the final provision. Carriers are used exclusively in ladder safety systems, which are covered in § 1910.23, and not in personal fall protection systems. OSHA did not receive any comments on the proposed provision, and adopts it as discussed. Paragraph (c)(16) of the final rule, like the proposed rule, requires that all personal fall protection systems and components be used only for worker fall protection. Paragraph (c)(16) also prohibits personal fall protection systems from being used for any other purpose, such as hoisting materials or equipment. The final rule applies to all personal fall protection systems, including personal fall arrest systems, positioning devices and travel restraint systems and components such as anchorages, harnesses, connectors, and lifelines. The final rule is similar to OSHA’s Powered Platforms, shipyard employment and, construction fall protection standards (§§ 1910.66, appendix C, Section I, paragraph (c)(6); 1915.159(c)(9); 1926.502(d)(18)). OSHA received one comment on the proposed requirement. Although Verallia ‘‘agree[d] with OSHA’s goal of using . . . personal fall protection equipment only for its intended purpose,’’ they said: [A]nchorage points—while clearly performing a function related to the use of personal fall protection—fall outside the intended goal of preserving intact the equipment itself. In other words, anchorage points are designed for and have many uses outside of fall protection in industrial settings. Their occasional use for tasks other than personal fall protection is consistent with their design (Ex. 171). E:\FR\FM\18NOR7.SGM 18NOR7 srobinson on DSK5SPTVN1PROD with RULES6 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations OSHA agrees anchorages have uses other than for personal fall protection. Anchors are used for suspended work platforms, rope descent systems, and other equipment. For example, using a structural beam as an anchorage does not mean the structural beam can never be used as a structural member. OSHA intends this provision to apply to those components that would typically be found in a personal fall protection kit, i.e., a body harness, lanyards, and connectors. Structural members used as anchorage points will obviously continue to be structural members and do not fall under this provision. However, for example, if a worker is using appropriate webbing tied around a structural member as an anchor point for personal fall protection, that webbing must be used only for personal fall protection, both at that time, and in the future. The webbing (and harness, lanyard, and connectors) must not be used for any other purpose at any other time, such as hoisting materials and equipment. Paragraph (c)(17) of the final rule, like the proposed rule, requires that any personal fall protection system or its component subjected to impact loading must be removed from service immediately. This requirement applies to impact loading due to a free fall, but not to impact loading during static load testing. The final rule also specifies that the employer must not use the system or component again until a competent person inspects the system or component and determines that it is not damaged and is safe to use for worker personal fall protection. The final rule is the same as the Powered Platforms, shipyard employment and construction fall protection standards (§§ 1910.66, appendix C, Section I, paragraph (e)(7); 1915.159(c)(6); 1926.502(d)(19)). The Z359.1–2007 (Section 5.3.4) and A10.32–2012 (Section 3.4) standards also require that impact loaded systems and components be removed from service; however, neither standard specifies requirements that allow or prohibit reuse of such equipment. OSHA believes that paragraph (c)(17) will ensure that employers implement procedures for inspection and evaluation of impact-loaded personal fall protection systems and components to prevent reuse of damaged equipment. OSHA believes that the requirements in paragraph (c)(17), as well as the other requirements in the final rule, provide sufficient safeguards to allow the reuse of impact-loaded personal fall protection systems after the competent person inspects and repairs or replaces the damaged components. VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 The final rule provides the following safeguards to ensure the dangers of impact-loaded personal fall protection systems are addressed properly before reuse: • Paragraph (c)(18) of the final rule, discussed below, requires that employers ensure personal fall protection systems are inspected for damage before each use, and remove defective components from service; • Section 1910.30 of the final rule requires that each worker be trained in the proper inspection of fall protection equipment; and • Appendix C to § 1910.140 provides useful information on inspecting fall protection equipment and components. OSHA requested comment on whether the proposed approach provides adequate protection. In particular, OSHA asked for comment on whether the final standard should require destruction of ropes, lanyards, belts, and harnesses subjected to impact loading (75 FR 28909). Impact loading can cause damage to fibers that cannot be discovered easily. OSHA notes these components are relatively inexpensive to replace. OSHA received comments supporting the proposed requirement (Exs. 185; 198; 251). ISEA (Ex. 185) and CSG (Ex. 198) both said that manufacturers commonly indicate in user instructions and product labels how to handle personal fall protection equipment after an impact, and recommended that: ‘‘OSHA should err on the side of worker protection and recommend that when components of personal fall arrest systems such as ropes, lanyards, or harnesses are impact loaded, they should be permanently taken out of service and disposed of’’ (Ex. 185). ISEA and CSG pointed out that some fall protection components have an impact load indicator that alerts users when a product must be taken out of service (Exs. 185; 198). This device makes it easy for employers to know when they need to remove personal fall protection systems and components from service and replace them. One commenter on the 1990 proposed rule said that only manufacturers should inspect systems to determine if they are suitable for reuse (Ex. OSHA–S057–2006–0680– 0048). By contrast, Edison Electric Institute (EEI) opposed requiring removal of equipment subjected to impact loading. EEI said, ‘‘Inspection by a competent person is adequate to determine whether the component is still functional’’ (Ex. 207). Similarly, SPRAT opposed the destruction of equipment that is ‘‘retired’’ (Ex. 205). PO 00000 Frm 00165 Fmt 4701 Sfmt 4700 82657 OSHA believes that impact loading may adversely affect the integrity of personal fall protection systems, but also recognizes that many other factors can affect a system’s potential capability for reuse after impact loading. These factors include the type of deceleration device used, and the length of the fall. For example, a short fall of one foot may not damage the harness, but a long fall, such as six feet or more, may damage or even destroy the harness. OSHA believes that if an impact-loaded system or component is damaged or fails the employer must remove it from service immediately so a competent person can inspect the system or component and determine whether it can be reused for worker fall protection. However, when a competent person’s careful inspection of the entire system and evaluation of the factors involved in the fall indicates no damage has occurred, and the personal fall protection system or component continues to meet the strength requirement and other criteria necessary for continued use, OSHA does not believe it is necessary that employers permanently remove the system or component from use. OSHA notes that the employer should be allowed to reuse such system and components. In addition, OSHA believes that a competent person, as defined in paragraph (b) of the final rule, has the ability to carefully inspect the personal fall protection system and its components, evaluate the various factors involved in the fall, and make a determination about whether the equipment is safe for reuse. Moreover, the competent person has the authority to take prompt corrective action, including prohibiting the reuse of the equipment or any component that may have been damaged. Paragraph (c)(18) of the final rule, like the proposal, requires that before initial use during each workshift, personal fall protection systems must be inspected for mildew, wear, damage, and other deterioration. The provision also requires that employers remove from service any defective component. Final paragraph (c)(18) clarifies two key terms: ‘‘before each use’’ and ‘‘defective component.’’ Proposed paragraph (c)(18) specified that workers must inspect personal fall protection systems ‘‘before each use.’’ The final rule expressly clarifies that OSHA’s intention in the proposed rule was that workers inspect their personal fall protection systems before initial use during each workshift. Thus, if the personal fall protection system is used in more than one workshift during a day, the system must be reinspected at the start of each of those workshifts. E:\FR\FM\18NOR7.SGM 18NOR7 srobinson on DSK5SPTVN1PROD with RULES6 82658 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations OSHA also clarifies that the term ‘‘defective component,’’ which appendix C to § 1910.140 refers to as a ‘‘significant defect,’’ means damage or deterioration that affects the function or strength of the system or component. The final rule is generally consistent with OSHA’s Powered Platforms, construction, and shipyard employment standards (§§ 1910.66, appendix C, Section I(f); 1915.159(c)(5); 1926.502(d)(21)), as well as with Z359.1–2007 (Section 6.1) and A10.32– 2012 (Section 4.1). OSHA believes that paragraph (c)(18), like paragraph (c)(17), will ensure that employers have a procedure in place for inspecting personal fall protection systems and components and removing defective, damaged, or weakened components from service. Appendix C to § 1910.140 provides useful information to help employers with the inspection requirement in the final rule, including a list of the types of defects that can require removal. (See appendix C to § 1910.140, Section (g)). OSHA received only one comment on inspection of personal fall protection systems. Verallia recommended that OSHA require ‘‘prior to use, each employee must visually inspect the anchorage points for wear and obvious deformities’’ (Ex. 171). OSHA does not believe it is necessary to add the language in Verallia’s recommendation because paragraph (c)(18) already requires that employers inspect anchorage points. Paragraph (c)(18) requires that employers inspect personal fall protection systems. The definition of personal fall protection system in the final rule identifies personal fall arrest systems, positioning systems, and travel restraint systems as examples of personal fall protection systems. The definitions of each of those systems explain that they consist of various components (‘‘a system of equipment’’), including anchorages. Therefore, employers must ensure that the inspection covers every component of the personal fall protection system, including anchorages, so the entire system is safe to use. Paragraph (c)(19) of the final rule requires employers to ensure that ropes, lanyards, harnesses, and belts used for personal fall protection are compatible with the connectors being used. Although the final rule does not define ‘‘compatible,’’ Z359.0–2012 defines compatible as follows: Capable of orderly, efficient integration and operation with other elements or components in a system, without the need of special modification or conversion, such that the connection will not fail when used in the manner intended (Section 2.29). VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 OSHA believes compatibility between personal fall protection components and connectors is essential to prevent hazards such as rollout, exceeding system strength, and long free fall distances that can increase fall arrest forces significantly. For example, a lifeline or harness can disengage from a connector if its size or dimension is incompatibly sized or configured for use with the connector. In addition, the Agency has found that it is common practice for employers to interchange or replace components of personal fall protection systems (e.g., lanyards, connectors, lifelines, deceleration devices, body harnesses, body belts) with components produced by other manufacturers. Final paragraph (c)(19) gives employers flexibility to continue this practice when they need to replace personal fall protection components. At the same time, the final rule ensures that workers are protected from rollout and other fall hazards regardless of whether the employers uses replacement components from the same or a different manufacturer. Appendix C to final § 1910.140 provides important information to help employers ensure they maintain compatibility when replacing personal fall protection components. For example, the appendix cautions: ‘‘Any substitution or change to a personal fall protection system should be fully evaluated or tested by a competent person to determine that it meets applicable OSHA standards before the modified system is put to use’’ (§ 1910.140, appendix C, Section (d)). OSHA notes that final paragraph (c)(19) and appendix C are consistent with Z359.1–2007 (Section 7.1.7), which requires that connectors, regardless of whether they are integral elements of the personal fall protection system, individual components, or replacements produced by the same or different manufacturers, must be suitably configured to interface compatibly with associated connectors which will be attached to them. Final appendix C to § 1910.140 states the ideal way for employers to ensure the compatibility of components of personal fall protection systems is to supply workers with complete systems (appendix C to § 1910.140, Section (d)). The final rule is similar to the shipyard employment fall protection standard, which requires that system components be compatible with ‘‘their hardware’’ (§ 1915.159(c)(3)). Both Z359.1–2007 and A10.32–2012 include similar compatibility requirements. For example, A10.32 specifies: ‘‘All equipment used in a fall protection system shall be compatible to limit force PO 00000 Frm 00166 Fmt 4701 Sfmt 4700 levels, maintain system strength, and prevent accidental disengagement’’ (Section 1.4.3; see also Z359.1–2007 (Section 7.1.1)). These national consensus standards also require that competent persons ensure personal fall protection systems comprised of components and subsystems produced by different manufacturers are compatible (Z359.1–2007 (Section 7.1.10); A10.32–2012 (Section 7.4)). Commenters raised two concerns about proposed paragraph (c)(19). First, ISEA and CSG seem to imply that the compatibility requirement in final paragraph (c)(19) is not necessary (Exs. 185; 198). For support, they point out that Z359.12 (Section 7.1) requires that snaphooks and carabiners be designed to prevent ‘‘forced rollout,’’ which ISEA and CSG appear to believe is an adequate solution without requiring that employers also comply with paragraph (c)(19). In addition, ISEA and CSG pointed out that manufacturers currently are designing connectors to prevent forced rollout. However, the explanatory note in Z359.12 states: While connectors which are compliant with ANSI/ASSE Z359.12 reduce the possibility or risk of failure as a result of incompatible connections, they do not eliminate it (Z359.12–2009 (Section E7.1)). Moreover, OSHA notes that rollout is not the only hazard that component incompatibility can cause. The A10.32– 2012 standard specifies that components of personal fall protection systems must be compatible in order ‘‘to limit force levels, maintain system strength, and prevent accidental disengagement’’ (Section 1.4.3). Accordingly, OSHA believes the component compatibility requirement in final paragraph (c)(19) is necessary because it will protect workers from all of those hazards. Second, ASSE argues that it is not feasible to eliminate incompatible connections: The reality is that there are too many noncertified anchorages and structural variations where gate loading or pressure on the connector will occur. It is not enough just to require a locking type snap hook. Connectors that have significantly stronger gates are readily available and have been for many years to the point where ANSI has made it a requirement for construction and design of connectors. Connectors tested and approved to the ANSI Z359.12 standard provide workers with an additional level of security that would help prevent fatalities (Ex. 127). OSHA does not agree with, and national consensus standards do not support, ASSE’s argument. The Z359.12–2012 and A10.32–2012 standards include component E:\FR\FM\18NOR7.SGM 18NOR7 srobinson on DSK5SPTVN1PROD with RULES6 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations compatibility requirements. In addition, the final rule addresses the conditions that ASSE identifies as making the elimination of incompatible connections infeasible. For example, like the ANSI/ ASSE standards, the final rule requires that anchorages, connectors, and other components be capable of supporting 5,000 pounds (§ 1910.140(c)(4), (c)(7), and (c)(13)(i)). In addition, final § 1910.27(b)(1) requires that anchorages be certified as meeting the 5,000-pound requirement. The final rule also incorporates a number of other provisions in Z359.12–2012 to ensure workers have ‘‘an additional level of security that would help prevent fatalities.’’ ASSE also maintains that the requirement in proposed (c)(19) is not feasible because ‘‘we continue to see fatalities related to incompatible connections and gate failure’’ after OSHA included a connector compatibility requirement in § 1910.66, appendix C, and the construction fall protection standard (29 CFR part 1926, subpart M) (Ex. 127). OSHA does not agree with ASSE’s conclusion. The fact that accidents, fatalities, injuries, or illnesses may occur after OSHA implements a standard does not mean that the controls the standard requires are not feasible. Rather, it is more likely that those incidents are the result of noncompliance with the connector compatibility requirements in § 1910.66 and the construction fall protection. Accordingly, the final rule adopts the proposed requirement that employers must ensure ropes, belts, lanyards, and harnesses used for personal fall protection are compatible with all connectors used, regardless of whether the components are integral elements of the personal fall protection system, individual components, or replacements produced by the same or different manufacturers. Paragraph (c)(20) of the final rule, like the proposal, requires that employers ensure all ropes, lanyards, lifelines, harnesses, and belts used for personal fall protection systems are protected from being cut, abraded, melted, or otherwise damaged. OSHA believes that these components of personal fall protection systems need to be protected from the specified hazards, which could cause damage and deterioration that results in components losing strength and failing. Final paragraph (c)(20) is broader than the requirements in OSHA’s shipyard employment and construction fall protection standards (§§ 1915.159(c)(4), 1926.502(d)(11)), which only address protecting lanyards and lifelines from damage. By contrast, Appendix C of the VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 Powered Platforms standard specifies that any component of a personal fall arrest system with any significant defect which might affect its efficiency must be withdrawn from service immediately, or destroyed (§ 1910.66, appendix C, Section III(f)). The Z359.1–2007 and A10.32–2012 standards contain several provisions requiring lifelines, lanyards, ropes, webbing, and other fall protection system components to be protected from the types of damage the final rule specifies. In addition to protecting fall protection equipment components from cuts, abrasions, and melting, the final rule requires that employers protect fall protection equipment from other damage (i.e., ‘‘otherwise damaged’’). Although the final rule does not define ‘‘otherwise damaged,’’ OSHA’s other fall protection standards and the national consensus standards provide useful guidance about the types of damage that employers need to consider. For example, the shipyard employment standard requires equipment be protected from ‘‘cuts, abrasions, burns from hot work operations and deterioration from acids, solvents, and other chemicals’’ (§ 1915.159(c)(4)). Appendix C to the Powered Platforms standard lists a number of hazards: ‘‘Any components with any significant defect, such as cuts, tears, abrasions, mold, or undue stretching; . . . damage due to deterioration; contact with fire, acids, or other corrosives; . . . wearing or internal deterioration of ropes alterations’’ (§ 1910.66, appendix C, Section III(f)). The A10.32–2012 standard requires that employers protect fall protection equipment from abrasion, cutting, welding, electrical, and chemical hazards (Section 7.5). Similarly, Z359.1 requires that fall protection equipment be made of ‘‘abrasive and heat resistant materials’’ (Sections 3 and 5). OSHA did not receive any comments on the proposed provision, and adopts paragraph (c)(20) with the minor revisions mentioned above. In addition, appendix C to § 1910.140 includes many hazards employers should consider when inspecting personal fall protection systems (appendix C to § 1910.140, Section (g)). Paragraph (c)(21) of the final rule, like the proposed rule, requires that employers provide for the prompt rescue of workers in the event of a fall. This requirement is necessary because workers suspended after a fall are in danger of serious injury due primarily to suspension trauma. The final rule is consistent with the rescue requirements in OSHA’s Powered Platforms, shipyard PO 00000 Frm 00167 Fmt 4701 Sfmt 4700 82659 employment, and construction fall protection standards (§§ 1910.66, appendix C, Section I(e)(8); 1915.159(c)(7); 1926.503(d)(20)). Those standards require that employers ‘‘provide for prompt rescue of employees in the event of a fall or shall assure the self-rescue capability of employees’’ (Powered Platforms (§ 1910.66, appendix C, Section I(e)(8)). The final rule also is drawn from three national consensus standards. The A10.32–2012 standard specifies that employers develop a ‘‘project-specific’’ rescue plan that provides an appropriate form of employee rescue (Section 7.2.2.). The standard also requires that the rescue plan include providing adequate rescue equipment and training workers in self-rescue or alternate means. The Z359.4–2007 standard provides useful information to assist employers in planning for rescues in the event of a fall. Finally, Z359.1–2007 requires that worker training address fall rescue (Section 7.3.2). Paragraph (c)(21) of the final rule sets forth two fundamental points: (1) Employers must provide for the rescue of workers when a fall occurs, and (2) the rescue must be prompt. With regard to the first point, the final rule requires that employers must ‘‘provide’’ for rescue, which means they 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 § 1910.140 provides guidance to employers on developing a rescue plan (appendix C to § 1910.140, Section (h)) as does Z359.4–2007. 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 Bulletin on Suspension Trauma/ Orthostatic Intolerance identifies factors that employers should consider in developing and implementing a rescue plan, including recognizing the signs and symptoms of suspension trauma and factors that can increase the risk of trauma, rescuing unconscious workers, monitoring suspended and rescued workers, providing first aid for workers showing signs and symptoms of orthostatic intolerance (see SHIB 03–24– E:\FR\FM\18NOR7.SGM 18NOR7 82660 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations srobinson on DSK5SPTVN1PROD with RULES6 2004, updated 2011).77 ISEA supported requiring employers to have a rescue plan and make available equipment and personnel to provide for prompt rescue after a fall (Ex. 185). OSHA notes that although an increasing number of employers provide devices that allow workers to rescue themselves, where self-rescue is not possible, the employer must ensure that appropriate rescue personnel and equipment is available for prompt rescue. For example, unconscious workers will not be able to move so they cannot pump their legs to maintain circulation or relieve pressure on their leg muscles. Workers who are seriously injured or in shock also may have difficulty effecting self-rescue. On the second point, the final rule requires that employers provide ‘‘prompt’’ rescue of workers who are suspended after a fall. A number of commenters asked OSHA to clarify the meaning of ‘‘prompt’’ rescue, for example, asking whether it means ‘‘immediately’’ or ‘‘quickly’’ (Exs. 145; 185; 198). ISEA and CSG urged OSHA to require that suspended workers be rescued ‘‘quickly,’’ pointing out the lifethreatening dangers of suspension trauma and orthostatic intolerance (Exs. 185; 198). In 2000, OSHA adopted the language ISEA and CSG recommends in answering the question of prompt rescue as it applies to the construction fall protection standard: ‘‘[T]he word ‘‘prompt’’ requires that rescue be performed quickly—in time to prevent serious injury to the worker’’ (Letter to Mr. Charles E. Hill, August 14, 2000).78 OSHA’s definition of ‘‘prompt’’ is performance based. 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 mitigate the severity of the injury and increase the survivability of the worker. OSHA’s performance-based definition recognizes, and takes into account, the life-threatening dangers of prolonged suspension: 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 77 Available from OSHA’s Web site at: https:// www.osha.gov/dts/shib/shib032404.html. 78 Available from OSHA’s Web site at: https:// www.osha.gov/pls/oshaweb/owadisp.show_ document?p_table=INTERPRETATIONS&p_ id=24110). VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 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). Because of the potential for severe and even fatal injuries from prolonged suspension, OSHA believes that employers can ensure their rescue operations are effective if they model them on their first-aid plans. To illustrate, in the final rule revising general workplace conditions in shipyard employment (29 CFR part 1915, subpart F), which requires that employers provide ‘‘readily accessible’’ first aid, OSHA defined ‘‘readily accessible’’ as ‘‘capable of being reached quickly enough to ensure that medical service interventions are effective,’’ and noted that ‘‘medical services and first aid must be provided in a timeframe that will ensure their effectiveness in treating an injured or ill employee. Medical services that can be delivered quickly enough to the employee to be effective would be considered readily accessible’’ (76 FR 24576, 24600 (5/2/ 2011)). (For a detailed discussion of effective emergency aid and first aid, see the preamble of the shipyard employment standard (76 FR 24599– 664)). OSHA also finds that the emergencyaid and first-aid response needs to be available within a few minutes ‘‘in workplaces where serious accidents such as those involving falls . . . are possible’’ (Letter to Mr. Charles Brogan, January 16, 2007).79 As ISEA pointed out, the Z359.4–2007 standard recommends that contact be made within six minutes of a fall. In summary, prompt rescue means employers must be able to rescue suspended workers quickly enough to ensure the rescue is successful—quickly enough to ensure that the worker 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 minimized. OSHA believes the performance-based 79 Available from OSHA’s Web site at: https:// www.osha.gov/pls/oshaweb/owadisp.show_ document?p_table=INTERPRETATIONS&p_ id=25627. PO 00000 Frm 00168 Fmt 4701 Sfmt 4700 approach in the final rule ensures 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. OSHA also received several comments on what the final rule requires to protect workers from orthostatic intolerance. ITA requested that OSHA clarify whether the final rule requires workers to carry self-rescue equipment (Ex. 145). ISEA and CSG recommended that OSHA require employers to equip workers with suspension-relief devices and revise the definition of ‘‘personal fall arrest system’’ to include those devices. They said there are widely available devices that permit a suspended worker to relieve pressure from the harness and to ‘‘maintain circulation in the large muscles of legs, reducing the potential for suspension trauma until help arrives’’ (Exs. 185; 198). According to ISEA and CSG, the devices are lightweight, portable, and low cost, and workers can carry them as part of the personal fall arrest system. OSHA agrees that the benefits these devices offer are promising, and recommends that employers provide them, particularly in those situations where self-rescue may not be possible. Paragraph (c)(22) of the final rule requires that workers wear personal fall protection systems with the attachment point of the body harness in the center of the worker’s back near shoulder level. The final rule includes one exception— the attachment point may be located in the pre-sternal position if the free fall distance is limited to 2 feet or less. The final rule differs from OSHA’s Powered Platforms, construction, and shipyard employment fall protection standards, which do not permit the attachment point to be located in the pre-sternal position (§§ 1910.66, appendix C, Section I(e)(4); 1915.159(c)(1)(i); 1926.502(d)(17)). OSHA drew the exception for presternal positioning in final paragraph (c)(22) from Z359.1–2007, which permits a front-mounted attachment point when the maximum free fall distance is two feet and the maximum arrest force is 900 pounds (Section 3.2.2.5a). A note to that section explains: ‘‘The frontal attachment element is intended for the use in rescue, work position, rope access, and other ANSI/ASSE Z359.1 recognized applications where the design of the systems is such that only a limited free fall of two feet is permitted’’ (Section E3.2.2.5a). The I–14.1–2001 standard incorporates this requirement from Z359.1 (Section 9.2). E:\FR\FM\18NOR7.SGM 18NOR7 srobinson on DSK5SPTVN1PROD with RULES6 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations The final rule differs from the proposed rule in two respects. First, the language ‘‘or above the employee’s head’’ has been eliminated from the first sentence of the proposed provision because OSHA believes this language is inaccurate. A properly sized and adjusted harness should not allow the attachment point to be above the wearer’s head. Second, the proposal would have required that front-mounted attachment points be limited to situations where the maximum fall arrest force does not exceed 900 pounds. OSHA deleted this requirement in this final rule because the Agency does not believe that the requirement is necessary. Final paragraph (c)(22) permits pre-sternal attachment only when the maximum free fall limit is two feet. OSHA believes this limit is sufficient to ensure fall arrest forces are reduced significantly in the event of a fall. ISEA (Ex. 185) and CSG (Ex. 198) opposed the 900-pound fall arrest requirement, which they said was ‘‘too prescriptive and restrictive.’’ Several commenters supported allowing a front-mounted attachment in certain situations, and OSHA did not receive any comments opposing its use. ISEA (Ex. 185) and CSG (Ex. 198) supported allowing front-mounted attachment points because it allowed workers to ‘‘conduct a variety of tasks, such as rotating and leaning.’’ AWEA also supported pre-sternal connection points, noting, ‘‘Rope access workers around the world have been employing this technique for decades with excellent results’’ (Ex. 329 (1/21/2011, p. 22)). OSHA believes that allowing presternal attachment when the free fall distance is limited to two feet will have only a minimal effect on the distribution of fall arrest forces, thereby reducing the risk of serious neck and back injury. Such use will make self-rescue easier in specific situations, such as confined spaces, window cleaning, and climbing activities because it is easier to work in front of the body than work behind one’s body. In addition, permitting a front-mounted attachment point provides greater flexibility for employers in certain activities, such as climbing or using rope descent systems for window washing. Accordingly, the final rule retains the proposed exception for front-mounted attachment points when the maximum free fall distance is two feet. Paragraph (d)—Personal Fall Arrest Systems Paragraph (d) of the final rule establishes specific requirements for using personal fall arrest systems. A VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 personal fall arrest system is one type of personal fall protection system. The final rule defines a personal fall arrest system as a system used to arrest a worker in a fall from a walking-working surface. A personal fall arrest system consists of a body harness, anchorage, and a connector. The means of connection may include a lanyard, deceleration device, lifeline, or a suitable combination of these. OSHA notes that the provisions in paragraph (d) apply in addition to those provisions in paragraph (c), which apply to all types of personal fall protection systems. Paragraph (d) of the final rule includes some changes in the regulatory text from the proposal that clarify and simplify the language. Those changes do not affect the meaning or purpose of the provisions in paragraph (d). OSHA believes that the changes make the requirements in paragraph (d) easier for employers to understand, which should increase worker safety, and compliance with the final rule. Paragraph (d) consists of two primary components: Paragraph (d)(1) establishes performance criteria for personal fall arrest systems, while paragraph (d)(2) addresses the use of personal fall arrest systems. OSHA based the requirements for personal fall arrest systems on OSHA’s Powered Platforms, construction, and shipyard employment fall protection standards (§§ 1910.66, appendix C; 1915.159; 1926.502(d)), as well as on several national consensus standards, including Z359.1–2007, A10.32–2012, and I–14.1–2001. System performance criteria. The requirements in final paragraph (d)(1), with one exception, are almost identical to the requirements in OSHA’s Powered Platforms, shipyard employment, and construction fall protection standards (§§ 1910.66, appendix C, Section I(d)(1); 1915.159(b)(6); 1926.502(d)(16)).80 Paragraph (d)(1)(i) of the final rule requires that employers ensure personal fall arrest systems limit the maximum fall arrest forces on a worker to 1,800 pounds. OSHA discussed the requirement extensively in the preamble to the Powered Platforms final rule, noting that the Agency proposed ‘‘a 80 OSHA first promulgated these performance requirements in the Powered Platforms rulemaking (54 FR 31407 (7/28/1989)). In the preamble to that final rule, OSHA said that it intended to apply a future rule to all uses of personal fall arrest systems in general industry, including powered platforms, and that Appendix C to that rule would be superseded by the new rule (54 FR 31445–46). This final rule, like the proposal (75 FR 29146), removes appendix C to OSHA’s Powered Platform rule (§ 1910.66). Final § 1910.140 addresses personal fall arrest systems used in all general industry, including powered platforms. PO 00000 Frm 00169 Fmt 4701 Sfmt 4700 82661 force limit of 10 times the worker’s weight or 1,800 pounds (8 kN) whichever is less’’ (54 FR 31450). OSHA explained that the Powered Platforms proposed rule was consistent with ANSI A10.14–1975 and a report by the National Bureau of Standards (now the National Institute for Science and Technology) (54 FR 31450). In addition, OSHA said comments from the United States Technical Advisory Group, an advisory group representing both government and private interests, also supported the 1,800-pound maximum fall arrest limit for personal fall arrest systems. When the Z359.1 standard was first published in 1992, it also incorporated the 1,800-pound maximum fall arrest force for personal fall arrest systems used with body harnesses, and retained the requirement in every update since 1992. The updated versions of Z359.1 (1992, 2002, and 2007) each explained the basis for the 1,800-pound maximum arresting force (MAF) limit as follows: The 1,800 pound (8 kN) MAF criteria included in this standard is based on the following considerations. In the mid-1970’s medical information developed in France confirmed earlier United States research which observed that approximately 2,700 pounds (12 kN) is the threshold of significant injury incidence for physically fit individuals subjected to drop impacts when wearing harnesses. The French arbitrarily halved the above force and established 1,350 pounds (6 kN) as their national standard for MAF in PFAS. Canada’s Ontario Ministry of Labor reviewed this information and elected to establish 1,800 pounds (8 kN) for MAF. This MAF has been in effect since 1979 in the Ontario Provincial standard. Since that time there have been no reported deaths or serious injuries associated with the arresting of accidental falls of individuals. In addition, ISO/TC94/SC4, in working drafts, has established the 1,800 pounds (8 kN) limit on MAF. On the basis of this information, 1,800 pounds (8 kN) is considered the appropriate MAF for inclusion in this standard where harnesses are to be used in arresting falls (Section E3.1.2). Based on this research, OSHA believes that the 1,800 pound fall arrest force will adequately protect workers. OSHA did not receive any comments opposing the proposed provision, and is adopting it in the final rule with only minor editorial changes. Paragraph (d)(1)(ii) limits the maximum deceleration distance to 3.5 feet. This requirement pertains only to the operation of the deceleration device itself and not to the 6-foot free fall distance specified in paragraph (d)(2)(ii). The 3.5-foot deceleration distance in this paragraph is in addition to the 6-foot free fall distance. Accordingly, once the free fall ends and the deceleration device begins to E:\FR\FM\18NOR7.SGM 18NOR7 srobinson on DSK5SPTVN1PROD with RULES6 82662 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations operate, the personal fall arrest system must bring the worker to a complete stop within 3.5 feet. Combining the free fall distance with the deceleration distance means that the total maximum distance a worker may travel during a fall could be 9.5 feet. The final rule is the same as the requirement in the Powered Platforms, construction, and shipyard employment fall protection standards (§§ 1910.66, appendix C, Section I (d)(1)(iii); 1915.159(b)(6)(iii); 1926.502(d)(16)(iv); also see 54 FR 31450 and 59 FR 40708). Paragraph (d)(1)(ii) also is consistent with Z359.1–2007 (Section 3.1.2). In addition, the 3.5 deceleration distance has been an industry and manufacturer standard for years. OSHA did not receive any comments on the proposed requirement, and the final rule is adopting it as proposed with only minor changes. Paragraph (d)(1)(iii) requires personal fall arrest systems to have sufficient strength to withstand twice the potential impact energy of the worker free falling a distance of 6 feet, or the free fall distance permitted by the system. In the final rule, OSHA has clarified the provision by removing the proposed language ‘‘whichever is less.’’ Both ways of meeting the standard are acceptable and the removed language is unnecessary. OSHA notes that the alternative free fall distance is the one the manufacturer lists in the instructions or specifications for the specific personal fall arrest system. Compliance with this requirement ensures that the personal fall arrest system will not fail even if subjected to twice the design shock load. For example, a personal fall arrest system harness that just meets the maximum permitted arresting force allowed in final paragraph (d)(1)(i) must be able to withstand an impact force of 3,600 pounds, which is twice the 1,800-pound potential arresting force of a worker using the system falling up to 6 feet. The Agency determined that a safety factor of two is necessary to ensure that the personal fall arrest system will not fail even if there is unavoidable wear on the system as a result of normal use. In practice, fall arrest forces should never approach the design shock load because the free fall distance likely will be 6 feet or less, and because lifelines which absorb energy, often will be used. OSHA also determined that a safety factor of two provides adequate protection and makes the final rule consistent with the approach in OSHA’s Powered Platforms, construction, and shipyard employment fall protection standards. Paragraph (d)(1)(iv) is a new paragraph added to the final rule VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 requiring that fall arrest systems be capable of sustaining the worker within the system or strap configuration without making contact with the worker’s neck and chin area. The National Institute for Occupational Safety and Health (NIOSH) recommended adding this provision, saying: ‘‘[S]tudies have shown that during suspended condition, the chest strap and ring of the harness can ride up on the worker’s neck if the harness does not fit properly, posing a risk of injury to the worker [Hsiao et al., 2007; Hsiao et al., 2009]’’ (Ex. 164). NIOSH also noted that ‘‘individuals with soft hip and thigh musculature are at increased risk of chest and neck strap interference to the neck and chin area when suspended after a successful arrest of fall’’ (Ex. 164). OSHA agrees with NIOSH that a specific requirement is needed to ensure workers are not injured while using a personal fall arrest system. If employers select personal fall arrest systems that do not fit workers properly or fail to train workers in how to use systems properly, the system may not keep the worker safe within the strap configuration or body harness if a fall occurs, or may injure the worker’s neck and chin area. OSHA does not believe that adding the requirement imposes any new burden on employers, but rather reinforces other requirements with which the employer must comply. Specifically, the general requirements that apply to all PPE, including personal fall arrest systems, require that employers ‘‘[s]elect PPE that properly fits each affected employee’’ (29 CFR 1910.132(d)(1)(iii)). If the personal fall arrest system does not fit properly, the worker may not be protected adequately if a fall occurs. OSHA also notes that applicable training requirements in its PPE standard require employers to train workers in ‘‘[h]ow to properly don, doff, adjust, and wear PPE’’ (29 CFR 1910.132(f)(1)(iii)). Final paragraph (d)(1)(v), proposed as a note to paragraph (d)(1), makes clear that personal fall arrest systems meeting the criteria and protocols set out in appendix D to § 1910.140 will be deemed to be in compliance with the requirements of paragraphs (d)(1)(i) through (iii) when used by a worker who has a combined tool and body weight of less than 310 pounds. Appendix D provides one method that will allow employers to evaluate the ability of the personal fall arrest system to meet the necessary criteria. However, appendix D is restricted to situations in which the total body and tool weight is less than 310 pounds because the test methods were designed for that weight. PO 00000 Frm 00170 Fmt 4701 Sfmt 4700 If a personal fall arrest system needs to support a greater weight, the test methods in appendix D may still be used, provided the employer modifies them to account for the additional weight, such as by using a heavier or lighter test weight to reflect the heavier or lighter weight of the worker. Ellis supported using the 310-pound weight in final paragraph (d) and in the test methods specified by appendix D to § 1910.140 (Ex. 155). System use criteria. Final paragraph (d)(2) establishes criteria for the use of personal fall arrest systems. In paragraph (d)(2)(i), OSHA requires that, for horizontal lifelines that may become vertical lifelines, the device used to connect to the horizontal lifeline must be capable of locking in both directions on the lifeline. OSHA believes this requirement is necessary because a horizontal lifeline could become a vertical lifeline if the support lines on one end of a suspended scaffold or similar work platform fail. In this case, if the rope grab does not lock in both directions on the now vertical lifeline, it could fail to hold, allowing the worker to fall. OSHA drew this requirement from the Powered Platforms standard (§ 1910.66, appendix C, Section (I)(e)(2) and the construction standard (§ 1926.502(d)(7)). OSHA did not receive any comments on the proposed provision and is adopting it without substantive change. Paragraph (d)(2)(ii) requires the personal fall arrest system to be rigged so that a worker cannot free fall more than 6 feet, nor contact a lower level.81 The system strength and deceleration criteria for personal fall arrest systems are based on a maximum free fall distance of 6 feet. OSHA based this provision on the Powered Platforms, construction, and shipyard employment fall protection standards (§§ 1910.66, appendix C, Section (I)(e)(3); 81 In subpart M, Interpretations and Clarifications—Fall Protection, OSHA stated that if the employer has documentation to demonstrate that these maximum arresting forces are not exceeded and that the personal fall arrest system will operate properly, OSHA will not issue a citation for violation of the free fall distance. U.S. manufacturers of fall protection equipment test their equipment in accordance with test procedures prescribed in ANSI standards (ANSI A10.32 and ANSI Z359) which calls for equipment to be tested based on a 6-foot free fall distance. Unless the equipment has been tested for a free fall greater than 6 feet, the results are unknown. Therefore, if an employer must exceed the free fall distance, the employer must be able to document, based on test data, that the forces on the body will not exceed the limits established by the standard, and that the personal fall arrest system will function properly. See interpretation M–3 on OSHA’s Web site: https://www.osha.gov/Publications/Const_Res_Man/ 1926m_interps.html. E:\FR\FM\18NOR7.SGM 18NOR7 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations srobinson on DSK5SPTVN1PROD with RULES6 1915.159(b)(6)(i); 1926.502(d)(16)(iii)). The final rule also is similar to Z359.1– 2007 (Section 7.2) and A10.32–2012 (Section 5.2.1). In the final rule, OSHA added an exception that permits a free fall to be more than 6 feet provided the employer can demonstrate the manufacturer designed the system to allow a free fall of more than 6 feet and tested the system to ensure a maximum arresting force of 1,800 pounds is not exceeded. If the system is not designed for such a purpose, allowing a longer free fall distance could mean the strength and deceleration criteria are not adequate to protect the worker. This added language is consistent with OSHA’s interpretation of 29 CFR part 1926, subpart M.82 OSHA did not receive any comments on the proposed provision and is adopting it as discussed. Body belts. Paragraph (d)(3) of the final rule prohibits employers from using body belts as part of a personal fall arrest systems. The final provision is consistent with A10.32–2012 (Section 1.4.1). OSHA notes that both the construction industry and shipyard employment standards already prohibit the use of body belts as part of personal fall arrest systems (§§ 1915.159; 1926.502(d)). Since 1998, those fall protection standards have prohibited the use of body belts in personal fall arrest systems because, as discussed in the final rule to § 1926.502, workers wearing them have been seriously injured by the impact loads transmitted and by the pressures imposed while suspended after fall arrest. OSHA does not believe that employers will have any difficulty complying with this provision because virtually all personal fall arrest systems manufactured and in use in the United States are equipped with body harnesses, not body belts. ISEA, the only commenter on this provision, supported the ban (Ex. 185) and the Agency adopts the provision as proposed. Paragraph (e)—Positioning Systems Paragraph (e) establishes specific requirements for positioning systems, including window cleaner’s positioning systems. These requirements apply in addition to the general requirements in paragraph (c), which apply to all types of personal fall protection systems. Positioning systems, which sometimes are called ‘‘work-positioning systems,’’ are a type of personal fall protection system. The final rule defines positioning system as a system of 82 See interpretation M–3 on OSHA’s Web site: https://www.osha.gov/Publications/Const_Res_Man/ 1926m_interps.html. VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 equipment and connectors that, when used with its body harness or body belt, allow a worker to be supported on an elevated vertical surface (e.g., wall, window sill, utility pole) and work with both hands free. OSHA received several general comments on the proposed requirements for positioning systems. For example, Ellis recommended that workers who use positioning systems should have additional fall protection (Ex. 155). OSHA notes that workers using positioning systems are attached to two separate anchor points. If one anchor were to fail, the worker would still be protected from falling by the attachment to the other anchor. Weatherguard said, ‘‘If OSHA does not want to promulgate the preciseness that is required to accomplish this, a reference to the I–14 Standard would direct readers to what they need to have for compliance’’ (Ex.168). Regarding Weatherguard’s recommendation, OSHA notes that the Agency drew a number of requirements from I–14.1– 2001, and this preamble explains those provisions so employers know what action is necessary to comply with the final rule. The Tree Care Industry Association (TCIA) expressed concern that workers in their industry would not be allowed to use positioning systems as these systems were defined in the proposed rule (Ex. 174). OSHA notes that the TCIA is commenting on the proposed revision to § 1910.67(c)(2)(v), which permits workers to use positioning systems or personal fall arrest systems when working in aerial lifts. TCIA said: Line clearance tree trimmers and other arborists often work in aerial lifts that are elevated to work positions directly above high voltage wires, trees, buildings and other structures to trim trees. Notably, this work position is not typical for a lineman either building or maintaining some part of an electrical system. There is a unique and unavoidable job hazard intrinsic in the typical work position of the line clearance tree trimmer that is inadequately addressed by OSHA’s current fall protection proposal. To best address this hazard and obtain the greatest protection of affected workers and also to allow for the self-rescue of an aerial lift operator who has fallen, OSHA should allow the use of a body belt and two- to three-foot lanyard. This PPE combination provides for the shortest overall fall distance, and thus provides the greatest protection against fatally dropping into nearby electric wires and secondarily, any other potentially injurious object at a lower level. The short lanyard minimizes free fall, thereby reducing the arresting force in the system. Finally, the attachment at the operator’s waist allows for the possibility of self-rescue. A narrow requirement governing all situations, such as the one OSHA has PO 00000 Frm 00171 Fmt 4701 Sfmt 4700 82663 proposed, does not promote worker safety to the extent that it could or should. It is important for OSHA to preserve the performance-based nature of subpart I requirements and allow the employer to assess the hazards and choose the fall protection that in its estimation will provide the greatest measure of safety in a given situation. The hazard we have illustrated could be addressed with a simple note under 1910.67(c)(2)(v): ‘‘NOTE: If the employer can demonstrate that a greater hazard to the aerial lift operator is created by contact with structures or electrical conductors below the elevated lift, then a body belt and lanyard of up to three feet in length may be employed for fall protection’’ (Ex. 174). Positioning systems, as defined in § 1910.140(b), cannot be used in aerial lifts because the workers are not on a vertical surface such as a wall, but rather on the horizontal surface of the aerial lift bucket. Therefore, OSHA is revising the requirement in § 1910.67(c)(2)(v) to allow workers to use either travel restraint or personal fall arrest systems. OSHA also addressed the issue of fall protection systems for workers performing construction activities in aerial lifts in a memorandum dated August 22, 2011.83 That memorandum established the same policy regarding fall protection for construction workers in aerial lifts as the requirement specified by this final rule for general industry workers in aerial lifts. The applicable portion of that memorandum states: As has been the Agency’s longstanding policy, an employer may comply with OSHA’s fall protection requirements for aerial lifts in one of three ways: 1. Use of a body belt with a tether anchored to the boom or basket (fall restraint system), 2. Use of a body harness with a tether (fall restraint system), or 3. Use of a body harness with a lanyard (fall arrest system). Ellis said that OSHA’s policy provided a more complete answer to the issue of fall protection for workers in aerial lifts, and recommended that OSHA add the language to the final rule (Ex. 155). OSHA does not believe such a revision is necessary because the final rule already makes clear that personal fall arrest systems can only be used with a body harness and that travel restraint systems may use a body harness or body belt. System performance requirements. Final paragraph (e)(1) establishes performance criteria for positioning systems. Paragraph (e)(1)(i), like the proposed rule, requires employers to 83 Available from OSHA’s Web site at: https:// www.osha.gov/pls/oshaweb/owadisp.show_ document?p_table=INTERPRETATIONS&p_ id=27731. E:\FR\FM\18NOR7.SGM 18NOR7 srobinson on DSK5SPTVN1PROD with RULES6 82664 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations ensure that positioning systems, except window cleaner’s positioning systems, are capable of withstanding, without failure, a drop test consisting of a 250pound weight dropped 4 feet. Although the Z359.3–2007 standard requires a 4foot drop test with a 300-pound weight, OSHA is maintaining the 250-pound weight in order to make the final rule consistent with OSHA’s construction industry rule. Many employers use the same personal fall arrest system for performing both general industry and construction activities. If OSHA were to adopt the weight that Z359.3–2007 incorporates, employers may not be able to use the same equipment for both types of activities. OSHA believes this could lead to confusion and noncompliance. OSHA did not receive any comments on the proposed provision and finalizes the provision as proposed. Paragraph (e)(1)(ii)(A) of the final rule, like the proposed rule, requires employers to ensure that window cleaners’ positioning systems are capable of withstanding, without failure, a drop-test consisting of a 6-foot drop of a 250-pound weight. Paragraph (e)(1)(ii)(B) requires that these systems limit the initial fall arresting force on the falling worker to not more than 2,000 pounds, with a duration not exceeding 2 milliseconds, and any subsequent fall arrest forces do not to exceed 1,000 pounds. Window cleaners’ positioning systems have a potential for greater free fall distances. As such, the final rule requires a more rigorous drop test for these systems than for other positioning devices. The rigorous drop test for window cleaners’ positioning systems, combined with the limit on initial arresting forces ensures workers will not be injured if a free fall occurs. The final rule uses the same approach for positioning systems as the shipyard employment standard (29 CFR 1915.160(b)(2)). Final paragraph (e)(1)(iii), proposed as a note, is applicable to paragraphs (e)(1)(i) and (ii) and explains that positioning systems, including window cleaners’ positioning systems, meeting the tests methods and procedures outlined in appendix D to § 1910.140 are considered to be in compliance with these provisions. The proposed rule included two notes and, for simplicity, the final rule combined these notes into one provision in the actual regulatory text. Weatherguard recommended that OSHA reference the I–14.1–2001 standard in the final rule (Ex. 168). The final rule uses provisions from that standard both as a basis for a number of requirements and in the reference section as a resource for further VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 information. There were no other comments and the provisions are finalized as discussed. Paragraph (e)(1)(iv) addresses criteria applicable to lineman’s body belt and pole strap systems. Although positioning equipment used in electric power transmission and distribution work is not to be used as insulation from live parts, when a worker is working near live parts, it is possible that the lineman’s body belt and pole strap systems may come into contact with them. As such, it is important that these systems provide some level of insulation. Paragraphs (e)(1)(iv)(A) through (C) require employers to ensure that a lineman’s body belt and pole strap system be capable of passing dielectric and leakage current tests, as well as a flammability test. The requirements in paragraphs (e)(1)(iv)(A) and (B), like the proposed rule, are consistent with those in §§ 1910.269(g)(2)(iii)(G) and 1926.954(b)(2)(vii). OSHA notes that the voltages listed in these paragraphs are alternating currents. OSHA included these tests in the final rule because the Agency believes that requiring positioning straps to be capable of passing the electrical tests in final paragraphs (e)(1)(iv)(A) and (B) will provide an additional measure of protection to workers, for example, if a conductor or other energized part slips and lands on the strap or if the strap slips from the worker’s hand and lands on an energized part. The requirements of final paragraphs (e)(1)(iv)(A) and (B) are the same as those in revised § 1910.269 (79 FR 20316 (4/11/2014)). Additionally, the tests in the final rule are equivalent to the ones ASTM F887– 12e1 (Section 15.3.1 and Note 2) requires. Paragraph (e)(1)(iv)(C) is a new paragraph that OSHA added to the final rule requiring that lineman’s body belt and pole strap systems meet the flammability test in Table I–7. This test is equivalent to the one in 29 CFR 1926, subpart V. The flammability test in Table I–7 specifies the step-by-step process employers must ensure is followed when lineman’s body belt and pole strap systems are tested. The table also includes the specific criteria the strap must meet to pass the flammability test. OSHA added the flammability test to the final rule because employees working near energized parts must be provided with the same level of protection regardless of whether they are performing general industry or construction activities. OSHA believes lineman’s body belt and pole strap systems already meet these PO 00000 Frm 00172 Fmt 4701 Sfmt 4700 requirements, so the final rule will not impose additional costs and burdens on employers. The proposal contained notes indicating that positioning straps which passed direct current tests at equivalent voltages would be considered to be in compliance with paragraphs (e)(1)(iii)(A) and (B). Because these notes were more in the nature of guidance, OSHA did not carry them forward in the final regulatory text. Nonetheless, this is still a way that employers may demonstrate compliance with the requirements of paragraphs (e)(1)(iii)(A) and (B) of the final rule. System use criteria for window cleaners’ positioning systems. The requirements in paragraph (e)(2) of the final rule, like the proposed rule, contain criteria applicable only to window cleaners’ positioning systems and components (i.e., window cleaners’ belts and window cleaners’ belt anchors). There are no specific requirements for this type of personal fall protection system in existing OSHA standards. Currently, OSHA enforces the general requirement to have fall protection under § 1910.132 (Personal Protective Equipment) as well as under section 5(a)(1) (‘‘general duty clause’’) of the OSH Act (29 U.S.C. 654) while performing window cleaning operations and relies on national consensus standards for criteria that such systems need to meet. OSHA believes that including requirements specific to window cleaners’ positioning systems in this final rule will enhance compliance by clarifying exactly what requirements apply to these systems. OSHA drew the requirements in paragraph (e)(2) from the I–14.1–2001 standard that addresses the design, strength, and installation of window cleaners’ positioning systems. OSHA believes that these criteria, in conjunction with the general requirements in paragraph (c) that are applicable to all personal fall protection systems, provide a reasonable and necessary level of safety for workers using these systems. OSHA believes that window cleaners’ positioning systems and their associated anchors are not used as commonly as they once were. However, since these systems are still used on some buildings, OSHA finds that these minimum requirements are still necessary to ensure workers are protected during window cleaning operations. Final paragraph (e)(2)(i)(A) requires the employer to ensure that window cleaners’ belts are designed and constructed so belt terminals will not pass through the fastenings on the body belt or harness if a terminal comes loose E:\FR\FM\18NOR7.SGM 18NOR7 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations srobinson on DSK5SPTVN1PROD with RULES6 from the window anchor. OSHA believes this requirement is necessary because, if the belt terminal comes loose from the window anchor, the worker will likely fall if the belt is not designed to keep the belt terminals from pulling through the fastenings on the waist belt. There were no comments on the proposed provision and it is finalized with only minor revisions for clarity. Final paragraph (e)(2)(i)(B), like the proposed rule, requires the employer to ensure that window cleaners’ belts be designed and constructed so the length of the runner from the tip of one terminal end to the tip on the other end does not exceed eight feet. This requirement is consistent with I–14.1– 2001 (Section 10.2.9(c)) and OSHA believes it is necessary to limit the length of runners to 8 feet so that workers are not leaning too far back from the window they are cleaning. Leaning too far back may cause the worker to lose balance and become inverted, possibly striking the building and becoming injured. There were no comments on the proposed provision and it is finalized without revision. Final paragraph (e)(2)(ii) requires the employer to ensure that window anchors used for attaching window cleaners’ belts are installed in the side of window frames or mullions at a height not less than 42 inches and not more than 51 inches above the window sill. This requirement is consistent with I–14.1–2001 (Section 10.2.5) and OSHA believes it is widely accepted within the industry. Prior to the I–14.1 standard, the provision was also present in the ANSI/ASME A39.1 standard, which dates back to 1933. There were no comments on the proposed provision and it is finalized with only minor revisions for clarity. Final paragraph (e)(2)(iii) requires that employers ensure window anchors are capable of supporting a minimum load of 6,000 pounds. It is consistent with I–14.1–2001 (Section 10.2.4). The final provision is similar to the proposal but it does not include the proposed requirement that the structures to which window anchors are attached also must support a 6,000-pound minimum load requirement. Weatherguard opposed the proposed requirement, saying: [This requirement was] not consistent with the current codes and standards. The requirement that has been in place for at least the last 60 years is that the anchor be capable of supporting a 6,000-pound load without fracture in the direction that it may be loaded. The structure to which it is attached does not have that requirement (Ex. 168). OSHA agrees with Weatherguard. In order for the anchor to support the VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 minimum 6,000 pound load, so must the structure to which it is attached. Therefore, OSHA removed the language because it is not necessary. Final paragraph (e)(2)(iv) like proposed paragraph (e)(2)(vi), requires employers to ensure that window anchors are not used for any purpose other than attaching window cleaners’ belts. Window anchors are built for the specific purpose of supporting a worker using a window cleaner’s positioning system and OSHA believes they must only be used for their intended purpose. Using the anchors for other purposes may cause deterioration that could result in failure of the anchor when window cleaners then use the anchors. The requirement is consistent with I–14.1–2001 (Section 10.2.1). There were no comments on this provision and it is finalized with only minor editorial revisions for clarity. Final paragraph (e)(2)(v), like the proposed rule, requires employers to ensure window anchors that have damaged or deteriorated fastenings or supports are removed, or the window anchor head is detached so the anchor cannot be used. If damaged or deteriorated anchors are not removed and replaced, the anchor may fail or break when a window cleaner’s positioning system is attached, which could lead to the worker falling and being seriously injured or killed. There were no comments on this provision and it is finalized with editorial revisions for clarity. Final paragraph (e)(2)(vi), like proposed paragraph (e)(2)(iv), requires employers to ensure rope that has wear or deterioration that affects its strength is not used. OSHA believes that deterioration or wear that significantly reduces a rope’s strength may lead to worker death or injury if that rope fails. OSHA realizes that some minimal wear may occur on the sheath of modern kernmantle rope during normal use. That type of wear is expected during the life of the rope, however, if the sheath is so damaged as to expose the core of the rope (which could lead to damage), or other such damage affects the strength of the rope, that rope must be retired and no longer used by workers. There were no comments on this provision and it is finalized with minor editorial revisions for clarity. Final paragraph (e)(2)(vii), like the proposed rule, requires employers to ensure both terminals of the window cleaner’s belt are attached to separate window anchors during any cleaning operation. When the worker is moving into position, entering, or exiting the building or structure before or after cleaning, or traversing to another PO 00000 Frm 00173 Fmt 4701 Sfmt 4700 82665 window, it is not always possible to have both terminals attached to separate window anchors; however, while cleaning the window the terminals must be attached to separate anchors. This requirement is consistent with I–14.1– 2001 (Section 5.3.9). There were no comments on this provision and it is carried forward to the final rule with only minor editorial changes. Final paragraph (e)(2)(viii) requires employers to ensure that no employee works from a window sill or ledge on which there is snow, ice, or any other slippery condition, or one that is weakened or rotted. As in other OSHA requirements (e.g., § 1910.22(a), (b), and (d)) the Agency believes that clean, dry, and firm footing is essential to avoiding slips and falls that may cause injury to workers. This final provision is consistent with I–14.1–2001 (Section 5.3.2). There were no comments on this provision and it is adopted with minor revisions to provide more clarity. Final paragraph (e)(2)(ix) of the final rule prohibits employers from allowing window cleaning work on a window sill or ledge unless: • The sill or ledge is a minimum of 4 inches wide and slopes no more than 15 degrees below horizontal (final paragraph (e)(2)(ix)(A)); or, • The 4-inch minimum width of the sill or ledge is increased 0.4 inches for every degree the sill or ledge slopes beyond 15 degrees, up to a maximum of 30 degrees (final paragraph (e)(2)(ix)(B)). OSHA believes that this requirement presents the minimum sill or ledge width necessary for workers using window cleaners’ positioning systems to safely perform their tasks. This provision is consistent with the A39.1 standard (Section 3.8). No comments were received on this provision and it is adopted with minor revisions for clarity. Final paragraph (e)(2)(x) requires employers to ensure that the worker attaches at least one belt terminal to a window anchor before climbing through the window opening, and keeps at least one terminal attached until completely back inside the window opening. This provision ensures that the worker is securely attached to at least one anchor before going outside the building and being exposed to a fall. This provision has been revised from the proposed rule for clarity and is also consistent with I–14.1–2001 (Section 5.3.8 and 5.3.10). No comments were received on this provision and it is adopted as discussed. Final paragraph (e)(2)(xi), like proposed paragraph (e)(2)(xi)(A), requires that employers ensure workers travel from one window to another by returning inside the window opening E:\FR\FM\18NOR7.SGM 18NOR7 srobinson on DSK5SPTVN1PROD with RULES6 82666 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations and repeating the belt terminal attachment procedures at each window as described in final (e)(2)(x), except as provided in paragraph (e)(2)(xii). OSHA believes that it is safer for workers to return to the inside of the building after cleaning a window and re-exit the building at the next window to be cleaned (when using a window cleaner’s positioning system) in the vast majority of circumstances. In certain circumstances, the Agency allows travel outside the building, which are described in final paragraph (e)(2)(xii). This provision has been revised from the proposed rule for clarity and also is consistent with I–14.1–2001 (Section 5.3.11). OSHA notes that final paragraph (e)(2)(xii), discussed below, allows workers to move from one window to another while outside the building in certain circumstances. OSHA did not receive any comments on the proposed rule and adopts it with editorial clarifications. Final paragraph (e)(2)(xii), similar to proposed paragraph (e)(2)(xi)(B), specifies that employers may allow workers to move from one window to another while outside of the building provided: • At least one window cleaner’s belt terminal is attached to a window anchor at all times (final paragraph (e)(2)(xii)(A)); • The distance between window anchors does not exceed 4 feet horizontally. The distance between window anchors may be up to 6 feet horizontally if the window sill or ledge is at least 1 foot wide and the slope is less than 5 degrees below horizontal (final paragraph (e)(2)(xii)(B)); • The sill or ledge between windows is continuous (final paragraph (e)(2)(xii)(C)); and • The width of the window sill or ledge in front of the mullions is at least six inches wide (final paragraph (e)(2)(xii)(D)). OSHA believes that all of these conditions must be present and requirements must be met to ensure workers are protected from falling when they move from window to window on the outside of the building. These requirements, for example, ensure that workers always have a continuous walking-working surface (i.e., window sill or ledge) when they move from one window to another and the width and angle of that surface is sufficient so workers are able to maintain firm footing while traversing between windows. The final rule is consistent with I–14.1–2001 (Section 5.3.11). Final paragraph (e)(2)(xii) differs from the proposed rule in two respects. First, the final rule deletes the proposed VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 requirement prohibiting workers from moving from one window to another on the outside of the building if a window unit is not ‘‘readily accessible.’’ Final paragraph (e)(2)(xii)(B) more clearly specifies what OSHA intends by window units being readily accessible; therefore, OSHA does not believe the proposed provision is necessary. Second, the final rule reorganizes and restates the proposed requirement so it is easier for employers to understand and follow. OSHA did not receive any comments on the proposed rule and adopts as discussed. Appendices to § 1910.140 (NonMandatory) OSHA added two appendices to § 1910.140 that provide information, guidance, and examples pertaining to the types of personal fall protection systems this section regulates. These appendices are not mandatory; i.e., they do not establish any additional obligations, nor impose or detract from any obligations, in § 1910.140. Appendix C provides information and guidance concerning the use of personal fall protection systems. The information includes considerations for planning, selection of personal fall protection systems, worker training, and maintenance and inspection of personal fall protection systems. Appendix D provides test methods for personal fall arrest and positioning systems. OSHA drew the appendices from the OSHA construction fall protection standards (29 CFR part 1926, subpart M), which the Agency issued in 1994. OSHA based the appendices in the construction fall protection standards on national consensus standards. In addition, experts on OSHA’s construction staff, including engineers, assisted in developing the guidance and test methods in the appendices. OSHA revised the proposed appendices for several reasons. First, some of the language and terms in the proposed appendices were geared to the construction industry. For example, the proposed appendices used ‘‘rebar hooks,’’ which are not used in general industry. OSHA revised the appendices to incorporate language and terms that are familiar to general industry employers and workers and are used in the regulatory text of § 1910.140. Second, OSHA updated the proposed appendices with information that has become available since OSHA published the construction fall protection standard. For example, Appendix C includes information about the danger of orthostatic intolerance due to prolonged suspension in a personal fall protection system. PO 00000 Frm 00174 Fmt 4701 Sfmt 4700 Third, OSHA also made changes to the proposed appendices to incorporate recommendations commenters suggested. Those additions are discussed below. Fourth, OSHA reorganized some of the sections of Appendix C so they follow the same order as the regulatory text of § 1910.140. The Agency believes this reorganization will help employers locate more quickly the information they need to comply with the final rule. Finally, OSHA made revisions to the appendices to comply with the goals of the Plain Writing Act of 2010 (PWA) (Pub. L. 111–274, enacted January 5, 2010). It was only after OSHA published the proposed rule and appendices that the requirements of the PWA applied to the Agency. The PWA requires that OSHA use plain writing in every ‘‘covered document’’ of the Agency that it issues or substantially revises (Pub. L. 111–274, sec. 4(b)). The PWA defines covered documents as ‘‘any document that explains to the public how to comply with a requirement that the Federal Government administers or enforces’’ (Pub. L. 111–274, sec. 3(2)(iii)). Since the purpose of these non-mandatory appendices is to help employers comply with the new rule, they meet the PWA’s definition of ‘‘covered documents.’’ OSHA believes the revisions to the proposed appendices will make them easier to understand and use, thereby increasing compliance with the final rule. Appendix C to Subpart I of Part 1910— Personal Fall Protection Systems NonMandatory Guidelines OSHA requested comment on whether any of the provisions in appendix C should be included in the regulatory text of § 1910.140, and whether the appendices should include other information. NIOSH recommended that OSHA consider adding the following information to appendix C regarding harness sizes: ‘‘The employer should ensure sufficient body harness sizes and configurations to accommodate diverse body sizes and shapes in the workforce.’’ NIOSH added: There have been significant changes in body dimensions among the U.S. civilian population over the last several decades. The diverse workforce in the construction workforce by gender and ethnicity showed a greater variation in range of body dimensions and shapes compared to that in the 1970s and 1980s [citations omitted]. The modern full body harness has evolved to become a more comfortable, easy-to-use body support system that offers a high level of security for a variety of work tasks at height [citations omitted]. Sufficient body harness sizes and configurations to accommodate diverse body E:\FR\FM\18NOR7.SGM 18NOR7 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations sizes and shapes in the workforce are a critical step to reduce the risk of injury that results from poor user fit and improper size selection. The overall combination of a worker’s body dimensions governs the best fit body harness size; body weight and stature alone do not define the best fit (Ex. 164). OSHA agrees with NIOSH’s suggestion and added information to Appendix C recommending that employers consider a broader anthropometric range when selecting personal fall protection systems, including harnesses. Many commenters from the outdoor advertising industry (Exs. 75; 80; 81; 82; 87; 90; 92; 102; 104; 119; 120; 143) opposed including a list of ‘‘approved equipment’’ in Appendix C because employers should be able to use newer or improved safety devices as they become available rather than waiting for devices to be approved in a ‘‘lengthy bureaucratic process.’’ For example, Chris McGinty said: [T]here is some consideration of the creation of a ‘‘list’’ of approved equipment. I suggest that this would be an error due to the reality of a safety products industry that is constantly designing, testing and introducing improved or enhanced safety devices. . . . By trying to control the exact brands and models allowable, such a program would invariably be months behind technology and might indirectly lead to losses (Ex. 143). Appendices C and D do not include a list of approved equipment, systems, components, or devices. In 1999, the Agency reiterated its long held position regarding equipment approval: srobinson on DSK5SPTVN1PROD with RULES6 OSHA does not approve, endorse, or recommend any particular manufactured product because the manufacturer cannot ensure how the product will be used. The final determination of compliance with OSHA’s standards must take into account all factors pertaining to the use of such product at a particular worksite with respect to employee safety and health. This must include an evaluation, through direct observation, or employee work practices and all conditions in the workplace. Therefore, under the Occupational Safety and Health Act of 1970, only the employer is responsible for compliance with the Act and for the safe use of any product by their employees (letter to Ron Oxentenko from Richard Fairfax, Directorate of Compliance Programs, September 17, 1999).84 The final rule lists the requirements that employers are responsible for ensuring their personal fall protection systems meet. Appendices C and D both provide guidance that employers may use in evaluating whether the personal fall protection system they are 84 Available on OSHA’s website at: https:// www.osha.gov/pls/oshaweb/owadisp.show_ document?p_table=INTERPRETATIONS&p_ id=22784. VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 considering will meet the requirements in the final rule. Regarding paragraph (h) of appendix C, ITA expressed concern about mentioning self-rescue equipment (e.g., equipment with descent capability). ITA was concerned that referring to such equipment would emphasize employee rescue in the design of PPE when, for example, PPE used on powered industrial truck platforms does not currently include self-rescue equipment. ITA believes any mention of self-rescue equipment in Appendix C would have a significant impact in the market, and cautioned OSHA to ensure that such an impact would not occur (Ex. 145). OSHA does not agree that mentioning self-rescue equipment will cause a significant impact on the market. This equipment has been marketed and readily available for a number of years. OSHA’s Powered Platforms standard, issued in 1989, requires that employers provide for prompt rescue or ‘‘shall assure the self-rescue capability of employees’’ (§ 1910.66, appendix C, Section I(e)(8)). The construction (1994) and shipyard employment (1996) standards contain the same requirement (§§ 1926.502(d)(20); 1915.159(c)(7)). In 2000, OSHA responded to an inquiry from Mr. Charles Hill with Southwestern Bell Telephone Company, chair of the National Telecommunications Safety Panel, about whether employers must provide self-rescue equipment when working in bucket trucks and aerial lifts. In 2004, OSHA published a Safety and Health Information Bulletin on Suspension Trauma/Orthostatic Intolerance (SHIB 3–24–2004, updated 2011) that identified self-rescue equipment. The proposed rule also discussed self-rescue equipment for personal fall protection systems (75 FR 28910). OSHA believes that employers, including members of ITA, are aware of self-rescue equipment and likely have been aware of such equipment for some time. In the past decade, OSHA has not seen any data suggesting that employer awareness of self-rescue equipment has resulted in an adverse impact on the market, nor did ITA provide such data in its comment. Therefore, OSHA does not believe there is likely to be an adverse impact now. ITA also requested OSHA ‘‘clarify the circumstances when [self-rescue equipment is] deemed to be necessary’’ (Ex. 145). OSHA stresses that neither the final rule nor the appendices require that employers provide self-rescue equipment. Rather, the final rule requires that employers provide for ‘‘prompt rescue’’ of workers in the event of a fall. To ensure rescue is prompt, PO 00000 Frm 00175 Fmt 4701 Sfmt 4700 82667 employers may use self-rescue equipment, but they also may provide prompt rescue through other means (see detailed discussion of ‘‘prompt’’ rescue in the explanation of § 1910.140(c)(21) above). With regard to paragraph (i) of Appendix C on ‘‘Tie-off considerations’’, Ellis suggested that OSHA ‘‘point out the drastic consequences of allowing a SRL [selfretracting lifeline or lanyard] cable or web that passes over almost any edge except wood will break unless there is an energy absorber at the hook end’’ (Ex. 155). OSHA agrees that the potential for breakage is greater in the circumstance Ellis describes and believes the language of paragraph (i)(2) of appendix C adequately addresses his concern. OSHA believes that system manufacturers also include such a warning in their instructions and recommendations. Regarding paragraph (j) of appendix C, Verallia commented that recommending use of ‘‘extreme care’’ for horizontal lifelines is ‘‘too subjective and vague’’ to be consistently applied or enforced, and that OSHA should clarify or remove the language. OSHA disagrees with this comment. The paragraph on horizontal lifelines says employers should use extreme care in doing a specific task, using multiple tie-offs in horizontal lifelines. The paragraph then explains specifically why employers need to use extreme care (i.e., the movement of one employee falling from a horizontal lifeline may cause other employees to fall). OSHA also explains what employers should do to minimize the hazard. Finally, because of the hazards associated with horizontal lifelines, OSHA explains that qualified persons must design, install, and supervise the use of personal fall protection systems that use horizontal lifelines (§ 1910.140(c)(11)(i)). OSHA believes the appendix and standard are clear, and that employers will be able to understand and comply with the requirements on horizontal lifelines in § 1910.140(c)(11). In addressing paragraph (n) of appendix C, Verallia asserted that the statement in this paragraph notifying employers that they should ‘‘be aware’’ that a personal fall protection system’s maximum fall arrest force is evaluated under normal use conditions is too vague, and recommended that this statement be clarified if an employer is going to be potentially subject to enforcement for lack of awareness. OSHA does not agree with Verallia’s comment. Not only does paragraph (n) indicate that employers need to understand that testing personal fall E:\FR\FM\18NOR7.SGM 18NOR7 82668 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations protection systems is to be performed under normal conditions, but appendix C also reminds employers of this testing requirement. OSHA believes the multiple references to testing personal fall protection systems under normal use conditions are clear and understandable. OSHA also notes that the appendices to § 1910.140 are not mandatory. Appendix D to Subpart I—Test Methods and Procedures for Personal Fall Protection Systems Non-Mandatory Guidelines OSHA asked for comment on test methods in appendix D, and whether the Agency should include any test methods in the regulatory text of § 1910.140 or test methods and procedures in Appendix D, and whether any of the test methods need updating. Ameren recommended that OSHA delete the test methods in appendix D because product testing rests with the manufacturer instead of the end user. Ameren also said that that if OSHA believes it is necessary for employers to test their personal fall arrest systems, appendix D should add an option allowing employers to test systems ‘‘per manufacturer’s instructions’’ (Ex. 189). Ameren explained: srobinson on DSK5SPTVN1PROD with RULES6 Testing of fall protection lies more with the manufacturer of the equipment and less with the end user, whereas the inspection and checking of the equipment lies with the user. As long as a manufacturer is required to meet certain standards prior to selling their products, there should be no need for post purchase testing, hence no requirement for detailed, outlined testing instructions for the employer (Ex. 189). OSHA does not agree with Ameren’s recommendation for several reasons. First, although the final rule does not require that employers personally test the personal fall protection systems they use, some employers conduct their own tests to ensure that systems and equipment meet the requirements of OSHA standards. Appendix D gives those employers the information and flexibility they need to conduct tests on personal fall protection systems. Second, the final rule and appendices do not require employers to test personal fall protection systems. Employers are free to select personal fall protection systems that manufacturers have tested rather than testing them themselves. However, employers are ultimately responsible for ensuring that the systems they provide to their workers meet the requirements of § 1910.140. Manufacturer instructions and specifications often will explain that equipment or systems have been tested and meet the requirements of an VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 OSHA or national consensus standard. However, when the manufacturer has not tested the system according to appendix D or other recognized test methods, or does not affirm that the system meets the requirements of § 1910.140, then employers cannot use the system without verifying independently that it meets the requirements of § 1910.140. Using such a system without verifying its safety puts workers at risk of harm. Finally, OSHA stresses that appendix D and the test methods in it are not mandatory. Employers are free to use personal fall protection systems that have been tested using other methods, provided those test methods ensure the systems meet the requirements in § 1910.140. Penta Engineering Group, Inc. recommended that OSHA add several test methods in appendix D: ANSI/IWCA 1–14.1–2001 requires testing anchors by applying a minimum static load of twice the design load in each (primary) direction that the load might be applied and that this outlines a good generic method adequate for load testing tie-back safety anchors at most buildings. Also included in the ANSI/IWCA I–14.1–2001 is that any testing procedure should be developed and performed under the direction of a registered professional engineer. This language should also be part of the proposed rule (Ex. 193.) OSHA does not believe it is necessary to add test methods in I–14.1 to appendix D. The test methods in appendix D are not mandatory, and personal fall protection systems can be tested using other recognized tests, such as those tests specified in national consensus standards such as I–14.1, provided those test procedures ensure that the systems meet the requirements in § 1910.140. OSHA also does not believe it is necessary to include in the final rule or in Appendix D Penta’s recommendation that tests methods be developed and performed under the direction of a registered professional engineer. The test methods in appendix D were developed by experts, including engineers. OSHA believes that testing organizations and manufacturers also test systems under the supervision of experts and qualified persons, which likely include engineers. SPRAT offered another suggestion regarding test methods. They recommended that OSHA accept markings on equipment as meeting the ANSI Z359 family of standards. They said this would help to ensure test methods and equipment are consistent with and meet current national consensus standards. OSHA does not agree. The Agency does not have the resources to ensure all PO 00000 Frm 00176 Fmt 4701 Sfmt 4700 manufacturers accurately mark their products. As noted in the final rule and appendices, employers and manufacturers are not required to use the test methods in appendix D. They are free to test personal fall protection systems using other recognized test methods and procedures, including those specified by ANSI and other national consensus standards, provided those test methods ensure that the systems meet the requirements in § 1910.140. Verallia recommended adding a requirement to paragraph (b)(2) of appendix D requiring that each employee visually inspect anchorage points prior to use (Ex. 171). OSHA does not believe that Verallia’s recommendation is appropriate for appendix D. Appendix D addresses methods employers and manufacturers may use for testing personal fall protection systems to ensure they meet the requirements in § 1910.140 prior to the purchase and use of the systems. Verallia’s recommendation applies to use of personal fall protection systems after the systems are in use in the workplace. However, OSHA notes that paragraph (c)(18) of the final rule addresses Verallia’s recommendation by requiring that the employer ensure the entire personal fall protection system, which the final rule defines to include the anchorage, be inspected before initial use in each workshift. In addition, OSHA added language to Appendix C mentioning this requirement, and included anchorages as one of the examples. C. Other Revisions to 29 CFR Part 1910 The final rule also includes changes to provisions in subparts F, N, and R of 29 CFR part 1910. Primarily, the changes are technical in nature and are necessary so all sections in part 1910 conform to final subparts D and I. Most of the changes in subparts F, N, and R update references to final subparts D and I. For example, existing § 1910.265(f)(6)—Sawmills, requires that ladders comply with existing § 1910.27 (Fixed ladders). However, the final rule reorganizes subpart D and the ladder requirements are no longer in § 1910.27. Instead, requirements applicable to ladders are contained in other sections of final subpart D (i.e., §§ 1910.22, 1910.23, 1910.28, 1910.29). To ensure that employers comply with all of the applicable general industry ladder requirements, the final rule revises § 1910.265(f)(6) to specify that ladders must comply with 29 CFR part 1910, subpart D. Some changes in subparts F, N, and R replace existing references with E:\FR\FM\18NOR7.SGM 18NOR7 srobinson on DSK5SPTVN1PROD with RULES6 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations references to final subparts D and I. For instance, existing § 1910.66—Powered platforms for building maintenance, specifies that employers provide personal fall arrest systems that comply with Appendix C of that section (existing paragraph (f)(5)(ii)(L)). Appendix C established provisions for the use of personal fall arrest systems because, at the time OSHA promulgated § 1910.66, the general industry fall protection requirements did not allow employers to use personal fall arrest systems, as defined in final §§ 1910.21(b) and 1910.140(b). Final subpart D adds provisions allowing employers to use personal fall arrest systems, and final subpart I establishes performance, use, and care criteria for those systems. In conjunction with those revisions to subparts D and I, OSHA revises § 1910.66 to specify that employers comply with the requirements in final subpart I instead of those in appendix C. With the addition of the personal fall arrest system provisions to final subpart I, § 1910.66 Appendix C is no longer necessary; accordingly, the final rule deletes it. Similarly, in final § 1910.269(c)(2)(i) OSHA replaces references to personal fall arrest system provisions in 29 CFR part 1926, subpart M—Fall Protection, with citations to the personal fall protection requirements in final subpart I. Finally, the final rule revises subpart F (§ 1910.67(c)(2)(v)) to require that employees wear either a personal fall arrest system or travel restraint system that complies with final subpart I when they are working from an aerial lift. Existing § 1910.67(c)(2)(v) allows employees to wear a body belt and lanyard for fall protection in aerial lifts while the proposed rule would have required that aerial lift operators use a ‘‘positioning system’’ or personal fall arrest system. Neither the existing nor proposed rules are consistent with OSHA general industry (§§ 1910.140 and 1910.269) and construction standards (§§ 1926.453, 1926.502, and 1926.954). To resolve this discrepancy, in final § 1910.67(c)(2)(v) OSHA revises the existing and proposed rules in two ways. First, final § 1910.67(c)(2)(v) eliminates the existing requirement, which specifies that employees use body belts and lanyards for fall protection when working from aerial lifts, because it is not consistent with final subpart I (final § 1910.140(d)(3)). Final subpart I, like the construction fall protection standard (§ 1926.502(d)), prohibits the use of body belts as part of a personal fall arrest system. OSHA VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 has determined, as the Agency did in the construction fall protection rulemaking (59 FR 40672 (8/9/1994)), that body belts must be prohibited because they do not afford a level of protection equivalent to body harnesses and present unacceptable risks in fall arrest situations. Specifically, as OSHA discussed in the explanation of § 1910.140, fall arrest forces are more concentrated for a body belt than a body harness, therefore, the risk of injury in a fall is much greater when workers use a body belt. In addition, in a fall, workers are more likely to slip out of a body belt than a body harness and be killed or seriously injured. Moreover, if a fall occurs, the hazards associated with prolonged suspension in a body belt are substantially more severe than suspension trauma associated with body harnesses. (Also see discussion of the prohibition of body belts in the preamble revising the general industry and construction Electric Power Generation, Transmission, and Distribution and Electric Protective Equipment standards (hereafter referred to as ‘‘subpart V’’) (79 FR 20316, 20383– 88 (4/11/2014)). To make final § 1910.67(c)(2)(v) consistent with final subpart I, OSHA replaces the existing provision with the requirement that workers use a personal fall arrest system or travel restraint system that meets the requirements of final subpart I when working from an aerial lift. This revision also makes final § 1910.67 consistent with the construction aerial lift (§ 1926.453(b)(2)(v) note 1) and fall protection standards (§ 1926.502(d)) as well as subpart V (§§ 1910.269(g)(2)(iv)(C)(1) and 1926.954(b)(3)(iii)(A) (79 FR 20640, 20700)).85 OSHA notes that final subpart I (final § 1910.140(b) and (d)(3)), like the construction aerial lift and fall protection standards, allows the use of body belts with a travel restraint system when employees work from an aerial lift (See also letter to Mr. Jessie L. Simmons (5/11/2001) 86). OSHA allows the use of a body belt with a travel restraint system because the system ‘‘prevents a worker from being exposed to any fall’’ (Letter to Mr. Charles E. Hill (8/14/2000)). To ensure that employees using travel 85 Since final § 1910.67(c)(2)(v) and § 1910.269(g)(2)(iv)(C)(1) are consistent, OSHA is eliminating the sentence in § 1910.269(g)(2)(iv)(C)(1) stating that final § 1910.67(c)(2)(v) does not apply. OSHA believes the sentence is not necessary and deleting it eliminates any potential for confusion. 86 Letter available on OSHA’s Web site at: https:// www.osha.gov/pls/oshaweb/owadisp.show_ document?p_table=INTERPRETATIONS&p_ id=24360. PO 00000 Frm 00177 Fmt 4701 Sfmt 4700 82669 restraint systems in aerial lifts are protected, the employer must ensure the lanyard and anchor are arranged so workers are not potentially exposed to falling any distance. Second, final § 1910.67(c)(2)(v) revises the proposed rule to require that employees must use a personal fall arrest system or travel restraint system when working in an aerial lift. The proposed rule specified, mistakenly so, that employees use a personal fall arrest system or ‘‘positioning system’’ for fall protection when they work from an aerial lifts. In actuality, OSHA does not permit employees to use positioning systems when working from an aerial lift (Letters to Mr. Jessie L. Simmons (5/ 11/2001) and Mr. Charles E. Hill (8/14/ 2000)). A positioning system is defined in the proposed and final rules as a system that support employees on an elevated ‘‘vertical’’ surface, such as a wall or window sill (final §§ 1910.21(b) and 1910.140(b)). However, employees working from aerial lifts are on horizontal surfaces. Positioning systems are ‘‘designed specifically to stop a worker from falling from a static, headup position’’ (Letter to Mr. Jessie L. Simmons (5/11/2001)); however, falls from a horizontal surface, such as an aerial lift, can begin with the worker in other than a static, head-up position (Letter to Mr. Jessie L. Simmons (5/11/ 2001); also see, 79 FR 20384). The final rule corrects the proposed rule and, in so doing, makes final § 1910.67(c)(2)(v) consistent with subpart V (§§ 1910.269(g)(2)(iv)(C)(1) and 1926.954(b)(3)(iii)(A) (79 FR 20640, 20700)).87 OSHA received several comments on the proposed revision of § 1910.67(c)(2)(v) (Exs. 59; 174; 183; 207). Darren Maddox, with Central Alabama Electric Coop (CAEC), supported requiring the use of personal fall arrest systems when employees work from aerial lifts (Ex. 59). He pointed out positioning straps do not provide fall protection, and that CAEC’s employees now use personal fall arrest systems when working in aerial lifts (Ex. 59). Edison Electric Institute, on the other hand, said OSHA should not require fall protection for employees working in bucket trucks (Ex. 207). The Utility Line Clearance Coalition (ULCC) and Tree Care Industry Association (TCIA) both recommended 87 Stakeholders commenting to the proposed rule appeared to recognize that OSHA’s reference to positioning systems might be an error (Exs. 174; 183). For example, ULCC pointed out that the proposed definition of positioning systems does not appear to be applicable to line clearance work from aerial lifts because employees are not working on an elevated vertical surface (Ex. 83). E:\FR\FM\18NOR7.SGM 18NOR7 82670 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations srobinson on DSK5SPTVN1PROD with RULES6 that OSHA allow employers to use body belts and short lanyards (3-foot maximum length) when their employees work from aerial lifts (Exs. 174; 183). TCIA contended that arborists and lineclearance tree trimmers (collectively referred to as ‘‘line-clearance arborists’’) often work in aerial lifts above high voltage wires and using body belts and lanyards provides the ‘‘greatest protection’’ against falling into energized power lines (Ex. 174). In addition, they said using a body belt with a short lanyard (i.e., 3 feet) 88 ‘‘provides for the shortest overall fall distance,’’ which reduces free fall distances, and thus, fall arrest forces, as well as minimizing the risk of falling into power lines (Ex. 174). TCIA also said that body belts attached at the waist allow for ‘‘the possibility of self-rescue,’’ but did not provide further explanation (Ex. 174). ULCC raised similar arguments supporting the use of body belts and lanyards when line-clearance arborists work from aerial lifts, particularly above power lines. They contended that using belts and lanyards in those situations has not resulted in undue risk to employees and requiring that employees use body harnesses, which typically have longer lanyards, would increase the risk of contact with power lines (Ex. 183). ULCC also argued that using body harnesses puts line-clearance arborists at greater risk of injury from falling into tree limbs and stubs from ‘‘reduction cuts’’ (Ex. 183). In addition, they contended line-clearance arborists feeding limbs and brush into chippers are a greater risk of serious injury or death because longer lanyards typically used with body harness could get dragged into the chipper. ULCC also argued that the proposed rule does not provide an explanation for eliminating the use of body belts and lanyards when working from aerial lifts and fails to provide fall protection options for line-clearance work performed from aerial lifts. TCIA and ULCC raised these same issues and arguments in the subpart V rulemaking and OSHA addressed them in great detail in the preamble to that final rule (79 FR 20383–88). OSHA did not find TCIA’s and ULCC’s arguments in the subpart V rulemaking to be convincing and nothing in their 88 OSHA notes that final § 1910.140(e)(1)(i)(B) requires that positioning systems must be rigged to prevent the worker from free falling more than 2 feet. Therefore, TCIA’s recommendation that lineclearance arborists be allowed to use 3-foot lanyards is not permitted under the final rule. OSHA also notes that as of April 1, 2015, § 1926.954(b)(3)(iv) requires that work-positioning systems be rigged so workers cannot free fall more than 2 feet. VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 comments in this rulemaking changes OSHA’s conclusion. Since TCIA’s and ULCC’s comments in this rulemaking are the same as those they made in the subpart V rulemaking, OSHA incorporates by reference the explanation OSHA provided in final subpart V and need not repeat that full discussion here. For the following reasons, consistent with final subpart V, OSHA has not adopted TCIA’s and ULCC’s recommendation that employers be permitted to use body belts and lanyards when their employees work from aerial lifts. First, OSHA does not find persuasive TCIA’s and ULCC’s argument that body harnesses (e.g., personal fall arrest systems) pose a greater hazard (e.g., falling into an energized power line) than body belts and lanyards when employees, including line-clearance arborists, work from aerial lifts. As mentioned in the explanation of § 1910.140(d)(3) and closely examined in the construction fall protection rulemaking (59 FR 40702–03), body belts do not provide the level of protection that full body harnesses do. Body belts, unlike harnesses, expose workers to greater fall arrest forces and suspension trauma and significant hazards of slipping out of the body belt. In addition, TCIA’s recommendation that OSHA allow employers to use body belts with 3-foot lanyards, instead of the required 2-foot lanyard, would expose workers to even greater fall arrest forces. In addition, ULCC’s admission that some member employers ‘‘mandate full body harnesses and lanyards’’ undercuts their argument that using body harnesses, instead of body belts, exposes workers to ‘‘significantly increased risk, especially when working above energized power lines’’ from an aerial lift (Ex. 183). Second, TCIA’s and ULCC’s unsupported claim that body belts allow workers to self-rescue is not correct. To the contrary, body belts significantly reduce the possibility of self-rescue after a fall because of the increased probability of serious internal injuries sustained from the initial impact forces, from body belt suspension trauma (especially unconscious suspension), or both. Third, as discussed in detail in the preamble to final subpart V, OSHA does not consider the risk of falling into power lines to be as serious as TCIA and ULCC portray. Line-clearance arborists do not always work directly over power lines; they may work at the same height, below or to the side of power lines. In any event, stakeholders in the subpart V rulemaking said employers can reduce the risk of falling into power lines, PO 00000 Frm 00178 Fmt 4701 Sfmt 4700 without exposing workers to greater arrest forces and suspension trauma, by using personal fall arrest systems that have shorter lanyards (79 FR 20385). Fourth, ULCC’s argument that using body harnesses with longer harnesses puts line-clearance arborists at risk of getting caught in a chipper is unpersuasive. The final rule does not require that line-clearance arborists wear harness when they are not working on an elevated surface (i.e., when working on the ground). Therefore, employers can eliminate that risk by requiring that line-clearance arborists remove their harnesses when using the chipper. Employers also can reduce the risk by providing line-clearance arborists with harnesses that have a shorter lanyard. Fifth, final § 1910.67(c)(2)(v), like subpart V (§ 1910.269(g)(2)(iv)(C)(1) and § 1926.954(b)(3)(iii)(A) (79 FR 20640, 20700)) provides employers with two options for protecting employees working in aerial lifts. They may use either a personal fall arrest system or travel restraint system. As mentioned, employers can use personal fall arrest systems that have a short lanyard. Also, since travel restraint systems must prevent a fall of any distance, the final rule allows employers to use either a body belt or body harness with travel restraint systems. OSHA notes, however, that a travel restraint system rigged to allow free fall even a small distance (e.g., 2 feet) would not be an acceptable system under the final rule. For further discussion of the requirement that employers ensure employees use a personal fall arrest system or travel restraint system when working from an aerial lift, see preamble to final subpart V (79 FR 20383–88). V. Final Economic and Final Regulatory Flexibility Screening Analysis A. Introduction This collection of final standards governing occupational exposure to slip, trip, falling-object and fall hazards on walking and working surfaces is a ‘‘significant regulatory action’’ under Executive Order 12866. Accordingly, the Office of Regulatory Analysis within OSHA prepared this Final Economic and Final Regulatory Flexibility Screening Analysis (FEA) for the final standard. In developing the FEA, OSHA, to the extent possible given the available resources, endeavored to meet the requirements of OMB’s Circular A–4 (OMB, 2003), a guidance document for regulatory agencies preparing economic analyses under Executive Order 12866. In addition to adherence to Executive E:\FR\FM\18NOR7.SGM 18NOR7 srobinson on DSK5SPTVN1PROD with RULES6 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations Order 12866, OSHA developed this final rule with attention to the approaches to rulemaking outlined in Executive Order 13563. This FEA addresses issues related to the costs, benefits, technological and economic feasibility, and economic impacts (including small business impacts) of the Agency’s final revisions to subpart D, Walking-Working Surfaces, and subpart I, Personal Protective Equipment. OSHA’s final feasibility and impact analysis builds upon the preliminary economic analysis that OSHA developed in support of the proposed standard and the record developed in this rulemaking. The analysis also evaluates regulatory alternatives to the final rule. The Office of Information and Regulatory Affairs in the Office of Management and Budget reviewed this rule as required by Executive Order 12866. Terminology, analytic methods, and standards appearing in a particular section of this FEA correspond to the source(s) of that section’s requirements; for example, the legal concept of ‘‘economic feasibility,’’ which is a key subject of section V.G, is not recognized in E.O.s 12866 or 13563 or their associated guidance document, OMB Circular A–4. OSHA uses legal concepts, appropriate under the OSH Act and associated case law but distinct from any concepts in Circular A–4, in discussing economic feasibility (see Section III—Pertinent Legal Authority). Furthermore, OSHA discusses how benefit and cost estimates may differ given the differing analytic approaches set forth by the OSH Act, as interpreted in case law, and Circular A–4. The purpose of the FEA is to: • Identify the establishments and industries potentially affected by the final rule; • Estimate current exposures to slip, trip, and fall hazards in general industry, and assess the technologically feasible methods of controlling these exposures; • Estimate the benefits of the rule in terms of the number of worker deaths and injuries that employers will prevent by coming into compliance with the standard; • Evaluate the costs that establishments in the regulated community will incur to achieve compliance with the rule; • Assess the economic impacts and the economic feasibility of the rule for affected industries; and • Evaluate the principal regulatory alternatives to the final rule that OSHA considered. The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires that a final regulatory flexibility analysis (FRFA) be VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 prepared if an agency determines that a rule will impose a significant economic impact on a substantial number of small entities. To determine the need for a FRFA, OSHA voluntarily prepared a final regulatory flexibility screening analysis that identifies and estimates the impacts of the final standard on small businesses. Based on the screening analysis, presented in the last section of this FEA, the Assistant Secretary certifies that the final rule will not have a significant economic impact on a substantial number of small entities. This FEA contains the following sections in addition to this Introduction: • Assessing the Need for Regulation • Industry Profile • Benefits, Net Benefits, Cost Effectiveness, and Sensitivity Analysis • Technological Feasibility • Costs of Compliance • Economic Impacts • Final Regulatory Flexibility Screening Analysis To develop the FEA, OSHA relied considerably on (1) the record created throughout the history of this rulemaking, (2) an analysis by OSHA’s contractor, Eastern Research Group (ERG) (ERG, 2007), and (3) OSHA’s Preliminary Economic Analysis (PEA) supporting the Walking-Working Surfaces NPRM and published in the Federal Register notice announcing the proposed standard (OSHA, 2010). 1. Reasons for Agency Action Earlier in this preamble OSHA discussed the major revisions to the existing standards for walking-working surfaces and personal protective equipment (subparts D and I of part 1910) finalized by this rulemaking. OSHA designed the final standards to prevent a significant number of slips, trips, and falls that result in injuries and fatalities in general industry, including falls from ladders, roofs, scaffolds, and stairs. The final standard also addresses hazards associated with falling objects. However, as noted below in Section D. Benefits, Net Benefits, Cost Effectiveness, and Sensitivity Analysis, and Section F. Costs of Compliance, because the final standard introduces no additional burden on employers beyond existing requirements, and because there were no comments in the record suggesting that additional economic impacts would result, OSHA expects that the final falling-object provisions will involve no new costs or benefits. Some examples from OSHA’s inspection database (OSHA, 2012a and 2007), provided in the following paragraphs, best illustrate the kinds of PO 00000 Frm 00179 Fmt 4701 Sfmt 4700 82671 accidents the standards will prevent, and how the revised standards will prevent them. A repairperson for a specialty metals producer in Pennsylvania was replacing a water cooling panel (approximately 8-ft. high by 12-ft. long) on a basic oxygen furnace vessel. To access the panel, he placed a ladder on an 8-in. diameter pipe. When the employee attempted either to gain access to the panel or to secure the ladder, he fell 22 feet to the ground. He sustained a bluntforce trauma injury to his head and died. OSHA cited and fined the employer for a violation of § 1910.23(c)(1), Protection of open-sided floors, platforms, and runways, and § 1910.25(d)(2)(i), Use of ladders, along with other standards. OSHA believes that the clarifications of the requirements for the safe use of ladders and the duty to have fall protection will prevent accidents such as the one described above (OSHA, 2007, Inspection No. 123317679). In a window cleaning operation, two employees were working from boatswain’s chairs suspended from a roof by two transportable roof rollers; they lowered their chairs down the side of the building using controlled-descent devices. A third employee was on the roof pushing the rollers back and forth to move his coworkers from window to window. The third employee was moving the roller on one end of the building when one of its wheels slipped off the edge of the parapet wall, causing the rollers, which were tied together, to fall between six and seven stories to the ground. The first two employees, with their lifelines attached only to the suspension point on the rollers, also fell to the ground and sustained serious injuries. When one of the rollers went over the edge, it catapulted the third employee off the roof; that employee fell approximately 84 feet to the ground and died from the fall. In the investigation, OSHA determined that the employer did not anchor the rollers to the roof, and cited the employer for violating the general duty clause (Section 5(a)(1)) of the OSH Act. OSHA believes that compliance with the requirements for rope descent systems in the final standard (§ 1910.27(b)) will help to prevent this type of accident (OSHA, 2007, Inspection No. 303207633). A 49-year-old service technician fractured five vertebrae and eventually died from the injuries received when he fell 11 feet from a fixed ladder to a concrete landing while performing airconditioning service work on the roof of a shopping mall. OSHA’s investigation of the August 24, 2004, accident identified the likely cause as the E:\FR\FM\18NOR7.SGM 18NOR7 srobinson on DSK5SPTVN1PROD with RULES6 82672 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations absence of uniform spacing between the ladder rungs throughout the climb (the space between the top two rungs/steps was 28 inches, whereas the space between lower rungs was much narrower). Section 1910.23(b)(2) in the final standard requires that, with a few exceptions, the spacing for rungs, cleats, and steps of ladders be not less than 10 inches (25 cm) apart nor more than 14 inches (36 cm) apart, as measured between the center lines of the rungs, cleats, and steps. OSHA believes that compliance with this provision will prevent accidents such as the one described here (OSHA, 2007, Inspection No. 308003953). As a final example, an employee in a South Dakota feed mill was atop a soybean storage bin gauging the level of the contents when he fell approximately 24 feet onto a concrete surface. The employee suffered head and upper body injuries that resulted in his death. The subsequent OSHA investigation resulted in citations for violations of the general duty clause and provisions in existing subpart D regulating floors, platforms, and railings. OSHA believes that the final revisions to subpart D will remove any ambiguity in the scope or purpose of the rule, which will prevent falls from storage bins and related surfaces (OSHA, 2007, Inspection No. 102761012). The accidents described above represent a small sample of the many slip-, trip-, and fall-related fatality and injury cases that OSHA’s final standards are designed to prevent. Appendix A presents a larger set of preventable fatal workplace accidents taken from the OSHA Integrated Management Information System (IMIS) database for 2006–2010 that involve slips, trips, or falls.89 To compile the accident dataset, OSHA searched the IMIS database for fatal work place injuries in general industry resulting from falls. The search excluded SIC codes for Construction, Agriculture, and Water Transportation/ Maritime and produced 974 records. Of those 974 records, the dataset in Appendix A focuses on the following types of falls: (1) Falls from ladders (ladders type unspecified, fixed ladders, extension ladders, step ladders, rolling ladders, other ladders); (2) Falls from scaffolds (scaffolds, scaffold ladders); (3) Falls from roofs (roofs, falls through skylights); (4) Falls from walking surfaces (slips, trips); (5) Falls from stairways; (6) Falls involving window washing; (7) Falls involving chimney 89 The IMIS database contains information on over 2.5 million inspections conducted since 1972. The information is continually being updated with new data originating from OSHA federal and state enforcement offices. VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 work; (8) Falls involving manholes; and (9) Other types of falls. These categories alone represented 290 of the possible 974 fatal fall incidents that would be covered by the D&I standard. When establishing the need for an occupational safety and health standard, OSHA must evaluate available data to determine whether workers will suffer a material impairment of their health or functional capacity resulting from exposure to the safety or health hazard at issue. Prior to promulgating a standard, the Agency also must determine that ‘‘a significant risk of harm exists and can be eliminated or lessened by a change in practices.’’ See Industrial Union Dep’t v. American Petroleum Institute, 448 U.S. 607 (1980). See also 58 FR 16612, 16614, (March 30, 1993) (OSHA must conclude that the standard it is promulgating will substantially reduce a significant risk of material harm). OSHA determined that the best available data for quantitatively estimating the risks associated with slips, trips, and falls in general industry come from the Bureau of Labor Statistics (BLS) injury and illness survey and census. OSHA relies on federal survey and census data from recent years to determine the risk to similarly exposed employees across industry in analyzing other safety standards (e.g., Confined Spaces in Construction at 80 FR 25366 (May 4, 2015)). Other regulatory and non-regulatory entities for research and policymaking widely accept and use these data sets.90 As previously discussed in section II of this preamble (Analysis of Risk), OSHA determined that hazards associated with walking and working on elevated, slippery, or other surfaces pose significant risks to employees, and that the revisions to subparts D and I are reasonable and necessary to protect affected employees from those risks. Based on the BLS data showing the number of injuries and fatalities currently occurring and OSHA’s judgments about the percentage of these injuries and fatalities that would be averted as a result of the standards, the Agency estimates that full compliance with the revised walking-working surfaces standards will prevent 29 fatalities and 5,842 lost-workday injuries annually. These benefits constitute a substantial reduction of significant risk of material harm for the exposed population of approximately 5.2 million employees in general industry. 90 See, for example, NIOSH, 2004, and FMCSA, 2010. PO 00000 Frm 00180 Fmt 4701 Sfmt 4700 2. Feasibility The Agency must show that the standards it promulgates are technologically and economically feasible. (See 58 FR 16612.) A standard is technologically feasible if the protective measures required already exist, available technology can bring the measures into existence, or reasonable designs and developments in technology can create the measures.91 Protective measures employers take to comply with safety standards generally involve the use of engineering and work-practice controls. Engineering controls include, for example, ladder safety systems, guardrails, toeboards, or other devices or barriers that protect employees from exposures to slip, trip, and fall hazards. Work-practice controls are techniques that employees use to perform their jobs (for example, safe climbing techniques on ladders). Employers also can use administrative controls (such as job rotation) and personal protective equipment (PPE) (such as harnesses and lanyards) to comply with safety standards. A standard is economically feasible if the cost of meeting it does not threaten the existence or competitive structure of an industry. An OSHA standard may be economically feasible even if it imposes costs that will put some marginal firms out of business.92 As discussed in more detail below, OSHA concludes that the final revisions to subparts D and I are both economically and technologically feasible. 3. Methodological Considerations in Development of the FEA OSHA prepared an economic analysis to estimate the benefits and costs of the revisions to subparts D and I as required by E.O. 12866. Since 2002, under the direction of the Office and Management and Budget, the Agency ‘‘monetized’’ the value of the injuries, illnesses, and fatalities that new standards will prevent, i.e., it monetized the value of expected benefits. Monetized values provide a common metric for both benefits and costs. When preparing an economic analysis in support of a proposed or final rule that is economically significant under E.O. 12866, OSHA presents annual estimates of benefits and costs. The Agency 91 See Society of the Plastics Industry v. OSHA, 509 F.2d, 1301, 1309 (1975); USWA v. Marshall, 647 F.2d, 1189 (1980); American Textile Manufacturers v. Donovan, 452 U.S. 490 (1981); and Building and Construction Trades Dept., AFL– CIO v. Brock, 838 F.2d 1258 (1988)). 92 See Industrial Union Dept. v. Hodgson, 499 F.2d 467 (1974); USWA v. Marshall, 647 F.2d, 1189 (1980); and American Textile Manufacturers v. Donovan, 452 U.S. 490 (1981)). E:\FR\FM\18NOR7.SGM 18NOR7 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations srobinson on DSK5SPTVN1PROD with RULES6 believes that this approach offers the simplest and clearest way to assess the economic effects of its standards. Computing annual estimates focuses the Agency’s analysis on information from current conditions and recent years, which the Agency deems the best, i.e., most accurate and reliable, information. OSHA typically assumes a ten year annualization period for one-time costs associated with a rule.93 In the case of this final rule for subparts D and I, adding additional years to the period of the analysis would not change any major policy conclusions. To characterize the effects of a new standard, the Agency estimates the costs and benefits expected to accrue as regulated entities move from the current state of affairs to full compliance with the rule. Accordingly, OSHA does not include injuries or fatalities already preventable through compliance with existing regulations in its assessment of the benefits expected from compliance with the new standard. Similarly, the Agency does not include the cost of complying with existing standards in its assessment of what it will cost employers to comply with the new standard. The Agency assumes that all employers will fully comply with the standard. OSHA’s analysis also assumes that employers incur all costs in the first year following promulgation of the final standard (with ongoing costs incurred annually beginning in Year 1), and that benefits result immediately. The Agency employs a ‘‘willingnessto-pay’’ (WTP) methodology to estimate benefits. Data from the BLS provide the number of expected injuries and fatalities occurring currently and assumed to continue into the future in the absence of this regulatory standard, OSHA makes expert judgments about the percentage of these injuries and fatalities averted as a result of the standard, and the Agency uses WTP 93 As discussed later in this FEA, fixed ladders, cages, and wells may have a functional life longer than ten years. However, the fall protection equipment and other safety controls applied in this FEA are assumed to have a life of ten years, and the cost analysis for these controls reflects that lifespan. The Agency estimated that fixed ladders have an average life of 30 years. Replacement of the fixed ladders would occur evenly across the 30-year period, and, with a phase-in date 20 years after publication, some ladders still would require replacement anywhere from 1 to 10 years after the 20-year phase-in date. OSHA calculated first-year costs (at Year 0) of installing ladder safety systems for the annual percentage (3.3 percent each year) of the total stock of fixed ladders (24′ to 30′ in height) that from Year 21 to Year 30 will no longer meet the requirements of the standard. Then OSHA used a seven percent discount rate to annualize over 10 years. First-year costs total $8.5 million and annualized costs total $1.2 million. For further details, see Ex. [OSHA Excel Workbook], tabs retrofit_28_calc and retrofit_28. VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 estimates from the extant literature to assign monetary values to these injuries and fatalities. OSHA bases its estimates of willingness to pay on empirical studies that statistically analyze the effects of fatality and injury rates on wage rates to arrive at individuals’ trade-off between higher wages and an incremental increase in occupational risk. That trade-off allows economists to calculate the implicit value of a statistical life (VSL).94 Many government regulatory authorities, such as the National Highway Traffic Safety Administration and the Environmental Protection Agency, use the VSL as a metric, but it is particularly appropriate for occupational regulations since it is derived from occupational risks and wages. The primary alternative to a WTP approach is a ‘‘cost-of-injury’’ (COI) approach. The COI approach accounts for the various costs to all parties associated with an injury or fatality, including medical costs, the costs of work disruption from accidents and accident investigations, indirect costs to employers (e.g., absenteeism, hiring costs), lost wages or job opportunities, and rehabilitation expenses. The COI approach results in ascribing costs and benefits to many involved entities: The employer, the employee, workers’ compensation programs, health insurance providers, federal disability programs, governmental bodies, and taxpayers, among others. A COI approach does not capture the values of pain and suffering, impacts on families, or similar parameters, and for that reason, the Agency believes that WTP is superior. The Agency’s calculation of benefits and costs adopts the perspective of society as a whole. Compliance costs are borne directly by affected employers but these costs may ultimately be borne by a wide variety of parties including employers, consumers, government, and employees. Benefits accrue to employees, families, insurers, and government, as well as to employers. 4. OSHA’s Estimates of Benefits, Costs, and Net Benefits a. Introduction Employees throughout general industry are exposed to slip, trip, and fall hazards that cause serious injury 94 For example, if workers are willing to pay $50 each for a 1/100,000 reduction in the probability of dying on the job, then the imputed value of an avoided fatality is $50 divided by 1/100,000, or $5,000,000. Another way to consider this result is to assume that 100,000 workers made this trade-off. On average, $5,000,000 would save one life. For discussion on WTP methodologies, see Viscusi and Aldy (2003). PO 00000 Frm 00181 Fmt 4701 Sfmt 4700 82673 and death. OSHA estimates that, on average, approximately 202,066 serious (lost-workday) injuries and 345 fatalities occur annually among workers directly affected by the final standard. Although better compliance with existing safety standards may prevent some of these incidents, research and analyses conducted by OSHA found that many preventable injuries and fatalities would continue to occur even if employers were complying fully with the existing standards. Even if there were full compliance with the existing standards, OSHA estimates that full compliance with the final standard will prevent an additional 5,842 lost-workday injuries and 29 fatalities each year. An additional benefit of this rulemaking is that it will provide updated, clear, and consistent safety standards for walking and working surfaces and personal fall protection equipment. Most of the existing OSHA standards for walking-working surfaces are over 30 years old and inconsistent with both national consensus standards and more recently promulgated OSHA standards addressing fall protection. Presently, OSHA’s standards for fall protection on walking-working surfaces in general industry differ from the comparable standards for construction work. In most instances, employees use similar work practices to perform similar tasks, irrespective of whether they are performing construction or general industry work. Whether OSHA’s construction or general industry standards apply to a particular job depends on whether the employer is altering the system (construction work) or maintaining the system (general industry work). For example, replacing an elevated ventilation system at an industrial site would be construction work if it involves upgrading the system, but general industry work if it involves an in-kind replacement. Since the work practices used by the employees would most likely be identical in both situations, it would ease compliance if OSHA’s general industry and construction standards were as consistent as possible. Under OSHA’s existing requirements, however, different requirements might apply to similar work practices, e.g., an employer overhauling two or more ventilation systems may have to comply with two different sets of OSHA requirements if one project is considered construction and another general industry. The existing inconsistencies between the construction and general industry standards make it difficult for employers to develop appropriate work practices for their employees. Consequently, employers and E:\FR\FM\18NOR7.SGM 18NOR7 82674 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations srobinson on DSK5SPTVN1PROD with RULES6 employees told OSHA that they would like the two standards to match more closely. This final rule achieves that result. OSHA neither quantified nor monetized several other benefits of the final standard. First, OSHA did not estimate the number of fall injuries prevented that do not result in lost workdays. Second, OSHA did not estimate the improvements in efficiency of compliance associated with clarifying the existing rule and making it consistent with current national consensus standards. OSHA’s benefit estimates are most sensitive when it comes to estimating the percentage of current injuries and fatalities that full compliance with the final standard will avoid. The true benefits of the final standard depend on how well the cases reviewed represent actual fall-related fatalities in general industry. The Agency believes that its estimate of about 345 annual fatalities in general industry involving slips, trips, and falls VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 is more certain than the estimate of the percentage of fatalities avoided because the estimate of the annual number of baseline fatalities comes from seven years of recent incident data that corroborate eleven prior years of incident data. OSHA’s estimate of fatalities avoided is more sensitive because it is based on professional judgment after reviewing incident reports in the record. Moreover, OSHA believes that its benefit estimates have a tendency toward underestimation, as training and work practices adopted in an effort to comply with the final rule will likely increase the use of safety equipment and safer work techniques, thereby further reducing fatalities and injuries.95 95 OSHA notes that the literature on the effectiveness of training indicates positive benefits, but the extent of benefits varies depending on intervention methodology and other factors. See research by the National Institute for Occupational Safety and Health: Cohen and Colligan, 1998, and NIOSH, 2010 (https://www.cdc.gov/niosh/docs/2010127/pdfs/2010-127.pdf). PO 00000 Frm 00182 Fmt 4701 Sfmt 4700 The impacts exhibit below presents a summary of the annualized costs and benefits for each section of the final standard, assuming a discount rate of seven percent. In addition to estimating annualized costs using a discount rate of seven percent, OSHA, for sensitivity purposes, also used OIRA’s recommended alternative discount rate of three percent. Under the alternative scenario of a three-percent discount rate, OSHA estimates that annualized costs would decline from $305.0 million to $297.0 million. For both this scenario and for the primary (seven-percent rate) scenario, OSHA assumed that employers will incur all costs (first-year and recurring) on implementation of the final standard. OSHA also is assuming that the benefits outlined in this section will accrue once the rule takes effect. Section D of this FEA (Benefits, Net Benefits, Cost Effectiveness, and Sensitivity Analysis) describes in detail the other cost-related uncertainties. BILLING CODE 4510–29–P E:\FR\FM\18NOR7.SGM 18NOR7 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 82675 Impacts Exhibit V-1: Estimated Annualized Costs and Benefits of the Final Rule Benefits Type of Accident Fatalities Injuries Costs Prevented Prevented Prevented ($millions) Fall on same level 0.7 1,371 1.4 399 Fraction of 0.4 Fraction of 13 Large fraction of 11.4 Large fraction of 2,161 Fall from ship, boat, n.e.c.[a] Fraction of 0.2 Large fraction of 415 Fall from ladder Small fraction of 11.4 Small fraction of 2,161 1.0 736 3.4 362 Large fraction of Large fraction 5.4 of239 Fall from ladder Small fraction of 11.4 Small fraction of 2,161 Fall from roof Large fraction of 5.1 Large fraction of86 Fall from building girders or other structural steel Fraction of 0.4 Fraction of 13 Fall from ship, boat, n.e.c. Fraction of 0.2 Fraction of415 Fall from scaffold, staging Small fraction of 5.4 Small fraction of239 Requirement Requirements Fall from floor, dock, or ground level Fall from building girders or other structural steel Fall from ladder §1910.23 Ladders §1910.24 Step Bolts Fall down stairs or and Manhole Steps steps Fall to lower level, n.e.c. §1910.27 Scaffolds §1910.28 Duty to Have Fall from scaffold, staging Fall Protection §1910.29 Fall Protection Systems srobinson on DSK5SPTVN1PROD with RULES6 Criteria and Practices VerDate Sep<11>2014 23:45 Nov 17, 2016 $33.2 Jkt 241001 PO 00000 Frm 00183 Fmt 4701 Sfmt 4725 E:\FR\FM\18NOR7.SGM $11.3 $18.0 18NOR7 $71.6 $55.9 $13.1 ER18NO16.100</GPH> § 1910.22 General 82676 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations Impacts Exhibit V-1: Estimated Annualized Costs and Benefits of the Final Rule (continued) Benefits Requirement §1910.30 Training Multiple fall categories Requirements Fatalities Prevented Injuries Prevented Fraction of benefits for Type of Accident Prevented Fraction of benefits for many fall many fall categories Multiple fall categories affected by assessment of hazards associated Fraction of benefits for many fall categories categories Fraction of benefits for many fall categories Fraction of benefits for many fall categories Multiple fall Fraction of benefits for Fraction of benefits for many fall categories many fall categories 29 Protection Fraction of benefits for many fall Multiple fall categories affected by equipment design specifications §1910.140 Fall 5,842 Rule Familiarization categories Total - Preferred Option Less Stringent Alternative - Narrower Scope for Training $12.7 $11.0 $4.1 $305.0 Lower Benefits than under Preferred Option Lower Costs than under Preferred Option Modestly Higher Benefits than under Preferred Option Significantly Higher Costs (Possibly over $1 Billion) than under Preferred Option Requirements More Stringent Alternative - Mandated Combination of Cages, Wells, Landing Platforms, and Ladder Safety Systems [a ]n.e.c.: Not elsewhere classified; term used throughout this FEA. Source: U.S. Department of Labor, OSHA, Directorate of Standards and Guidance, Office of Regulatory AnalysisSafety. VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 PO 00000 Frm 00184 Fmt 4701 Sfmt 4700 E:\FR\FM\18NOR7.SGM 18NOR7 ER18NO16.101</GPH> srobinson on DSK5SPTVN1PROD with RULES6 $74.2 categories with personal fall protection equipment §1910.132 General Requirements Costs ($millions) Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations BILLING CODE 4510–29–C srobinson on DSK5SPTVN1PROD with RULES6 b. Changes From OSHA’s Preliminary Economic Analysis to This Final Analysis As shown below in the summary table for Section B of this FEA (Assessing the Need for Regulation), OSHA projects that the final rule will produce annual benefits of 29 fatalities and 5,842 lostworkday injuries prevented, while annualized costs will total $305.0 million. OSHA’s preliminary estimate of benefits (in the Preliminary Economic Analysis (PEA) for the proposed rule) was 20 fatalities and 3,706 lost-workday injuries prevented, and the Agency’s preliminary estimate of costs in the PEA totaled $173.2 million. The later sections of this FEA explain the reasons for these changes in detail. To summarize, OSHA notes that the primary factors contributing to larger benefits and costs (in relation to the PEA) are: (1) Explicit requirements for ladder safety systems for fixed ladders and structures with step bolts, guardrails for slaughtering platforms, and roof anchor systems for rooftop operations; (2) additional time allotted for inspection of walking-working surfaces for dust and other hazardous substances, consistent with a clarification in the regulatory text; and (3) an increase in the number of workers in outdoor advertising and other activities who will need training in using fall protection equipment. c. Alternative Regulatory Approaches To determine the appropriate approach for addressing the occupational risks associated with slips, trips, and falls in general industry, OSHA considered many different factors and potential alternatives. The Agency examined the incidence of injuries and fatalities, and their direct and underlying causes, to ascertain revisions to the existing standards. OSHA reviewed these standards, assessed current practices in the industry, collected information and comments from experts, and scrutinized the available data and research. OSHA faces several constraints in determining appropriate regulatory requirements. Under Section 3(8) of the OSH Act, OSHA standards must be ‘‘reasonably necessary or appropriate to provide safe or healthful employment and places of employment.’’ Also, under Section 6(b)(8) of the OSH Act, to the extent an OSHA standard differs substantially from existing national consensus standards, the Agency must explain why the OSHA standard will better accomplish the purposes of the OSH Act. As noted elsewhere, OSHA VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 standards also must be technologically and economically feasible and cost effective, in the sense of the term as used in the OSH Act as interpreted by the courts.96 Section IV, Summary and Explanation of the Final Rule, earlier in this preamble, provides a full discussion of the basis for the regulatory requirements in the final rule. The Final Regulatory Flexibility Screening Analysis later in this section of the preamble discusses the regulatory alternatives considered by OSHA. In that section, Table V–34 presents impacts associated with regulatory alternatives for selected provisions of the final standard. OMB’s Circular A–4, Regulatory Analysis, recommends that agencies ‘‘should analyze at least three options: The preferred option; a more stringent option that achieves additional benefits (and presumably costs more) beyond those realized by the preferred option; and a less stringent option that costs less (and presumably generates fewer benefits) than the preferred option’’ (p. 16). This final rule presents the preferred option. The less stringent alternative, rejected by OSHA, would reduce the number of fall-hazard categories requiring training; however, the cost of this alternative would remain significant (but below the cost of $74.2 million for the preferred alternative training requirements), with a reduction in benefits relative to the preferred alternative. OSHA did not explicitly quantify this alternative. The more stringent alternative would require that employers provide cages, wells, landing platforms, and ladder safety devices for all fixed ladders; the cost of this alternative would be highly significant, while the incremental benefits would be modest relative to the preferred alternative. OSHA notes that the 1990 NPRM estimated the annualized cost for cages, wells, and other safety devices for fixed ladders to be $1.6 billion in 1990 dollars. Evidence in the record suggests that cages and wells are an outdated technology that do not provide adequate fall protection for workers climbing ladders, and that ladder safety devices are a recent development that provide a feasible 96 The OSHA Act as interpreted by the courts requires that regulations be cost effective in the sense that no other alternative in the record addressing the same hazards has an equivalent reduction in the risk associated with those hazards; that is, reduces those risks to the same extent at lower cost (Am. Textile Mfrs. Inst. v. Donovan, 453 U.S. 490, 514 n. 2 (1981); UAW v. OSHA, 37 F.3d 665, 668 (D.C. Cir. 1994)). This is not a wide ranging invitation to compare cost effectiveness across many risks but a narrow assurance that the exact same effects could not be achieved at less cost. An analysis of regulatory alternatives is provided in Section V.H.8. PO 00000 Frm 00185 Fmt 4701 Sfmt 4700 82677 alternative, or complement, to cages and wells (Exs. 113; 198). Therefore, if employers could not use such devices, the more stringent alternative requiring cages, wells, and landing platforms would be far more expensive than to the final rule. B. Assessing the Need for Regulation OSHA previously considered nonregulatory alternatives and established the need for regulation of walkingworking surfaces when it promulgated the standard for fall protection in construction (59 FR 40672). The Agency asserts that the same need for regulation applies when employees in general industry are engaged in tasks on walking-working surfaces. Employees in general industry performing work on floors, other ground-level surfaces, or at heights are exposed to a variety of significant hazards—particularly slips, trips, and falls—that can and do cause serious injury and death. Although some of these incidents might have been prevented by better compliance with existing safety standards, research and analyses conducted by OSHA have found that many preventable injuries and fatalities could continue to occur even if employers fully complied with the existing standards. Relative to full compliance with the existing standards, OSHA estimates, in Section D of this FEA, that full compliance with the final standard would prevent an estimated additional 5,842 injuries and 29 fatalities annually. Executive Order 12866 provides that ‘‘[e]ach agency shall identify the problem that it intends to address [via regulation] . . . including, where applicable, the failures of private markets.’’ Executive Order 13563 reiterates that requirement. In the absence of regulations, market failures can prevent free markets from providing the levels of occupational safety—and particularly the levels of safety for workers affected by this standard—that would maximize net benefits to society. In the absence of regulation, many employees would simply be unaware of the hazards that walking-working surfaces present or the procedures to follow to protect against such hazards. Even those employees with years of experience working at elevated or other surfaces may lack training on fall protection, information about specific fall hazards, or needed equipment for preventing or limiting the impact of falls. The final standard for walkingworking surfaces in general industry addresses these problems. The benefits analysis presented in Section D of this FEA shows that many accidents are E:\FR\FM\18NOR7.SGM 18NOR7 srobinson on DSK5SPTVN1PROD with RULES6 82678 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations potentially preventable with better information on worksite conditions and the provision of the proper procedures and equipment for fall protection. In cases where employers do provide training on fall prevention, that training may be incomplete or ineffective in the absence of a specific set of requirements to train to. OSHA’s analysis of benefits and costs, conducted with an orientation toward the OSH Act and associated case law, shows that the benefits of the final standard significantly exceed its costs. To better understand the market failures that create the need for this rule, it is necessary to examine the economic incentives that underlie employer decisions with respect to workplace safety and health. An employee typically accepts the risks associated with a particular job in return for two forms of compensation—(1) a wage premium for assuming that risk, and (2) expected compensation for damages in the event of occupational injury or illness. The rational profit-maximizing employer will make investments in workplace safety to reduce the level of risk to employees only if such expenditures result in at least an offsetting reduction in the employer’s payouts of wage premiums for risk and compensation for damages. To the extent that the sum of the costs of wage premiums and compensation for damages accurately represents the total damages associated with workplace accidents, the rational employer will accordingly arrive at the socially optimal level of accident prevention from an economic efficiency viewpoint. Consequently, the major possible sources of market failure, resulting in an ‘‘under-provision’’ of health and safety, would be either: (1) The existence of occupational accident costs that are borne neither by the employee nor by the employer or (2) the wage premiums or compensation for damages are not fully responsive to changes in employerspecific workplace risk. Both cases apply here. In the first case, there are some occupational injury and illness costs that are incurred by neither the employer nor the employee. For instance, neither of those two parties has a vested interest in Federal and State taxes that go unpaid as a result of an employee injury. Such taxes typically represent 15 percent (for Social Security alone) to 26 percent of the total value of the income loss to the employee (IRS, 2013; Urban Institute/ VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 Brookings, 2012).97 Tax losses are likely to be significant because (1) workers’ compensation payments are not subject to Federal income or Social Security taxes (IRS, 2012), and (2) many studies have found that income losses not compensated by workers’ compensation are significant (NASI, 2012). (There are some other possible incentive effects with respect to tax policy that might either encourage or discourage safety, but they represent a small percentage of the total value of a statistical life or injury by comparison.) In the second case, as discussed below, the costs employers pay in compensation for damages or wage premiums are not fully responsive to changes in employer-specific workplace risk. Most employers cover—and are required to cover—compensation for injured employees through workers’ compensation insurance. (Some very large employers may self-insure in some states.) States highly regulate premiums for workers’ compensation insurance and generally employ a combination of a class rating and an experience rating in deriving premiums (NCCI, 2013; Ashford, 2006). The class rating is based on the average risk for employees in the same occupations as those working for the employer. The basis of the experience rating is the employer’s actual workers’ compensation claims over the past several years. Very small firms are almost entirely class-rated; even medium-sized firms are partly class-rated; and it will take even firms that are fully experience-rated several years before their insurance premium levels fully reflect any change in their workplace safety performance.98 As a result, most employers will not realize fully or promptly the gains from their expenditures to avoid workplace injury, illness, and fatality risks in the form of reduced workers’ compensation premiums. The result is an insufficient level of worker protection from a societal perspective. Furthermore, workers’ compensation covers only a small fraction of most estimates of the willingness to pay to prevent a fatality.99 Additionally, 97 The average federal tax rate for 2009 for the middle quintile of household income was 11.1 percent (Urban Institute/Brookings, 2012). 98 This outcome, of course, reflects an accounting point. Premiums due to class rating, by definition, do not change with an individual employer’s injury experience. There is some empirical evidence, using a difference in differences methodology, that (small) firms that move from class to experience rating decrease their total claims by 8 to 12 percent (Neuhauser et al., 2013). 99 While workers’ compensation varies by state, Leigh and Marcin (2012) estimate that the average indemnity benefits for a fatality are $225,919, far PO 00000 Frm 00186 Fmt 4701 Sfmt 4700 workers’ compensation payments do not fully compensate injuries in that workers’ compensation provides no payments for pain and suffering or losses other than lost wages or medical expenses associated with injuries. There is extensive evidence that workers’ compensation does not even fully restore wages lost as a result of longterm disability (Ashford, 2006). Having to pay wage premiums for risk is another economic incentive for employers to mitigate occupational risk. However, wage premiums do not respond to changes in risk level very strongly, due to information asymmetries. For an employer to have an adequate incentive to implement measures that will prevent workplace accidents, it is not sufficient that employees simply know that their work is dangerous, or even know quantitatively that their occupation has a given risk. Employees must know the exact nature and likely quantitative effects of their employer’s safety measures and systems; have a reasonable expectation that their employer will continue to provide existing safety measures in the future; and be able to act on their knowledge of risk by readily changing workplaces or changing wage demands in response to differences in levels of risk.100 OSHA believes that even skilled workers exposed to the risks of slips, trips, and falls (including some persons injured in accidents preventable by the final rule who fall in that category) lack such detailed employer-specific knowledge or the ability to act on it. Further, employees who typically work at a variety of different sites, including sites controlled by multiple employers, will find it particularly challenging to determine future risk levels, as these levels will vary from site to site. In summary, OSHA believes that: (1) The provisions of the final rule are necessary to assure that employees have the information, procedures, and equipment they need to protect themselves; (2) neither employers nor less than willingness-to-pay estimates. For example, as explained in Section D of this FEA, OSHA uses a willingness-to-pay measure of $8.4 million per life saved in 2010 dollars. Other agencies use different estimates, but all the values are in the millions of dollars. 100 Furthermore, bargaining power differences or external constraints must not interfere in the wage setting process—as they do in circumstances of monopsony or multiemployer collective bargaining agreements, for example. Bargaining power differences may occur, for example, in small communities where a single manufacturer may be the employer for certain kinds of skills, or the more general issue that an employee’s firm specific skills (such as understanding of unique processes or equipment) are in demand by only a single employer. E:\FR\FM\18NOR7.SGM 18NOR7 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations employees absorb the full costs of occupational injuries and fatalities; and (3) wage premiums and workers’ compensation insurance are not sufficiently responsive to changes in risk to assure that employers will reduce risk to the socially optimal level. The rule is, therefore, necessary to address market failures that result from externalities and information asymmetries that lead to the provision of insufficient levels of worker safety. C. Profile of Affected Industries, Firms, Workers, and Other Factors of Production 1. Introduction This section presents OSHA’s profile of the firms, establishments, and employees within the industries affected by OSHA’s revision to 29 CFR part 1910, subparts D and I. The Agency based this profile on data assembled and organized by its contractor, Eastern Research Group (ERG, 2007), and updated using more recent data from the same data series used previously. 2. Affected Industries and Employees Revised subparts D and I apply to employers and industries covered by OSHA’s standards for general industry in 29 CFR part 1910. Similarly, all other subparts in part 1910 affected by these revisions to OSHA’s walking-working surfaces standards would impose requirements on employers in general industry under OSHA’s jurisdiction.101 The general industry category excludes establishments in the agriculture, construction, maritime (longshoring, marine terminal, and shipyards), and mining industries (except for oil and gas extraction). Also excluded from the final standard are employee tasks on surfaces that fall outside of OSHA’s jurisdiction srobinson on DSK5SPTVN1PROD with RULES6 101 For example, subpart F—Powered Platforms, Manlifts, and Vehicle-Mounted Work Platforms, would be affected by the revisions to subparts D and I. For a compilation of all standards affected by these revisions, see the Final Regulatory Text at the end of this document. VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 due to location or operational status, or those tasks that are subject to unique industry-specific fall protection requirements addressed elsewhere in part 1910, including § 1910.268, Telecommunications, and § 1910.269, Electric power generation, transmission, and distribution. An example of a jurisdictional category excluded from the scope of the final rule based on location or operational status is employee exposure to fall hazards when railroad rolling stock is traveling on rails or trucks are traveling on highways; the Department of Transportation regulates these operations. The walking-working surfaces covered by the final standards are present in nearly every establishment. Therefore, OSHA assumes that the number of establishments and employees potentially affected by subpart D includes all establishments and employees in general industry. Table V–1 shows the total number of establishments and employees potentially affected by revisions to subpart D, with the data listed in order by the North American Industry Classification System (NAICS) 4-digit industry code (OMB, 2007). Relying on the U.S. Census’ Statistics of U.S. Businesses for 2007, OSHA estimates that the final standard will affect 6.9 million establishments employing 112 million employees; the comparable figures in the PEA were 6.7 million establishments and 112 million employees, based on 2006 data. Table V–1 also provides economic profile statistics for the industries covered by the final standard. For purposes of estimating training requirements with respect to ladders, OSHA estimated that these provisions would apply to the 5.2 million employees engaged in construction, installation, maintenance, repair, and moving operations in general industry. These employees represent the main group of workers affected by the final PO 00000 Frm 00187 Fmt 4701 Sfmt 4700 82679 standards; however, the final standards may affect employees doing other types of operations and some general industry employees engaged in installation, maintenance, and repair operations will not be affected. Therefore, to estimate the population affected, OSHA identified general industry employees in occupational codes involving construction, installation, maintenance and repair. There certainly are ladder users in other occupations, but the occupations OSHA has included also include many persons whose work typically would not involve the use of ladders (e.g., computer repair, electronics repair, or construction work such a plumbing or carpet repair). As a result, while the OSHA list of occupations examined for purposes of costing ladder training may not include all possible persons receiving such training, it is balanced by the inclusion of some occupations that will not need training. This approach assumes that employees in construction occupations, but employed by general industry employers rather than construction employers, routinely engage in what OSHA labels as maintenance (i.e., a general industry activity) rather than construction activities. In the PEA, OSHA used Census 102 data on payroll and receipts to estimate average revenue per establishment in 2006 for each 4-digit NAICS industry. For this FEA, revenue data for 2007 were available from Census’s Statistics of U.S. Businesses; Table V–1 reports these revenue data as average receipts per establishment by 4-digit NAICS industry in Table V–1.103 BILLING CODE 4510–29–P 102 ‘‘Census’’ refers to the U.S. Census Bureau. the time the Agency was developing this FEA, the most recent year for detailed industryspecific revenue was 2007 Statistics of US Businesses. In the years since that date the US economy has experienced a recession and a recovery. Because new hires were greater in 2007, this had the effect of increasing costs. 103 At E:\FR\FM\18NOR7.SGM 18NOR7 srobinson on DSK5SPTVN1PROD with RULES6 82680 VerDate Sep<11>2014 Production Employees Jkt 241001 PO 00000 NAICS 1131 Timber Tract Operations Establishments Total Employees Total No. of Production Employees[b] Number Share of Production Employees Frm 00188 450 $1,669 2,632 NA[d] NA NA 231 $1,522 2,216 NA NA NA Forest Nurseries 1132 and Gathering of Forest Products Fmt 4701 Sfmt 4725 E:\FR\FM\18NOR7.SGM 18NOR7 1133 Logging 9,810 $1,086 59,597 16,250 2,580 1141 Fishing 2,062 $1 '161 5,302 NA NA NA 327 $688 1,845 NA NA NA 1,755 $819 13,740 NA NA NA 7,542 $31,038 141,809 51,040 24,910 48.8% 9,611 $45,816 503,134 192,210 130,970 68.1% 2,283 $54,187 79,354 47,610 32,520 68.3% 4,780 $2,033 40,269 27,410 10,760 39.3% 1,817 $21,156 46,983 36,000 3,580 9.9% 830 $87,089 58,049 42,600 5,380 12.6% 1142 1153 2111 Hunting and Trapping Support Activities for Forestry Oil and Gas Extraction 15.9% Electric Power 2211 2212 2213 3111 3112 ER18NO16.102</GPH> NAICS Description Average Receipts per Establishment ($1 ,OOO)[a] Production Employees in At-Risk Occupations (Construction, Installation, Maintenance, and Repair Occupations)[c] Generation, Transmission and Distribution Natural Gas Distribution Water, Sewage and Other Systems Animal Food Manufacturing Grain and Oilseed Milling Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 23:45 Nov 17, 2016 Table V-1 Profile of General Industry Establishments Covered by the Final Standard for Subparts D and I srobinson on DSK5SPTVN1PROD with RULES6 VerDate Sep<11>2014 Table V-1 Profile of General Industry Establishments Covered by the Final Standard for Subparts D and I (continued) Jkt 241001 PO 00000 NAICS 3113 NAICS Description Sugar and Confectionery Product Manufacturing Establishments Average Receipts per Establishment ($1,000)[a] Production Employees in At-Risk Occupations (Construction, Installation, Maintenance, and Repair Occupations)[c] Total Employees Total No. of Production Employees[b] Number Share of Production Employees Frm 00189 Fmt 4701 $15,751 73,457 55,980 6,510 11.6% 1,668 $38,180 162,253 138,180 15,690 11.4% 1,612 $55,897 129,692 98,900 9,660 9.8% 3,817 $40,958 487,813 464,910 25,900 5.6% 685 $16,865 33,169 28,540 1,500 5.3% 10,269 $5,472 284,998 204,000 11,840 5.8% 3,310 $22,381 162,852 111,360 9,490 8.5% 3,960 $22,088 135,979 107,700 15,210 14.1% $384,255 20,135 17,780 3,710 20.9% Fruit and Vegetable 3114 Preserving and Specialty Food Manufacturing 3115 Sfmt 4725 3116 E:\FR\FM\18NOR7.SGM 3117 18NOR7 1,788 Dairy Product Manufacturing Animal Slaughtering and Processing Seafood Product 3118 3119 3121 Preparation and Packaging Bakeries and Tortilla Manufacturing Other Food Manufacturing Beverage Manufacturing 3122 Tobacco Manufacturing 109 3131 Fiber, Yam, and Thread Mills 424 $21,211 42,041 40,060 5,950 14.9% 3132 Fabric Mills 1,318 $14,424 80,514 64,710 7,390 11.4% 3133 Textile and Fabric Finishing and Fabric 1,350 $6,381 41,527 38,820 2,550 6.6% 2,583 $7,733 80,278 68,110 4,850 7.1% Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 23:45 Nov 17, 2016 Production Employees Coating Mills ER18NO16.103</GPH> Textile Furnishings Mills 82681 3141 srobinson on DSK5SPTVN1PROD with RULES6 82682 VerDate Sep<11>2014 Table V-1 Profile of General Industry Establishments Covered by the Final Standard for Subparts D and I (continued) Jkt 241001 Other Textile Product Mills 4,149 $2,612 72,700 54,280 3,170 5.8% Frm 00190 3151 Apparel Knitting Mills 487 $7,915 26,584 25,130 2,250 9.0% 3152 8,965 $2,603 155,742 135,500 1,463 1.1% Fmt 4701 3159 916 $1,890 15,128 13,830 340 2.5% 244 $5,655 4,856 4,440 264 5.9% 306 $6,905 15,017 13,070 360 2.8% 842 $3,188 16,798 9,960 100 1.0% 4,168 $6,928 112,425 91,820 9,160 10.0% 1,924 $11,371 109,002 94,280 12,260 13.0% 10,530 $4,759 306,138 249,800 39,970 16.0% 551 $149,010 130,068 105,270 22,220 21.1% 4,486 $21,433 295,028 257,680 20,140 7.8% 33,281 $3,054 631,771 397,300 10,140 2.6% Sfmt 4725 PO 00000 Total Employees 3149 Cut and Sew Apparel Manufacturing Establishments Total No. of Production Employees[b] NAICS Apparel Accessories and 3161 E:\FR\FM\18NOR7.SGM 3162 18NOR7 3212 3169 3211 Other Apparel Manufacturing Leather and Hide Tanning and Finishing Footwear Manufacturing Other Leather and Allied Product Manufacturing Sawmills and Wood Preservation Veneer, Plywood, and Engineered Wood Product Manufacturing 3219 3221 3222 3231 ER18NO16.104</GPH> NAICS Description Average Receipts per Establishment ($1 ,OOO)[a] Production Employees in At-Risk Occupations (Construction, Installation, Maintenance, and Repair Occupations)[c] Share of Production Employees Number Other Wood Product Manufacturing Pulp, Paper, and Paperboard Mills Converted Paper Product Manufacturing Printing and Related Support Activities Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 23:45 Nov 17, 2016 Production Employees srobinson on DSK5SPTVN1PROD with RULES6 VerDate Sep<11>2014 Table V-1 Profile of General Industry Establishments Covered by the Final Standard for Subparts D and I (continued) Jkt 241001 NAICS Description Establishments Total Employees Total No. of Production Employees[b] 2,408 $247,193 103,577 74,770 17,330 23.2% 3251 Basic Chemical Manufacturing 2,540 $88,423 165,025 93,150 19,100 20.5% Fmt 4701 3252 Resin, Synthetic Rubber, and Artificial Synthetic Fibers and Filaments Manufacturing 1,076 $97,133 88,601 72,460 13,690 18.9% 3253 Pesticide, Fertilizer, and Other Agricultural Chemical Manufacturing 906 $31,547 28,618 24,350 4,520 18.6% 3254 Pharmaceutical and Medicine Manufacturing 1,926 $94,046 241,339 111,800 14,170 12.7% 3255 Paint, Coating, and Adhesive Manufacturing 1,906 $17,179 62,493 37,360 2,710 7.3% 3256 Soap, Cleaning Compound, and Toilet Preparation Manufacturing 2,241 $41,957 104,422 69,760 7,580 10.9% 3259 Other Chemical Product and Preparation Manufacturing 2,800 $16,028 103,219 64,520 6,770 10.5% 3261 Plastics Product Manufacturing 12,054 $14,344 707,972 484,610 34,130 7.0% 3262 Rubber Product Manufacturing 2,179 $17,848 147,511 120,650 9,440 7.8% E:\FR\FM\18NOR7.SGM 18NOR7 ER18NO16.105</GPH> 82683 Petroleum and Coal Products Manufacturing Sfmt 4725 3241 Frm 00191 PO 00000 NAICS Average Receipts per Establishment ($1,000)[a] Production Employees in At-Risk Occupations (Construction, Installation, Maintenance, and Repair Occupations)[c] Share of Production Number Employees Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 23:45 Nov 17, 2016 Production Employees srobinson on DSK5SPTVN1PROD with RULES6 82684 VerDate Sep<11>2014 Table V-1 Profile of General Industry Establishments Covered by the Final Standard for Subparts D and I (continued) Jkt 241001 PO 00000 NAICS NAICS Description Establishments Average Receipts per Establishment {$1,000)[a1 Total Employees Total No. of Production Employees[b1 Production Employees in At-Risk Occupations (Construction, Installation, Maintenance, and Repair Occupations)[c1 Share of Production Number Employees Frm 00192 3271 Clay Product and Refractory Manufacturing 1,560 $5,818 52,544 44,040 4,350 9.9% 3272 Glass and Glass Product Manufacturing 2,102 $11,056 97,876 81,800 8,960 11.0% 9,963 $6,645 221,488 203,410 35,960 17.7% 362 $21,293 17,332 15,330 3,160 20.6% 3,485 $5,983 82,888 65,810 11,150 16.9% 901 $116,393 109,998 81,680 19,330 23.7% 699 $30,504 44,492 47,060 5,290 11.2% Fmt 4701 3274 Sfmt 4725 3273 3279 Cement and Concrete Product Manufacturing Lime and Gypsum Product Manufacturing Other Nonmetallic Mineral Product E:\FR\FM\18NOR7.SGM Manufacturing 3311 3312 Iron and Steel Mills and Ferroalloy Manufacturing Steel Product Manufacturing from Purchased Steel 612 $67,170 63,988 59,590 10,870 18.2% Nonferrous Metal (except Aluminum) Production and Processing 938 $58,260 60,466 51,800 6,990 13.5% 3315 Foundries 2,117 $16,145 159,977 133,200 13,590 10.2% 3321 Forging and Stamping 2,664 $12,189 124,406 86,660 6,800 7.8% 3322 18NOR7 Alumina and Aluminum Production and Processing 3314 ER18NO16.106</GPH> 3313 Cutlery and Handtool Manufacturing 1,485 $7,449 50,529 37,250 2,170 5.8% Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 23:45 Nov 17, 2016 Production Employees srobinson on DSK5SPTVN1PROD with RULES6 VerDate Sep<11>2014 Table V-1 Profile of General Industry Establishments Covered by the Final Standard for Subparts D and I (continued) Jkt 241001 PO 00000 NAICS Frm 00193 3323 NAICS Description Architectural and Structural Metals Manufacturing Establishments Average Receipts per Establishment ($1,000)[a] Total Employees Total No. of Production Employees[b] Production Employees in At-Risk Occupations (Construction, Installation, Maintenance, and Repair Occupations)[c] Share of Production Employees Number Fmt 4701 13,705 $6,500 398,786 312,940 38,720 12.4% 1,570 $20,031 93,356 68,060 6,200 9.1% $12,314 41,763 23,970 1,180 4.9% Sfmt 4725 E:\FR\FM\18NOR7.SGM 3324 Boiler, Tank, and Shipping Container 3325 Hardware Manufacturing 795 3326 Spring and Wire Product Manufacturing 1,614 $6,349 53,413 43,030 2,470 5.7% 3327 Machine Shops; Turned Product; and Screw, Nut, and Bolt Manufacturing 25,267 $2,424 395,207 280,200 10,560 3.8% 6,162 $4,308 137,183 117,980 6,310 5.3% Manufacturing Coating, Engraving, Heat 3328 Treating, and Allied Activities $10,709 271,223 192,570 11,580 6.0% Agriculture, Construction, and Mining Machinery Manufacturing 3,064 $28,804 205,545 160,220 11,870 7.4% Industrial Machinery Manufacturing 3,845 $10,320 130,022 63,620 5,910 9.3% 3333 Commercial and Service Industry Machinery Manufacturing 2,296 $10,796 95,729 54,370 4,980 9.2% 82685 6,375 3332 18NOR7 Other Fabricated Metal Product Manufacturing 3331 ER18NO16.107</GPH> 3329 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 23:45 Nov 17, 2016 Production Employees srobinson on DSK5SPTVN1PROD with RULES6 82686 VerDate Sep<11>2014 Table V-1 Profile of General Industry Establishments Covered by the Final Standard for Subparts D and I (continued) Jkt 241001 PO 00000 NAICS NAICS Description Establishments Average Receipts per Establishment ($1,000)[a1 Total Employees Total No. of Production Employees[b1 Production Employees in At-Risk Occupations (Construction, Installation, Maintenance, and Repair Occupations)[c1 Share of Production Number Employees Ventilation, Heating, Air3334 Frm 00194 Conditioning, and Commercial Refrigeration Fmt 4701 Sfmt 4725 1,822 $22,423 151,175 115,510 13,270 11.5% 8,010 $3,631 167,558 139,940 5,180 3.7% 930 $45,616 102,482 69,130 6,330 9.2% 6,231 $13,746 285,029 172,550 16,160 9.4% 1,298 $50,267 99,137 30,390 3,720 12.2% 1,828 $35,437 151,847 42,640 5,650 13.3% 530 $14,503 17,191 13,180 990 7.5% 4,753 $25,667 362,859 214,750 13,070 6.1% 5,265 $25,181 384,966 142,990 13,920 9.7% 804 $7,705 27,288 19,090 1,520 8.0% Equipment Manufacturing 3335 Metalworking Machinery Manufacturing Engine, Turbine, and 3336 Power Transmission Equipment Manufacturing 3339 E:\FR\FM\18NOR7.SGM 3343 18NOR7 3344 3341 3342 Other General Purpose Machinery Manufacturing Computer and Peripheral Equipment Manufacturing Communications Equipment Manufacturing Audio and Video Equipment Manufacturing Semiconductor and Other Electronic Component Manufacturing Navigational, Measuring, 3345 Electromedical, and Control Instruments Manufacturing Manufacturing and 3346 ER18NO16.108</GPH> Reproducing Magnetic and Optical Media Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 23:45 Nov 17, 2016 Production Employees srobinson on DSK5SPTVN1PROD with RULES6 VerDate Sep<11>2014 Table V-1 Profile of General Industry Establishments Covered by the Final Standard for Subparts D and I (continued) Jkt 241001 PO 00000 NAICS NAICS Description 3351 Electric Lighting Equipment Manufacturing 3352 Establishments Average Receipts per Establishment ($1,000)[a] Total Employees Total No. of Production Employees[b] Production Employees in At-Risk Occupations (Construction, Installation, Maintenance, and Repair Occupations)[c] Share of Production Employees Number 40,520 2,520 6.2% Household Appliance Manufacturing 350 $68,995 65,666 55,620 3,050 5.5% 3353 Electrical Equipment Manufacturing 2,407 $17,529 138,332 91 '165 6,374 7.0% 3359 Other Electrical Equipment and Component Manufacturing 2,164 $23,393 144,746 95,620 6,800 7.1% 3361 Motor Vehicle Manufacturing 378 $683,671 196,493 174,525 21,551 12.3% 3362 Motor Vehicle Body and Trailer Manufacturing 2,187 $16,182 151,588 142,240 11,080 7.8% 3363 Motor Vehicle Parts Manufacturing 5,526 $36,411 593,630 490,500 50,450 10.3% 3364 Aerospace Product and Parts Manufacturing 1,725 $99,787 408,139 204,890 50,350 24.6% 3365 Railroad Rolling Stock Manufacturing 221 $58,054 28,712 20,000 3,490 17.5% Ship and Boat Building 1,771 $16,101 148,864 115,720 31,360 27.1% 3369 Other Transportation Equipment Manufacturing 1,049 $20,370 46,721 30,350 2,690 8.9% 3371 Household and Institutional Furniture and Kitchen Cabinet Manufacturing 16,566 $2,875 333,974 291,910 23,650 8.1% Sfmt 4725 E:\FR\FM\18NOR7.SGM 18NOR7 ER18NO16.109</GPH> 82687 57,515 Fmt 4701 $11,500 3366 Frm 00195 1,223 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 23:45 Nov 17, 2016 Production Employees srobinson on DSK5SPTVN1PROD with RULES6 82688 VerDate Sep<11>2014 Table V-1 Profile of General Industry Establishments Covered by the Final Standard for Subparts D and I (continued) Jkt 241001 PO 00000 NAICS NAICS Description 3372 (including Fixtures) Establishments Average Receipts per Establishment ($1,000)[a] Total Employees Total No. of Production Employees[b] Production Employees in At-Risk Occupations (Construction, Installation, Maintenance, and Repair Occupations)[c] Share of Production Employees Number Office Furniture 4,115 $6,637 141,000 99,860 6,980 7.0% Frm 00196 Manufacturing Fmt 4701 Sfmt 4725 E:\FR\FM\18NOR7.SGM 18NOR7 3379 Other Furniture Related Product Manufacturing 1,036 $9,739 42,427 35,850 1,650 4.6% 3391 Medical Equipment and Supplies Manufacturing 12,194 $6,578 316,789 191,430 7,210 3.8% 18,966 $3,825 364,059 221,800 15,530 7.0% 24,535 $23,333 355,828 154,330 50,180 32.5% 12,670 $6,231 153,866 38,080 3,320 8.7% 19,633 $8,055 264,252 130,910 14,470 11.1% 36,115 $12,095 705,551 138,430 71,910 51.9% 10,660 $19,824 160,366 65,070 3,670 5.6% 3399 Other Miscellaneous Manufacturing Motor Vehicle and Motor 4231 Vehicle Parts and Supplies Merchant Wholesalers 4232 Furniture and Home Furnishing Merchant Wholesalers Lumber and Other 4233 Construction Materials Merchant Wholesalers Professional and 4234 Commercial Equipment and Supplies Merchant Wholesalers Metal and Mineral 4235 ER18NO16.110</GPH> (except Petroleum) Merchant Wholesalers Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 23:45 Nov 17, 2016 Production Employees srobinson on DSK5SPTVN1PROD with RULES6 VerDate Sep<11>2014 Table V-1 Profile of General Industry Establishments Covered by the Final Standard for Subparts D and I (continued) Jkt 241001 PO 00000 NAICS 4236 Frm 00197 Fmt 4701 4237 NAICS Description Electrical and Electronic Goods Merchant Wholesalers Hardware, and Plumbing and Heating Equipment and Supplies Merchant Wholesalers Establishments Average Receipts per Establishment ($1,000)[a] Total Employees Total No. of Production Employees[b] Production Employees in At-Risk Occupations (Construction, Installation, Maintenance, and Repair Occupations)[c] Share of Production Employees Number 29,379 $14,085 449,905 73,200 25,160 34.4% 20,104 $6,009 232,006 71,570 17,670 24.7% 18NOR7 723,802 244,480 135,590 55.5% 4239 Miscellaneous Durable Goods Merchant Wholesalers 34,498 $6,872 349,701 123,540 13,550 11.0% 4241 Paper and Paper Product Merchant Wholesalers 11,448 $11,244 172,308 43,570 1,920 4.4% 4242 Drugs and Druggists' Sundries Merchant Wholesalers 7,649 $67,598 248,057 30,770 1,600 5.2% Apparel, Piece Goods, and Notions Merchant Wholesalers 16,218 $8,223 196,601 39,930 490 1.2% Grocery and Related Product Wholesalers 33,620 $19,115 768,342 371,100 17,420 4.7% Farm Product Raw Material Merchant Wholesalers 6,566 $20,313 61,349 31,270 1,720 5.5% 82689 $7,120 4245 E:\FR\FM\18NOR7.SGM 59,745 4244 Sfmt 4725 Machinery, Equipment, and Supplies Merchant Wholesalers 4243 ER18NO16.111</GPH> 4238 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 23:45 Nov 17, 2016 Production Employees srobinson on DSK5SPTVN1PROD with RULES6 82690 VerDate Sep<11>2014 Table V-1 Profile of General Industry Establishments Covered by the Final Standard for Subparts D and I (continued) Jkt 241001 PO 00000 NAICS NAICS Description Establishments Average Receipts per Establishment ($1 ,OOO)[a] Total Employees Total No. of Production Employees[b] Production Employees in At-Risk Occupations (Construction, Installation, Maintenance, and Repair Occupations)[c] Share of Production Number Employees Chemical and Allied Frm 00198 4246 Products Merchant Fmt 4701 $13,083 139,481 50,910 6,020 11.8% 7,024 $90,012 94,845 48,370 6,050 12.5% 4,160 $26,590 178,694 61,690 1,870 3.0% 31,414 $8,472 368,372 127,530 5,970 4.7% 56,485 $10,679 341,524 147,960 30,340 20.5% 51,236 $14,689 1,273,660 496,270 317,590 64.0% 17,030 $3,746 168,973 66,040 51,820 78.5% 59,065 $1,353 495,633 222,240 157,250 70.8% 29,239 $2,038 271,675 76,570 4,160 5.4% 36,246 $1,452 324,863 54,250 26,010 47.9% 52,470 $2,212 500,780 96,500 68,970 71.5% Petroleum and Petroleum 4247 Products Merchant Wholesalers Beer, Wine, and Distilled Sfmt 4725 4248 E:\FR\FM\18NOR7.SGM 4249 18NOR7 12,541 Wholesalers Alcoholic Beverage Merchant Wholesalers Miscellaneous Nondurable Goods Merchant Wholesalers Wholesale Electronic 4251 Markets and Agents and Brokers 4411 4412 Automobile Dealers Other Motor Vehicle Dealers Automotive Parts, 4413 Accessories, and Tire Stores 4421 4422 4431 ER18NO16.112</GPH> Furniture Stores Home Furnishings Stores Electronics and Appliance Stores Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 23:45 Nov 17, 2016 Production Employees srobinson on DSK5SPTVN1PROD with RULES6 VerDate Sep<11>2014 Table V-1 Profile of General Industry Establishments Covered by the Final Standard for Subparts D and I (continued) Jkt 241001 PO 00000 NAICS 4441 NAICS Description Building Material and Supplies Dealers Establishments Average Receipts per Establishment ($1,000)[a] Total Employees Total No. of Production Employees[b] Production Employees in At-Risk Occupations (Construction, Installation, Maintenance, and Repair Occupations)[c] Share of Production Number Employees Frm 00199 Fmt 4701 67,949 $4,282 1,202,392 244,830 46,280 18.9% 20,355 $2,060 171,569 49,020 16,250 33.1% 2,564,533 444,380 3,590 0.8% Lawn and Garden 4442 Equipment and Supplies Stores Sfmt 4725 E:\FR\FM\18NOR7.SGM 4451 Grocery Stores 92,315 $5,368 4452 Specialty Food Stores 28,281 $738 174,558 59,220 1,510 2.5% 30,435 $1,181 142,692 6,700 160 2.4% 89,406 $2,898 1,069,187 53,350 3,760 7.0% 115,533 $3,812 888,705 92,920 33,040 35.6% 1,278,939 35,380 820 2.3% 4453 Beer, Wine, and Liquor Stores 18NOR7 Health and Personal Care Stores 4471 Gasoline Stations 4481 Clothing Stores 99,325 $1,615 Shoe Stores 27,213 $976 206,338 1,760 0 0.0% 28,833 $1,103 162,880 15,920 1,690 10.6% 43,522 $1,453 455,576 38,720 17,950 46.4% 16,623 $1,663 184,118 3,370 200 5.9% 10,116 $28,241 1,619,833 127,280 14,480 11.4% 37,340 $8,240 1,277,639 188,410 24,990 13.3% 19,759 $327 93,779 19,120 190 1.0% 4482 4483 Jewelry, Luggage, and Leather Goods Stores Sporting Goods, Hobby, 4511 and Musical Instrument Stores 4512 4521 4529 4531 ER18NO16.113</GPH> Book, Periodical, and Music Stores Department Stores Other General Merchandise Stores Florists 82691 4461 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 23:45 Nov 17, 2016 Production Employees srobinson on DSK5SPTVN1PROD with RULES6 82692 VerDate Sep<11>2014 Table V-1 Profile of General Industry Establishments Covered by the Final Standard for Subparts D and I (continued) Jkt 241001 PO 00000 NAICS NAICS Description Establishments Average Receipts per Establishment ($1,000)[a] Total Employees Total No. of Production Employees[b] Production Employees in At-Risk Occupations (Construction, Installation, Maintenance, and Repair Occupations)[c] Share of Production Employees Number Office Supplies, 4532 Stationery, and Gift Frm 00200 Fmt 4701 Sfmt 4725 E:\FR\FM\18NOR7.SGM 18NOR7 40,674 $1,102 315,159 28,970 12,810 44.2% 17,733 $549 133,918 16,150 1,090 6.7% 45,208 $1 '153 270,971 41,930 16,920 40.4% 16,670 $10,146 268,328 33,930 2,460 7.3% 5,158 $1,445 49,446 29,110 15,870 54.5% 25,895 $2,470 193,784 76,550 22,820 29.8% 3,084 $41,157 435,853 142,390 38,230 26.8% 2,646 $5,640 44,795 27,270 7,930 29.1% 1,255 $22,924 48,180 22,190 450 2.0% 673 $8,950 20,767 19,130 540 2.8% 68,494 $2,165 998,697 839,850 48,700 5.8% 52,925 $1,396 477,700 347,130 24,240 7.0% 932 $3,403 52,912 34,260 4,150 Stores 4533 4539 4541 4542 4543 4811 4812 Used Merchandise Stores Other Miscellaneous Store Retailers Electronic Shopping and Mail-Order Houses Vending Machine Operators Direct Selling Establishments Scheduled Air Transportation Nonscheduled Air Transportation Deep Sea, Coastal, and 4831 Great Lakes Water Transportation 4832 4841 4842 4851 ER18NO16.114</GPH> Inland Water Transportation General Freight Trucking Specialized Freight Trucking Urban Transit Systems 12.1% Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 23:45 Nov 17, 2016 Production Employees srobinson on DSK5SPTVN1PROD with RULES6 VerDate Sep<11>2014 Table V-1 Profile of General Industry Establishments Covered by the Final Standard for Subparts D and I (continued) Jkt 241001 PO 00000 NAICS 4852 Frm 00201 4853 Fmt 4701 4854 4855 NAICS Description Interurban and Rural Bus Transportation Taxi and Limousine Service School and Employee Bus Transportation Charter Bus Industry Establishments Average Receipts per Establishment ($1,000)[a] Total Employees Total No. of Production Employees[b] Production Employees in At-Risk Occupations (Construction, Installation, Maintenance, and Repair Occupations)[c] Share of Production Number Employees Sfmt 4725 E:\FR\FM\18NOR7.SGM 18NOR7 508 $3,261 17,432 12,770 1,640 12.8% 7,493 $788 72,504 51,760 1,610 3.1% 4,673 $2,191 206,787 164,010 6,700 4.1% 1,247 $1,762 28,384 25,690 1,830 7.1% 3,469 $1 '104 62,604 53,240 1,530 2.9% 374 $15,628 8,347 4,330 1,510 34.9% 1,479 $14,061 24,683 13,690 5,220 38.1% 922 $8,320 9,415 4,170 1,000 24.0% 698 $1,295 9,690 5,050 360 7.1% $756 15,612 6,460 250 3.9% 203 $1,935 2,162 1'160 280 24.1% Other Transit and Ground 4859 Passenger Transportation 4861 4862 4869 4871 4872 4879 Pipeline Transportation of Crude Oil Pipeline Transportation of Natural Gas Other Pipeline Transportation Scenic and Sightseeing Transportation, Land Scenic and Sightseeing Transportation, Water Scenic and Sightseeing Transportation, Other 1,880 5,430 $3,678 3,676 98,340 47,000 47.8% 4882 ER18NO16.115</GPH> Support Activities for Air Transportation Support Activities for Rail Transportation 1,018 $3,282 308 20,480 7,660 37.4% 82693 4881 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 23:45 Nov 17, 2016 Production Employees srobinson on DSK5SPTVN1PROD with RULES6 82694 VerDate Sep<11>2014 Table V-1 Profile of General Industry Establishments Covered by the Final Standard for Subparts D and I (continued) Jkt 241001 PO 00000 NAICS 4883 Frm 00202 4884 Fmt 4701 4885 4889 NAICS Description Support Activities for Water Transportation Support Activities for Road Transportation Freight Transportation Arrangement Other Support Activities Sfmt 4725 for Transportation Establishments Average Receipts per Establishment ($1,000)[a] Total Employees Total No. of Production Employees[b] Production Employees in At-Risk Occupations {Construction, Installation, Maintenance, and Repair Occupations)[c] Share of Production Employees Number 2,330 $7,072 1,442 79,680 5,950 7.5% 10,178 $699 9,719 59,440 4,620 7.8% 17,903 $2,304 212,165 40,240 1,820 4.5% 1,707 $3,902 34,654 20,380 930 4.6% 528,177 398,690 13,900 3.5% 41,013 18,050 220 1.2% E:\FR\FM\18NOR7.SGM 4921 Couriers 9,116 $8,233.28 4922 Local Messengers and Local Delivery 4,729 $877.68 14,440 $2,766.70 679,077 434,980 21,630 5.0% 4931 Warehousing and Storage Newspaper, Periodical, 18NOR7 5111 Book, and Directory Publishers 23,082 $6,341.52 688,034 133,230 5,780 4.3% 5112 Software Publishers 8,426 $14,921.54 346,675 3,730 1,780 47.7% 21 '118 $3,770.90 298,598 13,830 2,900 21.0% 3,765 $3,436.51 22,049 810 150 18.5% 9,757 $5,673.89 252,294 4,420 2,860 64.7% 658 $63,287.42 41,674 22,490 21,960 97.6% 5121 5122 5151 Motion Picture and Video Industries Sound Recording Industries Radio and Television Broadcasting Cable and Other 5152 ER18NO16.116</GPH> Subscription Programming Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 23:45 Nov 17, 2016 Production Employees srobinson on DSK5SPTVN1PROD with RULES6 VerDate Sep<11>2014 Table V-1 Profile of General Industry Establishments Covered by the Final Standard for Subparts D and I (continued) Jkt 241001 PO 00000 NAICS NAICS Description Frm 00203 5161 Internet Publishing and Broadcasting 5171 Total Employees Total No. of Production Employees[b] Fmt 4701 Sfmt 4725 E:\FR\FM\18NOR7.SGM $4,317.76 46,627 280 80 28.6% Wired Telecommunications Carriers 27,445 $6,677.53 621,712 167,800 165,500 98.6% 5172 Wireless Telecommunications Carriers (except Satellite) 11,817 $14,132.48 277,622 11,720 11,410 97.4% 5173 Telecommunications Resellers 3,417 $4,228.61 34,973 30,000 29,620 98.7% 5174 Satellite Telecommunications 708 $8,810.15 13,149 2,660 2,660 100.0% 5175 Cable and Other Program Distribution 5,326 $19,054.52 240,038 50,700 48,890 96.4% 1,365 $3,116.63 14,428 1,510 1,510 100.0% 4,260 $7,432.83 71,307 2,100 2,050 97.6% 15,662 $4,566.21 375,474 9,020 3,520 39.0% 4,227 $1,719.25 54,659 2,830 460 16.3% $447,246.12 20,223 680 500 73.5% 5179 Other Telecommunications Internet Service Providers and Web Search Portals Data Processing, Hosting, and Related Services 5191 18NOR7 5181 Other Information Services 5211 Monetary Authorities Central Bank 104 82695 2,746 5182 ER18NO16.117</GPH> Establishments Average Receipts per Establishment ($1,000)[a] Production Employees in At-Risk Occupations (Construction, Installation, Maintenance, and Repair Occupations)[c] Share of Production Employees Number Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 23:45 Nov 17, 2016 Production Employees srobinson on DSK5SPTVN1PROD with RULES6 82696 VerDate Sep<11>2014 Table V-1 Profile of General Industry Establishments Covered by the Final Standard for Subparts D and I (continued) Jkt 241001 PO 00000 Frm 00204 NAICS NAICS Description 5221 Depository Credit Intermediation 5222 Establishments Average Receipts per Establishment ($1 ,DOD)[a] Total Employees Total No. of Production Employees[b] Production Employees in At-Risk Occupations (Construction, Installation, Maintenance, and Repair Occupations)[c] Share of Production Employees Number Fmt 4701 Sfmt 4725 E:\FR\FM\18NOR7.SGM 18NOR7 127,180 $6,151.85 2,137,764 10,890 3,500 32.1% Nondepository Credit Intermediation 58,786 $8,390.54 747,414 3,470 1,320 38.0% 5223 Activities Related to Credit Intermediation 46,750 $1,436.05 341,041 1,660 880 53.0% 5231 Securities and Commodity Contracts Intermediation and Brokerage 39,749 $10,955.04 528,722 1,280 640 50.0% 5232 Securities and Commodity Exchanges 8,600 250 40 16.0% 5239 Other Financial Investment Activities 49,924 $4,369.98 404,402 3,200 1,370 42.8% 5241 Insurance Carriers 33,598 $43,422.74 1,423,578 7,950 3,700 46.5% 5242 Agencies, Brokerages, and Other Insurance Related Activities 147,930 $1,152.22 903,366 3,770 1,270 33.7% 5259 Other Investment Pools and Funds 392 $11,418 3,678 $7,005 33,396 1,920 770 40.1% 5311 115,270 $1,233 539,169 248,410 155,760 62.7% 5312 111,028 $825 367,125 41,580 23,850 57.4% 5313 ER18NO16.118</GPH> Lessors of Real Estate Offices of Real Estate Agents and Brokers Activities Related to Real Estate 86,226 $940 647,869 161,840 98,000 60.6% Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 23:45 Nov 17, 2016 Production Employees srobinson on DSK5SPTVN1PROD with RULES6 VerDate Sep<11>2014 Table V-1 Profile of General Industry Establishments Covered by the Final Standard for Subparts D and I (continued) Jkt 241001 PO 00000 NAICS NAICS Description Establishments Average Receipts per Establishment ($1,000)[a] Total Employees Total No. of Production Employees[b] Production Employees in At-Risk Occupations (Construction, Installation, Maintenance, and Repair Occupations)[c] Share of Production Employees Number Frm 00205 Fmt 4701 Automotive Equipment Rental and Leasing 13,475 $3,354 199,872 93,580 25,910 27.7% 5322 Consumer Goods Rental 31,338 $752 237,074 40,220 7,370 18.3% 5323 General Rental Centers 5,435 $987 35,493 25,220 8,920 35.4% 5324 Commercial and Industrial Machinery and Equipment Rental and Leasing 14,798 $3,384 165,838 57,990 32,270 55.6% 5331 Lessors of Nonfinancial Intangible Assets (except Copyrighted Works) 2,568 $8,804 31,735 1,700 250 14.7% 5411 Legal Services 191,351 $1,263 1,206,577 5,070 580 11.4% 5412 Accounting, Tax Preparation, Bookkeeping, and Payroll Services 123,415 $962 1,357,368 18,010 5,310 29.5% 117,115 $2,186 1,434,803 120,660 60,330 50.0% 134,739 20,340 2,390 11.8% 1,297,710 30,580 22,640 74.0% Sfmt 4725 5321 E:\FR\FM\18NOR7.SGM 18NOR7 5413 Architectural, Engineering, and Related Services Specialized Design Services 34,783 $693 5415 Computer Systems Design and Related Services 116,769 $2,347 82697 5414 ER18NO16.119</GPH> Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 23:45 Nov 17, 2016 Production Employees srobinson on DSK5SPTVN1PROD with RULES6 Jkt 241001 PO 00000 NAICS NAICS Description Establishments Average Receipts per Establishment ($1,000)[a] Total Employees Total No. of Production Employees[b] Production Employees in At-Risk Occupations (Construction, Installation, Maintenance, and Repair Occupations)[c] Share of Production Employees Number Management, Scientific, 5416 and Technical Consulting Frm 00206 Fmt 4701 Sfmt 4725 E:\FR\FM\18NOR7.SGM 18NOR7 151,766 $1,277 1,015,109 57,950 24,420 42.1% 17,787 $6,372 688,052 30,300 11,360 37.5% 40,275 $2,066 445,590 43,730 8,000 18.3% 74,295 $873 599,993 23,470 3,830 16.3% 50,643 $10,031 3,121,402 171,840 55,500 32.3% 29,996 $2,184 472,690 31,760 10,840 34.1% 4,593 $4,664 189,275 42,480 16,330 38.4% 44,476 $4,382 5,131,446 1,781,420 261,030 14.7% 35,543 $1,739 766,237 30,920 3,890 12.6% 22,312 $1,876 243,943 8,790 1,270 14.4% 25,223 $1,677 777,680 67,570 56,050 83.0% 179,825 $598 1,722,595 1,664,320 59,570 3.6% Services 5417 5418 Scientific Research and Development Services Advertising and Related Services Other Professional, 5419 Scientific, and Technical Services Management of 5511 Companies and Enterprises 5611 5612 5613 5615 5616 5617 Office Administrative Services Facilities Support Services Employment Services Business Support Services Travel Arrangement and Reservation Services Investigation and Security Services Services to Buildings and Dwellings Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 23:45 Nov 17, 2016 Production Employees 5614 ER18NO16.120</GPH> 82698 VerDate Sep<11>2014 Table V-1 Profile of General Industry Establishments Covered by the Final Standard for Subparts D and I (continued) srobinson on DSK5SPTVN1PROD with RULES6 VerDate Sep<11>2014 Table V-1 Profile of General Industry Establishments Covered by the Final Standard for Subparts D and I (continued) Jkt 241001 PO 00000 NAICS NAICS Description Establishments Average Receipts per Establishment {$1,000}[a] Total Employees Total No. of Production Employees[b] Production Employees in At-Risk Occupations (Construction, Installation, Maintenance, and Repair Occupations)[c] Share of Production Employees Number Frm 00207 Fmt 4701 Sfmt 4725 21,075 $1,881 324,602 108,800 19,230 17.7% Waste Collection 9,857 $3,975 185,047 110,500 12,720 11.5% 5622 Waste Treatment and Disposal 2,729 $5,199 56,755 69,650 18,240 26.2% 5629 Remediation and Other Waste Management Services 8,872 $1,989 113,391 83,210 58,560 70.4% 21,066 $2,943 827,165 766,170 100,280 13.1% 862 $8,099 80,568 40,630 12,020 29.6% 1,572,333 202,660 69,670 34.4% 5619 Other Support Services 5621 6111 Elementary and Secondary Schools 4,022 $41,214 6114 Business Schools and Computer and Management Training 7,640 $1,243 65,818 1,770 510 28.8% 6115 Technical and Trade Schools 8,019 $1,598 119,020 11,200 3,780 33.8% 6116 Other Schools and Instruction 38,506 $430 302,908 4,920 1,570 31.9% Educational Support Services 6,781 $1,574 71,573 1,900 470 24.7% Offices of Physicians 219,986 $1,579 2,169,682 22,650 3,150 13.9% Offices of Dentists 126,392 $742 824,770 12,940 520 4.0% 6213 Offices of Other Health Practitioners 124,498 $419 614,171 8,790 600 6.8% 82699 Colleges, Universities, and Professional Schools 6212 18NOR7 6113 6211 E:\FR\FM\18NOR7.SGM Junior Colleges 6117 ER18NO16.121</GPH> 6112 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 23:45 Nov 17, 2016 Production Employees srobinson on DSK5SPTVN1PROD with RULES6 82700 VerDate Sep<11>2014 Table V-1 Profile of General Industry Establishments Covered by the Final Standard for Subparts D and I (continued) Jkt 241001 PO 00000 Average Receipts per Establishment NAICS NAICS Description Establishments ($1 ,OOO)[a] Total Employees Total No. of Production Employees[b] Production Employees in At-Risk Occupations (Construction, Installation, Maintenance, and Repair Occupations)[c] Share of Production Number Employees Frm 00208 Fmt 4701 Sfmt 4725 E:\FR\FM\18NOR7.SGM 18NOR7 6214 Outpatient Care Centers 29,644 $2,685 695,863 11,810 3,680 31.2% 6215 Medical and Diagnostic Laboratories 12,798 $2,953 221,709 2,270 490 21.6% 24,443 $2,096 1,021,573 5,970 1,190 19.9% 9,422 $2,926 269,271 18,900 2,670 14.1% 5,404 $120,585 5,041,848 285,300 65,370 22.9% 718 $24,937 216,343 17,010 5,560 32.7% 1,230 $21,388 219,627 11,000 2,520 22.9% 1,646,321 163,850 21,780 13.3% 6216 6219 Home Health Care Services Other Ambulatory Health Care Services 6221 General Medical and Surgical Hospitals 6222 Substance Abuse Psychiatric and Hospitals Specialty (except 6223 6231 Psychiatric and Substance Abuse) Hospitals Nursing Care Facilities 17,132 $5,569 31,571 $786 557,907 19,920 5,110 25.7% 20,351 $1,872 685,024 75,920 14,370 18.9% 6,552 $1,262 153,881 6,560 2,290 34.9% Residential Mental 6232 Retardation, Mental Health and Substance Abuse Facilities 6233 6239 ER18NO16.122</GPH> Community Care Facilities for the Elderly Other Residential Care Facilities Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 23:45 Nov 17, 2016 Production Employees srobinson on DSK5SPTVN1PROD with RULES6 VerDate Sep<11>2014 Table V-1 Profile of General Industry Establishments Covered by the Final Standard for Subparts D and I (continued) Jkt 241001 PO 00000 NAICS 6241 NAICS Description Individual and Family Services Establishments Average Receipts per Establishment ($1,000)[a] Total Employees Total No. of Production Employees[b] Production Employees in At-Risk Occupations (Construction, Installation, Maintenance, and Repair Occupations)[c] Share of Production Number Employees 57,712 $1,089 1'108, 173 44,900 5,560 12.4% Frm 00209 Fmt 4701 Sfmt 4725 E:\FR\FM\18NOR7.SGM 6242 Community Food and Housing, and Emergency and Other Relief Services 13,710 $1,630 167,691 13,300 3,550 26.7% 6243 Vocational Rehabilitation Services 7,905 $1,590 330,145 71 '170 3,480 4.9% 6244 Child Day Care Services 74,763 $396 853,648 18,050 1,760 9.8% 7111 Performing Arts Companies 9,453 $1,502 134,434 7,930 3,150 39.7% 7112 Spectator Sports 4,631 $6,550 126,092 19,190 7,020 36.6% 7113 Promoters of Performing Arts, Sports, and Similar 6,367 $2,485 112,354 14,710 3,530 24.0% 3,722 $1,290 17,420 220 90 40.9% $664 45,772 3,360 710 21.1% Events Independent Artists, Writers, and Performers 7121 Museums, Historical Sites, and Similar Institutions 7,312 $1,780 128,539 14,880 4,420 29.7% 7131 Amusement Parks and Arcades 3,097 $4,407 128,369 21,320 9,590 45.0% 7132 Gambling Industries 2,729 $11,700 205,307 18,360 5,240 28.5% ER18NO16.123</GPH> 20,087 82701 7115 18NOR7 7114 Agents and Managers for Artists, Athletes, Entertainers, and Other Public Figures Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 23:45 Nov 17, 2016 Production Employees srobinson on DSK5SPTVN1PROD with RULES6 82702 VerDate Sep<11>2014 Table V-1 Profile of General Industry Establishments Covered by the Final Standard for Subparts D and I (continued) Jkt 241001 PO 00000 NAICS NAICS Description Establishments Average Receipts per Establishment ($1 ,DOD)[a] Total Employees Total No. of Production Employees[b] Production Employees in At-Risk Occupations (Construction, Installation, Maintenance, and Repair Occupations)[ c] Share of Production Employees Number Frm 00210 7139 Other Amusement and Recreation Industries 67,824 $869 1 '110,280 211,410 44,390 21.0% 7211 Traveler Accommodation 54,268 $3,117 1,856,110 663,680 80,540 12.1% RV (Recreational Fmt 4701 7212 Vehicle) Parks and Sfmt 4725 E:\FR\FM\18NOR7.SGM 18NOR7 7,434 $594 39,717 10,580 5,830 55.1% 2,201 $426 11,727 3,580 490 13.7% 219,472 $876 4,579,941 57,180 3,580 6.3% 266,844 $700 4,136,741 197,820 4,080 2.1% 35,322 $1,087 575,579 50,990 6,610 13.0% 46,948 $394 365,049 6,420 690 10.7% 166,369 $538 893,198 710,480 457,970 64.5% 12,917 $1,966 135,243 64,330 56,920 88.5% 23,897 $1,333 199,239 136,820 90,410 66.1% Recreational Camps 7213 7221 7222 7223 7224 Rooming and Boarding Houses Full-Service Restaurants Limited-Service Eating Places Special Food Services Drinking Places (Alcoholic Beverages) 8111 Automotive Repair and Maintenance 8112 Equipment Repair and Electronic and Precision Maintenance Commercial and Industrial Machinery and 8113 Equipment (except Automotive and Electronic) Repair and Maintenance ER18NO16.124</GPH> Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 23:45 Nov 17, 2016 Production Employees srobinson on DSK5SPTVN1PROD with RULES6 Production Employees Jkt 241001 Frm 00211 Fmt 4701 Sfmt 4700 18NOR7 ER18NO16.125</GPH> NAICS Description Establishments Total Employees Total No. of Production Employees[b] 8114 Personal and Household Goods Repair and Maintenance 22,948 $406 95,272 58,360 29,940 51.3% 8121 Personal Care Services 113,125 $239 616,538 7,010 420 6.0% 8122 Death Care Services 21,434 $713 136,928 29,670 1,790 6.0% 8123 Dry-cleaning and Laundry Services 41,331 $601 374,356 241,120 6,800 2.8% 8129 Other Personal Services 36,640 $511 252,462 106,250 3,680 3.5% 8131 Religious Organizations 180,304 $698 1,691 '182 25,010 4,940 19.8% 8132 Grantmaking and Giving Services 16,356 $5,742 146,709 3,650 700 19.2% 8133 Social Advocacy Organizations 15,431 $1,228 128,522 8,780 2,340 26.7% 8134 Civic and Social Organizations 29,817 $623 330,219 27,510 4,540 16.5% 8139 Business, Professional, Labor, Political, and Similar Organizations 63,683 $1,222 519,905 42,440 18,030 42.5% 112,328,837 27,787,879 5,226,602 18.8% Totals 6,855,903 [a] Estimated based on 2007 receipts and establishment data from U.S. Census Bureau, Statistics of U.S. 2007. [b] These employment estimates are based on applying the share of workers employed in building and grounds; construction; installation, maintenance, and repair; production; and material-moving occupations as reported by BLS, Occupational Employment Statistics, 2007 to total employment levels as reported by U.S. Census Bureau, Statistics of U.S. Businesses, 2007. [c] Bureau of Labor Statistics, Occupational Employment Statistics, 2007. [d] NA: Data not available; term used throughout this FEA. Source: U.S. Department of Labor, OSHA, Directorate of Standards and Guidance, Office of Regulatory Analysis-Safety. 82703 and other working surfaces are most likely to directly affect employees E:\FR\FM\18NOR7.SGM The parts of the final standard that cover ladders, scaffolds, manhole steps, PO 00000 NAICS Average Receipts per Establishment ($1,000)[a] Production Employees in At-Risk Occupations (Construction, Installation, Maintenance, and Repair Occupations)[c] Share of Production Number Employees Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 23:45 Nov 17, 2016 BILLING CODE 4510–29–P VerDate Sep<11>2014 Table V-1 Profile of General Industry Establishments Covered by the Final Standard for Subparts D and I (continued) 82704 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations engaged in maintenance and related activities. To estimate the numbers of such employees, OSHA relied on data from the Bureau of Labor Statistics’ (BLS) Occupational Employment Statistics (OES) survey documenting employment by detailed occupation using 4-digit NAICS industry codes. The BLS data represent the only source of industry-specific statistics on detailed occupational employment totals. OSHA used these data to estimate the numbers of employees in construction and in maintenance, installation, and repair occupations in each industry, as well as the overall number of production employees.104 As shown in Table V–1, srobinson on DSK5SPTVN1PROD with RULES6 104 Production workers include those in building and grounds; construction; installation, maintenance, and repair; production; and material moving occupations. It is possible that employees in construction and related occupations, even though not employed by establishments in construction industries, might perform work regulated by OSHA under its construction standards in 29 CFR part 1926. Therefore, the employers of these workers, depending on the type of work performed, also may have to meet the requirements for fall protection and walking- VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 an estimated 27.8 million employees are in production occupations, while an estimated 5.2 million are in construction, installation, and maintenance and repair occupations. 3. Profile of Potentially Affected Small Entities To assemble the data necessary for a screening analysis to determine potential impacts on small entities as prescribed by the Regulatory Flexibility Act, OSHA developed profiles of small entities in the industries covered by the final OSHA standards for subparts D and I. OSHA used the Small Business Administration’s (SBA) small business criterion for each industry and Census data (taken from the Statistics of U.S. Businesses) on employment, payroll, and receipts by entity size to estimate working surfaces specified in the construction standards. To the extent that these workers may be subject to both the general industry fall protection standard and the construction fall protection standard, the final rule increases harmonization with the construction fall protection standards, rather than generating new costs or worker-safety benefits. PO 00000 Frm 00212 Fmt 4701 Sfmt 4700 the numbers of entities and associated employment meeting the SBA definitions. When the SBA specified the small business criterion as a revenue threshold, OSHA used the Census data to associate that revenue with a given employment size. The first column of Table V–2 provides OSHA’s estimates of SBA-based employment-size criteria. This table shows, for each NAICS industry code, the number of entities and employees, and average receipts per entity, for business units that meet the employment-size criterion. OSHA estimated the numbers of at-risk employees by applying the percentage of at-risk small-entity employees estimated in the PEA to total estimated small-entity employment, after deriving the latter estimate from updated (2007) Census data on the number of affected small entities. OSHA also used the Census data to develop a profile of entities that employ fewer than 20 employees. Table V–3 provides these estimates. BILLING CODE 4510–19–P E:\FR\FM\18NOR7.SGM 18NOR7 srobinson on DSK5SPTVN1PROD with RULES6 VerDate Sep<11>2014 Estimated Employment in At-Risk Production Jkt 241001 Occupations (Construction, SBA Employment Installation, PO 00000 Size or Annual Receipts NAICS Frm 00213 Fmt 4701 Sfmt 4725 E:\FR\FM\18NOR7.SGM 18NOR7 Employees Occupations) [c) 389 $1,203,946 1,853 NA 500 169 $978,953 1,521 NA 1133 Forest Nurseries and Gathering of Forest Products Logging 500 9,714 $985,859 57,067 2,464 1141 Fishing 20 2,039 $1,071,290 2,601 NA 1142 Hunting and Trapping 20 323 $696,350 812 NA 1153 Support Activities for Forestry 100 1,641 $612,625 9,180 NA 2111 Oil and Gas Extraction 500 6,453 $10,209,466 45,332 9,245 20 1,551 $46,138,696 8,806 2,944 2212 Electric Power Generation, Transmission and Distribution Natural Gas Distribution 20 441 $60,450,299 2,127 639 2213 Water, Sewage and Other Systems 100 3,918 $1,197,612 19,257 4,235 3111 Animal Food Manufacturing 500 1'173 $11,493,951 24,430 1,746 3112 Grain and Oilseed Milling 500 461 $26,376,108 16,640 1,450 500 1,587 $4,747,662 68,183 6,182 500 1,221 $18,280,614 45,938 3,318 500 1,031 $22,265,319 28,609 1,522 500 3,109 $11,500,053 114,645 5,791 1132 2211 3115 Sugar and Confectionery Product Manufacturing Fruit and Vegetable Preserving and Specialty Food Manufacturing Dairy Product Manufacturing 3116 Animal Slaughtering and Processing 3113 3114 Criterion[a] Entities[b] Entity[b] Total Maintenance, and Repair 500 1131 NAICS Description Timber Tract Operations Average Receipts per Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 23:45 Nov 17, 2016 Table V-2 Profile of General Industry Small Business Entities Covered by the Final Standard for Subparts D and I 82705 ER18NO16.126</GPH> srobinson on DSK5SPTVN1PROD with RULES6 82706 VerDate Sep<11>2014 Table V-2 Profile of General Industry Small Business Entities Covered by the Final Standard for Subparts D and I {continued) At-Risk Production Jkt 241001 Occupations (Construction, SBA Employment Installation, PO 00000 Size or Annual Average Receipts per Receipts NAICS NAICS Description Criterion[a] Maintenance, Entities[b] Entity[b] and Repair Total Employees Occupations) [c] Frm 00214 Fmt 4701 3117 Seafood Product Preparation and Packaging 500 574 $10,176,408 8,943 378 3118 Bakeries and Tortilla Manufacturing 500 9,408 $1,712,822 288,414 17,004 3119 Other Food Manufacturing 500 2,761 $9,860,693 45,756 3,854 3121 Beverage Manufacturing 500 3,338 $5,864,184 101,892 14,812 2,215 289 Sfmt 4725 E:\FR\FM\18NOR7.SGM 3122 Tobacco Manufacturing 500 72 $20,077,861 3131 Fiber, Yam, and Thread Mills 500 281 $7,063,009 9,472 288 Fabric Mills 500 1,107 $7,614,212 24,459 3,082 500 1,259 $4,778,704 16,917 705 3132 3133 Textile and Fabric Finishing and Fabric Coating Mills 18NOR7 3141 Textile Furnishings Mills 500 2,418 $1,906,425 48,147 4,121 3149 Other Textile Product Mills 500 3,994 $1,883,709 60,009 1,723 3151 Apparel Knitting Mills 500 433 $3,537,748 14,417 2,384 3152 Cut and Sew Apparel Manufacturing 500 8,772 $2,157,055 130,265 1,124 500 884 $1,466,456 13,021 1,169 3159 Apparel Accessories and Other Apparel Manufacturing 3161 Leather and Hide Tanning and Finishing 500 230 $4,184,696 4,203 236 3162 Footwear Manufacturing 500 274 $2,586,898 5,656 201 500 821 $2,272,834 12,685 127 500 3,662 $5,030,554 82,529 114 3169 3211 ER18NO16.127</GPH> Other Leather and Allied Product Manufacturing Sawmills and Wood Preservation Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 23:45 Nov 17, 2016 Estimated Employment in srobinson on DSK5SPTVN1PROD with RULES6 VerDate Sep<11>2014 Table V-2 Profile of General Industry Small Business Entities Covered by the Final Standard for Subparts D and I (continued) At-Risk Production Occupations Jkt 241001 (Construction, Installation, PO 00000 SBA Employment Size or Annual NAICS NAICS Description Receipts per Criterion[a] Entities[b] Entity[b] Maintenance, and Repair Total Employees Occupations} [c] 3212 3219 Other Wood Product Manufacturing 500 9,405 $3,235,790 196,354 6,380 Fmt 4701 3221 Pulp, Paper, and Paperboard Mills 750 217 $35,652,696 81,068 19,581 3222 Converted Paper Product Manufacturing 750 2,941 $12,426,409 244,731 18,291 3231 Printing and Related Support Activities 500 31,414 $1,868,047 438,816 15,574 3241 Petroleum and Coal Products Manufacturing 500 1,096 $43,923,678 25,848 7,384 3251 Basic Chemical Manufacturing 500 1,290 $38,377,584 39,224 4,007 500 685 $29,953,311 64,863 4,048 500 633 $10,129,959 11,603 8,778 Sfmt 4725 Frm 00215 Veneer, Plywood, and Engineered Wood Average Receipts E:\FR\FM\18NOR7.SGM 3252 3253 Product Manufacturing Resin, Synthetic Rubber, and Artificial Synthetic Fibers and Filaments Manufacturing Pesticide, Fertilizer, and Other Agricultural Chemical Manufacturing 500 1,444 $6,305,821 62,374 6,544 18NOR7 3254 Pharmaceutical and Medicine Manufacturing 500 1,385 $15,311,811 52,038 1,465 3255 Paint, Coating, and Adhesive Manufacturing 500 1,446 $7,227,237 30,360 2,309 3256 Soap, Cleaning Compound, and Toilet Preparation Manufacturing 500 1,938 $10,379,385 46,183 1,208 500 2,068 $7,196,531 46,088 2,965 3259 Other Chemical Product and Preparation Manufacturing 500 9,146 $8,186,170 342,785 19,005 3262 Rubber Product Manufacturing 500 1,628 $8,522,571 52,434 3,355 3271 ER18NO16.128</GPH> Plastics Product Manufacturing Clay Product and Refractory Manufacturing 500 1,304 $3,357,373 25,229 1,994 82707 3261 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 23:45 Nov 17, 2016 Estimated Employment in srobinson on DSK5SPTVN1PROD with RULES6 82708 VerDate Sep<11>2014 Table V-2 Profile of General Industry Small Business Entities Covered by the Final Standard for Subparts D and I (continued) Glass and Glass Product Manufacturing 500 1,726 $3,067,226 30,210 2,842 3273 Cement and Concrete Product Manufacturing 500 5,020 $6,750,795 129,383 19,243 3274 Lime and Gypsum Product Manufacturing 500 202 $6,856,391 3,423 623 Fmt 4701 3279 500 2,937 $3,124,333 52,410 6,847 750 730 $25,589,719 87,419 17,941 1,000 497 $23,334,183 40,337 3,591 750 421 $22,520,990 49,735 7,454 750 676 $24,254,840 44,394 4,551 PO 00000 NAICS Sfmt 4725 3311 3312 E:\FR\FM\18NOR7.SGM 3313 3314 NAICS Description Other Nonmetallic Mineral Product Manufacturing Iron and Steel Mills and Ferroalloy Manufacturing Steel Product Manufacturing from Purchased Steel Alumina and Aluminum Production and Processing Nonferrous Metal (except Aluminum) Production and Processing SBA Employment Size or Annual Receipts Criterion[a] Entities[b] Average Receipts per Entity[b] 18NOR7 3315 Foundries 500 1,796 $9,587,227 76,306 6,324 3321 Forging and Stamping 500 2,301 $9,378,614 82,843 4,872 3322 Cutlery and Handtool Manufacturing 500 1,333 $4,684,161 28,710 1'114 500 12,517 $4,646,354 276,206 26,024 500 1,214 $8,914,855 43,393 NA 3323 3324 Architectural and Structural Metals Manufacturing Boiler, Tank, and Shipping Container Manufacturing 3325 500 673 $6,541,624 18,729 660 3326 ER18NO16.129</GPH> Hardware Manufacturing Spring and Wire Product Manufacturing 500 1,395 $4,646,072 38,974 1,351 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 3272 Jkt 241001 Frm 00216 23:45 Nov 17, 2016 Total Employees Estimated Employment in At-Risk Production Occupations (Construction, Installation, Maintenance, and Repair Occupations) [c] srobinson on DSK5SPTVN1PROD with RULES6 VerDate Sep<11>2014 Table V-2 Profile of General Industry Small Business Entities Covered by the Final Standard for Subparts D and I (continued) At-Risk Production Jkt 241001 Occupations (Construction, SBA Employment Installation, PO 00000 Size or Annual Average Receipts per Receipts NAICS Frm 00217 3327 3328 Fmt 4701 3329 Sfmt 4725 3331 3332 E:\FR\FM\18NOR7.SGM 3333 NAICS Description Machine Shops; Tumed Product; and Screw, Nut, and Bolt Manufacturing Coating, Engraving, Heat Treating, and Allied Activities Other Fabricated Metal Product Manufacturing Agriculture, Construction, and Mining Machinery Manufacturing Industrial Machinery Manufacturing Commercial and Service Industry Machinery Manufacturing Criterion[a] Maintenance, Entities[b] Entity[b] and Repair Total Employees Occupations) [c] 18NOR7 500 24,638 $2,055,754 350,609 8,633 500 5,526 $3,605,034 114,874 4,720 500 5,625 $5,096,298 129,261 7,382 500 2,640 $9,370,238 76,342 4,175 500 3,510 $5,062,247 84,087 4,092 500 2,013 $5,155,096 49,422 2,527 500 1,397 $7,687,392 47,346 4,071 500 7,595 $2,688,982 136,043 3,530 500 704 $10,107,295 23,050 1,835 500 5,361 $6,204,507 136,111 7,822 1000 1,184 $8,999,667 90,336 1,919 Ventilation, Heating, Air-Conditioning, and 3334 Commercial Refrigeration Equipment Manufacturing 3335 3336 3339 3341 Metalworking Machinery Manufacturing Engine, Turbine, and Power Transmission Equipment Manufacturing Other General Purpose Machinery Manufacturing Computer and Peripheral Equipment Manufacturing 3342 Communications Equipment Manufacturing 750 1,517 $10,202,121 113,536 4,448 3343 Audio and Video Equipment Manufacturing 750 496 $6,870,034 16,243 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 23:45 Nov 17, 2016 Estimated Employment in 484 82709 ER18NO16.130</GPH> srobinson on DSK5SPTVN1PROD with RULES6 82710 VerDate Sep<11>2014 Table V-2 Profile of General Industry Small Business Entities Covered by the Final Standard for Subparts D and I {continued) At-Risk Production Jkt 241001 Occupations (Construction, SBA Employment Installation, PO 00000 Size or Annual NAICS Frm 00218 3344 3345 Fmt 4701 3346 NAICS Description Semiconductor and Other Electronic Component Manufacturing Navigational, Measuring, Electromedical, and Control Instruments Manufacturing Manufacturing and Reproducing Magnetic and Optical Media Average Receipts Receipts per Criterion[a] Entities[b] Entity[b] Maintenance, and Repair Total Employees Occupations) [c] 500 4,039 $7,260,568 137,336 4,003 500 4,395 $7,395,335 102,427 3,141 500 750 $2,906,879 13,084 560 Sfmt 4725 E:\FR\FM\18NOR7.SGM 3351 Electric Lighting Equipment Manufacturing 500 1'102 $6,643,417 30,592 1,519 3352 Household Appliance Manufacturing 500 279 $6,797,928 8,485 369 3353 Electrical Equipment Manufacturing 500 1,971 $6,751,929 109,035 5,017 500 1,743 $12,491,840 61,363 2,801 276 $17,156,736 180,996 18,472 3359 Other Electrical Equipment and Component Manufacturing 1,000 Motor Vehicle Manufacturing 3362 Motor Vehicle Body and Trailer Manufacturing 500 1,851 $8,209,713 65,570 4,562 3363 Motor Vehicle Parts Manufacturing 500 4,227 $13,098,070 167,903 12,979 3364 Aerospace Product and Parts Manufacturing 1,000 1,275 $10,267,905 364,351 37,310 3365 Railroad Rolling Stock Manufacturing 1000 141 $10,698,766 24,859 3,892 3366 18NOR7 3361 Ship and Boat Building 500 1,612 $7,121,573 44,862 8,624 500 986 $5,566,299 19,177 1,144 500 16,089 $1,588,275 213,696 13,410 3369 3371 ER18NO16.131</GPH> Other Transportation Equipment Manufacturing Household and Institutional Fumiture and Kitchen Cabinet Manufacturing Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 23:45 Nov 17, 2016 Estimated Employment in srobinson on DSK5SPTVN1PROD with RULES6 VerDate Sep<11>2014 Table V-2 Profile of General Industry Small Business Entities Covered by the Final Standard for Subparts D and I (continued) Jkt 241001 PO 00000 Frm 00219 3372 NAICS Description Office Furniture (including Fixtures) Manufacturing Entities[b] Average Receipts per Entity[b] Total Employees 500 3,866 $4,005,842 95,911 4,836 Fmt 4701 Sfmt 4725 E:\FR\FM\18NOR7.SGM 18NOR7 3379 Other Furniture Related Product Manufacturing 500 888 $5,630,860 24,364 792 3391 Medical Equipment and Supplies Manufacturing 500 11,227 $2,581,520 146,894 3,307 3399 Other Miscellaneous Manufacturing 500 18,259 $2,391,579 267,657 12,600 100 16,942 $5,214,828 158,506 22,863 100 10,468 $5,505,483 92,798 2,424 100 12,190 $5,017,184 126,964 6,694 100 25,371 $3,924,436 216,960 22,318 100 6,957 $11,382,651 75,895 2,060 100 19,024 $6,108,282 174,753 12,815 100 10,751 $4,408,710 112,753 8,440 100 41,809 $4,727,813 397,348 79,924 4231 4232 4233 4234 4235 4236 Motor Vehicle and Motor Vehicle Parts and Supplies Merchant Wholesalers Furniture and Home Furnishing Merchant Wholesalers Lumber and Other Construction Materials Merchant Wholesalers Professional and Commercial Equipment and Supplies Merchant Wholesalers Metal and Mineral (except Petroleum) Merchant Wholesalers Electrical and Electronic Goods Merchant Wholesalers Hardware, and Plumbing and Heating 4237 Equipment and Supplies Merchant Wholesalers 4238 Machinery, Equipment, and Supplies Merchant Wholesalers 82711 ER18NO16.132</GPH> Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 23:45 Nov 17, 2016 NAICS SBA Employment Size or Annual Receipts Criterion[a] Estimated Employment in At-Risk Production Occupations (Construction, Installation, Maintenance, and Repair Occupations) [c] srobinson on DSK5SPTVN1PROD with RULES6 82712 VerDate Sep<11>2014 Table V-2 Profile of General Industry Small Business Entities Covered by the Final Standard for Subparts D and I (continued) At-Risk Production Jkt 241001 Occupations (Construction, SBA Employment Installation, Size or Annual Average PO 00000 Receipts per Receipts NAICS Frm 00220 4239 4241 Fmt 4701 4242 Sfmt 4725 4243 4244 E:\FR\FM\18NOR7.SGM 4245 4246 4247 18NOR7 4248 4249 4251 NAICS Description Miscellaneous Durable Goods Merchant Wholesalers Paper and Paper Product Merchant Wholesalers Drugs and Druggists' Sundries Merchant Wholesalers Apparel, Piece Goods, and Notions Merchant Wholesalers Grocery and Related Product Wholesalers Farm Product Raw Material Merchant Wholesalers Chemical and Allied Products Merchant Wholesalers Petroleum and Petroleum Products Merchant Wholesalers Beer, Wine, and Distilled Alcoholic Beverage Merchant Wholesalers Miscellaneous Nondurable Goods Merchant Wholesalers Wholesale Electronic Markets and Agents and Brokers Criterion[a] Maintenance, Entities[b] Entity[b] and Repair Total Employees Occupations) [c] 100 30,313 $5,269,697 206,395 10,859 100 8,752 $4,176,774 74,791 977 100 5,838 $5,856,288 47,228 338 100 14,426 $5,680,399 107,539 382 100 26,532 $7,708,002 251,866 5,824 100 3,844 $14,484,724 38,877 823 100 7,934 $6,324,060 65,806 2,690 100 4,478 $45,709,900 49,559 3,093 100 2,999 $10,952,519 53,042 662 100 24,660 $3,695,365 175,492 2,869 100 53,561 $7,231,541 205,641 8,062 4411 20 44,316 $10,000,839 187,350 47,515 4412 ER18NO16.133</GPH> Automobile Dealers Other Motor Vehicle Dealers 100 15,120 $3,771,504 135,969 40,929 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 23:45 Nov 17, 2016 Estimated Employment in srobinson on DSK5SPTVN1PROD with RULES6 VerDate Sep<11>2014 Table V-2 Profile of General Industry Small Business Entities Covered by the Final Standard for Subparts D and I (continued) Jkt 241001 PO 00000 Frm 00221 4413 NAICS Description Automotive Parts, Accessories, and Tire Stores Entities[b] Average Receipts per Entity[b] Total Employees 100 32,330 $1,326,586 216,682 69,213 Fmt 4701 Sfmt 4725 4421 Furniture Stores 100 19,802 $1,791,250 152,175 2,020 4422 Home Furnishings Stores 100 26,202 $1,147,520 143,330 12,668 4431 Electronics and Appliance Stores 20 30,335 $1,280,230 119,295 14,960 4441 Building Material and Supplies Dealers 100 45,176 $2,578,176 429,244 16,981 100 16,635 $2,033,779 128,453 13,246 4442 Lawn and Garden Equipment and Supplies Stores Grocery Stores 100 65,430 $1,691,208 513,196 794 4452 Specialty Food Stores 100 23,426 $756,131 131,540 587 4453 Beer, Wine, and Liquor Stores 100 26,833 $1 '134,826 122,074 106 4461 Health and Personal Care Stores 100 43,539 $1,855,531 309,116 1,177 4471 Gasoline Stations 100 65,359 $3,601,756 447,962 16,468 18NOR7 4481 Clothing Stores 100 40,794 $816,092 212,226 131 4482 Shoe Stores 100 6,641 $1,032,767 42,316 7 4483 Jewelry, Luggage, and Leather Goods Stores 100 19,038 $990,006 84,653 867 100 31,702 $823,248 180,867 6,808 $736,118 51,358 47 $1,609,330 2,431 18 $844,811 53,983 886 4511 Sporting Goods, Hobby, and Musical Instrument Stores 4512 100 9,053 4521 Department Stores 100 394 4529 ER18NO16.134</GPH> Book, Periodical, and Music Stores Other General Merchandise Stores 100 10,002 82713 E:\FR\FM\18NOR7.SGM 4451 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 23:45 Nov 17, 2016 NAICS SBA Employment Size or Annual Receipts Criterion[a] Estimated Employment in At-Risk Production Occupations (Construction, Installation, Maintenance, and Repair Occupations) [c] srobinson on DSK5SPTVN1PROD with RULES6 82714 VerDate Sep<11>2014 Table V-2 Profile of General Industry Small Business Entities Covered by the Final Standard for Subparts D and I (continued) Employment in At-Risk Production Jkt 241001 Occupations (Construction, SBA Employment Installation, PO 00000 Size or Annual Average Receipts per Receipts NAICS NAICS Description Criterion[a] Maintenance, and Repair Entities[b] Entity[b] Total Employees Occupations) [c] 100 18,941 $331 '146 91,421 169 4532 Office Supplies, Stationery, and Gift Stores 500 28,693 $592,924 169,928 5,329 4533 Used Merchandise Stores 100 13,005 $563,158 62,101 591 4539 Other Miscellaneous Store Retailers 100 36,844 $1,081,911 179,402 9,414 4541 100 14,940 $2,969,058 97,777 786 Sfmt 4725 Electronic Shopping and Mail-Order Houses 4542 Vending Machine Operators 100 4,518 $1 '136,446 25,972 8,371 4543 Direct Selling Establishments 20 19,679 $1 '138,456 80,204 12,583 4811 Scheduled Air Transportation 1,500 538 $18,310,617 421,990 35,095 4812 Nonscheduled Air Transportation 1,500 2,304 $3,858,824 41,061 6,708 20 838 $10,116,311 20,390 590 E:\FR\FM\18NOR7.SGM Florists Fmt 4701 Frm 00222 4531 4831 Deep Sea, Coastal, and Great Lakes Water Transportation 500 580 $3,594,686 11,410 343 4841 General Freight Trucking 500 58,091 $1,289,155 468,958 22,261 4842 Specialized Freight Trucking 500 47,947 $1 '150,500 370,325 20,262 Urban Transit Systems 100 566 $1,456,261 7,629 822 4852 Interurban and Rural Bus Transportation 100 224 $2,476,679 2,825 175 4853 Taxi and Limousine Service 500 7,290 $682,884 58,923 1,486 4854 School and Employee Bus Transportation 100 3,045 $1,090,597 44,910 1,544 4855 18NOR7 Inland Water Transportation 4851 ER18NO16.135</GPH> 4832 Charter Bus Industry 500 1'118 $1,593,885 22,171 1,259 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 23:45 Nov 17, 2016 Estimated srobinson on DSK5SPTVN1PROD with RULES6 VerDate Sep<11>2014 Table V-2 Profile of General Industry Small Business Entities Covered by the Final Standard for Subparts D and I (continued) At-Risk Production Occupations Jkt 241001 (Construction, SBA Employment Installation, PO 00000 Size or Annual NAICS Frm 00223 4859 NAICS Description Other Transit and Ground Passenger Transportation Average Receipts Receipts per Criterion[a] Entities[b] Entity[b] Maintenance, and Repair Total Employees Occupations) [c] 3,196 $1,197,890 51,469 1,532 1,500 42 $20,494,772 5,608 1,110 500 Fmt 4701 Sfmt 4725 E:\FR\FM\18NOR7.SGM 4861 Pipeline Transportation of Crude Oil 4862 Pipeline Transportation of Natural Gas 500 84 $27,363,548 1,771 362 4869 Other Pipeline Transportation 500 56 $20,316,946 972 183 4871 Scenic and Sightseeing Transportation, Land 500 635 $880,647 6,041 246 4872 Scenic and Sightseeing Transportation, Water 500 1,821 $619,058 9,616 242 4879 Scenic and Sightseeing Transportation, Other 100 188 $2,089,665 1,246 192 4881 Support Activities for Air Transportation 100 3,947 $1,815,260 33,439 9,409 4882 Support Activities for Rail Transportation 100 480 $2,650,352 6,481 2,191 4883 Support Activities for Water Transportation 100 1,765 $3,068,905 16,036 988 $628,543 55,941 3,056 100 4885 Freight Transportation Arrangement 100 12,667 $2,172,906 88,629 867 4889 Other Support Activities for Transportation 100 1,551 $1,204,640 10,187 310 Couriers 1,500 3,747 $1,115,230 536,711 13,251 4922 Local Messengers and Local Delivery 500 4,330 $958,560 33,363 109 4931 Warehousing and Storage 100 7,410 $5,391,522 84,202 2,648 500 16,643 $2,637,887 240,210 1,946 500 5,601 $4,259,862 106,847 715 5111 5112 ER18NO16.136</GPH> Newspaper, Periodical, Book, and Directory Publishers Software Publishers 82715 Support Activities for Road Transportation 4921 18NOR7 4884 9,249 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 23:45 Nov 17, 2016 Estimated Employment in srobinson on DSK5SPTVN1PROD with RULES6 82716 VerDate Sep<11>2014 Table V-2 Profile of General Industry Small Business Entities Covered by the Final Standard for Subparts D and I (continued) 500 17,429 $1,438,874 120,398 1,027 5122 Sound Recording Industries 100 3,425 $482,983 12,256 127 5151 Radio and Television Broadcasting 20 4,606 $2,229,432 28,943 317 5152 Cable and Other Subscription Programming 500 341 $10,561,328 6,809 1,824 5161 Internet Publishing and Broadcasting 500 2,333 $2,351,160 19,451 NA Sfmt 4725 5171 Wired Telecommunications Carriers 1,500 2,004 $8,334,605 493,023 166,379 1,500 1,711 $5,075,123 160,166 8,958 PO 00000 NAICS Frm 00224 5172 NAICS Description Wireless Telecommunications Carriers (except Satellite) SBA Employment Size or Annual Receipts Criterion[a] Entities[b] Average Receipts per Entity[b] E:\FR\FM\18NOR7.SGM 18NOR7 5173 Telecommunications Resellers 1,500 3,107 $4,290,738 43,851 N/A 5174 Satellite Telecommunications 1,000 530 $5,662,560 13,492 2,093 5175 Cable and Other Program Distribution 1,000 947 $2,953,364 175,981 NA 5179 Other Telecommunications 1,000 1,260 $1,767,175 27,622 NA 5181 Internet Service Providers and Web Search Portals 1,000 3,747 $2,120,052 58,322 1,620 1,000 7,112 $3,189,773 339,914 NA $917,716 53,714 4,858 5182 Data Processing, Hosting, and Related Services 5191 Other Information Services 1,000 3,349 5211 Monetary Authorities - Central Bank 1,000 53 $5,712,321 14,044 164 5221 Depository Credit Intermediation 20 15,010 $12,178,211 107,239 738 5222 Nondepository Credit Intermediation 100 23,197 $4,708,135 136,331 106 27,577 $940,918 92,463 243 5223 ER18NO16.137</GPH> Activities Related to Credit Intermediation 20 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations Motion Picture and Video Industries Jkt 241001 5121 Fmt 4701 23:45 Nov 17, 2016 Total Employees Estimated Employment in At-Risk Production Occupations (Construction, Installation, Maintenance, and Repair Occupations) [c) srobinson on DSK5SPTVN1PROD with RULES6 VerDate Sep<11>2014 Table V-2 Profile of General Industry Small Business Entities Covered by the Final Standard for Subparts D and I (continued) Jkt 241001 PO 00000 NAICS Description Entities[b] Average Receipts per Entity[b] Total Employees Securities and Commodity Contracts Intermediation and Brokerage 100 12,731 $3,449,331 61,945 260 5232 Securities and Commodity Exchanges 100 117 $7,093,103 699 57 Fmt 4701 5239 Other Financial Investment Activities 100 43,788 $2,678,726 173,174 14 5241 Insurance Carriers 100 6,849 $13,103,280 51,770 419 415,001 150 Sfmt 4725 Frm 00225 5231 5242 Related Activities 20 130,229 $737,898 1,965 $2,111,505 4,448 488 E:\FR\FM\18NOR7.SGM 18NOR7 5259 Other Investment Pools and Funds 20 5311 Lessors of Real Estate 100 95,427 $1,040,229 361,764 84,509 5312 Offices of Real Estate Agents and Brokers 100 100,495 $700,288 257,710 17,563 5313 Activities Related to Real Estate 100 73,945 $751,556 363,692 65,945 5321 Automotive Equipment Rental and Leasing 500 4,629 $1,924,714 38,958 5,747 5322 Consumer Goods Rental 100 12,034 $676,881 82,488 4,970 5323 General Rental Centers 100 3,167 $1 '108,941 21,849 2,506 100 8,368 $2,391,534 64,230 3,603 100 2,335 $3,451,840 16,632 336 100 180,282 $936,065 831,572 157 500 107,843 $549,498 681,543 3,754 5324 5331 5411 5412 Commercial and Industrial Machinery and Equipment Rental and Leasing Lessors of Nonfinancial Intangible Assets (except Copyrighted Works) Legal SeNices Accounting, Tax Preparation, Bookkeeping, and Payroll SeNices 82717 ER18NO16.138</GPH> Agencies, Brokerages, and Other Insurance Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 23:45 Nov 17, 2016 NAICS SBA Employment Size or Annual Receipts Criterion[a] Estimated Employment in At-Risk Production Occupations (Construction, Installation, Maintenance, and Repair Occupations) [c) srobinson on DSK5SPTVN1PROD with RULES6 82718 VerDate Sep<11>2014 Table V-2 Profile of General Industry Small Business Entities Covered by the Final Standard for Subparts D and I (continued) Jkt 241001 PO 00000 NAICS Description Entities[b] Total Employees 98,918 $1,456,915 682,282 28,540 5414 Specialized Design Services 100 34,304 $675,008 117,793 1,918 5415 Computer Systems Design and Related Services 500 102,538 $1,270,944 686,853 11,446 100 141,356 $844,068 502,134 12,600 Sfmt 4725 5413 Fmt 4701 100 Frm 00226 Architectural, Engineering, and Related Average Receipts per Entity[b] 5416 Services Management, Scientific, and Technical Consulting Services E:\FR\FM\18NOR7.SGM 5417 Scientific Research and Development Services 100 13,440 $3,555,301 121,091 2,307 5418 Advertising and Related Services 500 36,283 $1,506,332 271,265 4,460 500 64,099 $780,896 460,168 3,166 5419 Other Professional, Scientific, and Technical Services 100 20,794 $3,630,215 154,193 4,331 5611 Office Administrative Services 100 25,338 $1,691,252 186,112 4,422 5612 Facilities Support Services 500 1,500 $3,068,841 41,933 5,492 5613 Employment Services 100 23,151 $1,925,441 377,202 26,725 5614 Business Support Services 100 29,302 $968,918 210,992 1,232 Travel Arrangement and Reservation Services 100 16,703 $995,690 88,955 607 5616 Investigation and Security Services 100 19,479 $876,855 177,631 12,671 5617 Services to Buildings and Dwellings 100 172,700 $480,087 953,744 29,835 5619 Other Support Services 100 18,223 $1,435,410 125,853 7,503 5621 18NOR7 Management of Companies and Enterprises 5615 ER18NO16.139</GPH> 5511 Waste Collection 500 7,666 $1,877,005 87,779 7,912 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 23:45 Nov 17, 2016 NAICS SBA Employment Size or Annual Receipts Criterion[a] Estimated Employment in At-Risk Production Occupations (Construction, Installation, Maintenance, and Repair Occupations) [c] srobinson on DSK5SPTVN1PROD with RULES6 VerDate Sep<11>2014 Table V-2 Profile of General Industry Small Business Entities Covered by the Final Standard for Subparts D and I {continued) Jkt 241001 PO 00000 Frm 00227 5629 5622 NAICS Description Waste Treatment and Disposal Remediation and Other Waste Management Services Total Employees 100 1,534 $3,298,771 14,175 2,492 100 7,883 $1,690,585 69,976 36,457 SBA Employment Size or Annual Receipts Clitelion[a] Entities[b] Average Receipts per Entity[b] Fmt 4701 Sfmt 4725 E:\FR\FM\18NOR7.SGM 6111 Elementary and Secondary Schools 100 16,490 $3,380,040 432,755 5,047 6112 Junior Colleges 500 288 $8,113,083 22,232 379 100 1,718 $7,571,236 31,773 824 100 6,832 $1,089,675 39,887 282 71,095 1,478 6113 6114 Colleges, Universities, and Professional Schools Business Schools and Computer and Management Training 500 6,442 $1,090,769 6116 Other Schools and Instruction 100 35,635 $389,292 238,750 1,245 6117 Educational Support Services 100 5,917 $1,201 '135 33,541 83 6211 Offices of Physicians 100 189,252 $1,400,668 1,382,978 2,478 6212 Offices of Dentists 100 120,488 $755,088 785,251 395 6213 Offices of Other Health Practitioners 100 112,089 $410,243 481,487 513 Outpatient Care Centers 500 12,233 $2,778,276 325,291 2,191 6215 Medical and Diagnostic Laboratories 500 7,464 $2,696,196 111,982 245 6216 Home Health Care Services 20 15,764 $1,542,557 73,107 89 6219 Other Ambulatory Health Care Services 100 5,449 $2,238,978 80,159 948 6221 General Medical and Surgical Hospitals 20 1,674 $17,794,953 4,592 60 326 $12,990,991 1,259 28 6222 ER18NO16.140</GPH> Psychiatric and Substance Abuse Hospitals 20 82719 Technical and Trade Schools 6214 18NOR7 6115 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 23:45 Nov 17, 2016 NAICS Estimated Employment in At-Risk Production Occupations (Construction, Installation, Maintenance, and Repair Occupations) [c] srobinson on DSK5SPTVN1PROD with RULES6 At-Risk Production Occupations Jkt 241001 (Construction, SBA Employment Installation, Size or Annual Average PO 00000 Receipts per Receipts NAICS Frm 00228 6223 6231 Fmt 4701 6232 NAICS Description Specialty (except Psychiatric and Substance Abuse) Hospitals Nursing Care Facilities Residential Mental Retardation, Mental Health and Substance Abuse Facilities Criterion[a] Maintenance, Entities[b] Entity[b] and Repair Total Employees Occupations) [c] 401 $7,388,554 1,236 15 500 7,832 $5,346,830 732,737 9,728 100 8,036 $1,815,049 149,756 1,416 20 Sfmt 4725 E:\FR\FM\18NOR7.SGM 6233 Community Care Facilities for the Elderly 100 14,491 $1,361,752 213,645 4,616 6239 Other Residential Care Facilities 100 3,523 $1,714,968 58,973 837 6241 Individual and Family Services 100 40,591 $1,237,965 462,899 2,300 100 9,325 $2,074,994 110,080 2,807 73,914 820 6242 Community Food and Housing, and Emergency and Other Relief Services 18NOR7 6243 Vocational Rehabilitation Services 100 4,249 $1,945,328 6244 Child Day Care Services 100 59,716 $397,468 600,199 1,226 7111 Performing Arts Companies 500 9,255 $1,257,784 114,240 3,150 100 4,194 $4,107,867 28,305 1,641 20 5,982 $1,371,807 19,449 773 500 3,620 $1,113,019 15,388 72 500 20,044 $629,580 45,037 942 100 6,778 $1,471,038 72,964 2,685 100 2,555 $954,517 24,165 1,439 7112 7113 7115 7121 7131 Spectator Sports Promoters of Performing Arts, Sports, and Similar Events Agents and Managers for Artists, Athletes, Entertainers, and Other Public Figures Independent Artists, Writers, and Performers Museums, Historical Sites, and Similar Institutions Amusement Parks and Arcades Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 23:45 Nov 17, 2016 Estimated Employment in 7114 ER18NO16.141</GPH> 82720 VerDate Sep<11>2014 Table V-2 Profile of General Industry Small Business Entities Covered by the Final Standard for Subparts D and I (continued) srobinson on DSK5SPTVN1PROD with RULES6 VerDate Sep<11>2014 Table V-2 Profile of General Industry Small Business Entities Covered by the Final Standard for Subparts D and I (continued) Jkt 241001 PO 00000 Frm 00229 Fmt 4701 68,138 2,078 $733,766 613,317 24,522 100 43,818 $1,224,034 512,443 23,378 100 6,809 $573,403 30,846 4,017 NAICS Description SBA Employment Size or Annual Receipts Criterion[a] 7132 Gambling Industries 500 1,988 7139 Other Amusement and Recreation Industries 100 61,465 NAICS 7211 7212 Traveler Accommodation RV (Recreational Vehicle) Parks and Recreational Camps Entities[b] Average Receipts per Entity[b] $4,195,691 Sfmt 4725 E:\FR\FM\18NOR7.SGM 18NOR7 7213 Rooming and Boarding Houses 100 2,117 $390,860 9,699 481 7221 Full-Service Restaurants 500 188,281 $674,755 3,026,084 2,251 7222 Limited-Service Eating Places 100 173,832 $656,624 1,847,022 1,978 7223 Special Food Services 100 15,095 $713,151 130,617 1,316 7224 Drinking Places (Alcoholic Beverages) 100 46,253 $383,764 329,754 646 8111 Automotive Repair and Maintenance 100 152,030 $541,795 751,162 389,884 20 11,232 $893,997 39,042 20,321 100 21,850 $1,029,875 125,774 61,417 500 21,868 $344,533 74,913 28,262 8112 Electronic and Precision Equipment Repair and Maintenance Commercial and Industrial Machinery and 8113 Equipment (except Automotive and Electronic) Repair and Maintenance 8114 Personal and Household Goods Repair and Maintenance 100 96,852 $232,216 480,685 286 8122 Death Care Services 20 15,760 $775,267 75,571 875 8123 ER18NO16.142</GPH> Personal Care Services Dry-cleaning and Laundry Services 20 33,896 $400,368 140,742 2,799 82721 8121 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 23:45 Nov 17, 2016 Total Employees Estimated Employment in At-Risk Production Occupations (Construction, Installation, Maintenance, and Repair Occupations) [c] srobinson on DSK5SPTVN1PROD with RULES6 82722 VerDate Sep<11>2014 Jkt 241001 Total Employees Estimated Employment in At-Risk Production Occupations (Construction, Installation, Maintenance, and Repair Occupations) [c) PO 00000 Frm 00230 NAICS NAICS Description SBA Employment Size or Annual Receipts Criterion[a] Entities[b] Average Receipts per Entity[b] Fmt 4701 Sfmt 4725 E:\FR\FM\18NOR7.SGM 8129 Other Personal Services 20 25,713 $458,703 83,124 1,109 8131 Religious Organizations 20 178,395 $632,935 833,997 23,020 8132 Grantmaking and Giving Services 20 14,131 $6,009,398 51,941 240 8133 Social Advocacy Organizations 20 13,019 $1,211,695 57,049 719 8134 Civic and Social Organizations 20 26,900 $621,150 123,552 1,279 20 60,844 $1 '119,240 253,206 10,996 44,446,321 2,354,813 8139 Business, Professional, Labor, Political, and Similar Organizations Totals 5,233,667 [a]2016 SBA criteria specified in dollar terms converted to size-class definition based on average revenues for establishment size categories. OSHA applied the most restrictive criteria for 6-digit NAICS to the 4-digit NAICS level. [b] U.S. Census Bureau, Statistics of U.S. Businesses, 2007. 18NOR7 [c] Based on Bureau of Labor Statistics, Occupational Employment Statistics, 2007. Assumes same share of at-risk production workers in construction, installation, maintenance, and repair occupations as derived for the PEA. For example, for NAICS 8139, OSHA estimated in the PEA that of the 242,744 total number of employees in small firms, 10,542 workers, or 4.3 percent, are in the at-risk production occupations (Table V-2, PEA). For this FEA, applied the atrisk percentage (4.3 percent) to the 2007 figure for employment, 253,206, to derive the number of workers (10,996) in at-risk occupations in NAICS 8139 in 2007. NA: Data not available. Source: U.S. Department of Labor, OSHA, Directorate of Standards and Guidance, Office of Regulatory Analysis-Safety. ER18NO16.143</GPH> Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 23:45 Nov 17, 2016 Table V-2 Profile of General Industry Small Business Entities Covered by the Final Standard for Subparts D and I (continued) srobinson on DSK5SPTVN1PROD with RULES6 VerDate Sep<11>2014 Employees Occupations)[c] Jkt 241001 Total Estimated Employment in At-Risk Production Occupations (Construction, Installation, Maintenance, and Repair PO 00000 Average Receipts NAICS NAICS Description Entities[a] per Entity[b] Frm 00231 Fmt 4701 Sfmt 4725 E:\FR\FM\18NOR7.SGM 18NOR7 1131 Timber Tract Operations 371 $904,288 1,853 NA 1132 Forest Nurseries and Gathering of Forest Products 154 $662,500 549 NA 1133 Logging 9,231 $719,994 39,961 1,726 1141 Fishing 2,039 $502,802 2,601 NA 1142 Hunting and Trapping 312 $293,641 721 NA 1153 Support Activities for Forestry 1,528 $391,575 4,354 NA 2111 Oil and Gas Extraction 5,836 $2,175,862 19,887 4,056 2211 Electric Power Generation, Transmission and Distribution 630 $13,277,417 3,577 1'196 2212 Natural Gas Distribution 351 $19,580,715 1,693 509 2213 Water, Sewage and Other Systems $539,579 19,257 4,235 3111 Animal Food Manufacturing 819 $2,522,281 5,211 372 3112 Grain and Oilseed Milling 277 $3,868,422 1,782 156 3113 Sugar and Confectionery Product Manufacturing $585,509 9,210 788 3114 Fruit and Vegetable Preserving and Specialty Food 684 $1,719,652 4,101 372 620 $2,180,692 3,632 262 2,262 $1,396,308 12,186 648 351 $2,035,162 2,058 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 23:45 Nov 17, 2016 TableV-3 Profile of General Industry Very Small Business Entities (Fewer Than 20 Employees) Covered by the Final Standard for Suboarts D and I 104 Manufacturing 3115 Dairy Product Manufacturing 3116 Animal Slaughtering and Processing 3117 Seafood Product Preparation and Packaging 3,766 1,587 82723 ER18NO16.144</GPH> srobinson on DSK5SPTVN1PROD with RULES6 82724 VerDate Sep<11>2014 Estimated Employment in At-Risk Production Occupations Jkt 241001 (Construction, Installation, Maintenance, PO 00000 Average Receipts NAICS Frm 00232 3118 NAICS Description Bakeries and Tortilla Manufacturing Entities[a] per Entity[b] Total and Repair Employees Occupations)[c] 7,651 $425,396 43,654 1,843 10,306 608 2,722 $1,051,299 12,874 1,084 3122 Tobacco Manufacturing 40 $5,255,550 158 23 3131 Fiber, Yam, and Thread Mills 172 $941,680 872 114 3132 Fabric Mills 704 $1,069,004 4,007 382 3133 Textile and Fabric Finishing and Fabric Coating Mills 942 $1,028,120 5,000 236 3141 Textile Furnishings Mills 2,053 $587,568 9,147 491 3149 Other Textile Product Mills 3,302 $544,186 16,477 708 3151 Apparel Knitting Mills 283 $845,307 1,645 126 3152 Cut and Sew Apparel Manufacturing 7,163 $650,130 35,018 304 3159 Apparel Accessories and Other Apparel Manufacturing 730 $473,908 3,148 57 3161 Leather and Hide Tanning and Finishing 186 $638,801 885 41 3162 Footwear Manufacturing 206 $714,306 977 22 Other Leather and Allied Product Manufacturing 682 $533,997 3,201 29 Sawmills and Wood Preservation 2,626 $1,078,822 16,671 1,317 Veneer, Plywood, and Engineered Wood Product Manufacturing 735 $1 '125,005 5,685 579 Other Wood Product Manufacturing $795,184 40,335 5,009 3221 18NOR7 Beverage Manufacturing 3219 E:\FR\FM\18NOR7.SGM 3121 3212 Sfmt 4725 1,786 3211 Fmt 4701 Other Food Manufacturing 3169 ER18NO16.145</GPH> 3119 $1,609,700 Pulp, Paper, and Paperboard Mills 445 82 6,913 85 $2,015,788 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 23:45 Nov 17, 2016 Table V-3 Profile of General Industry Very Small Business Entities (Fewer Than 20 Employees) Covered by the Final Standard for Subparts D and I (continued) srobinson on DSK5SPTVN1PROD with RULES6 VerDate Sep<11>2014 Estimated Employment in At-Risk Production Occupations Jkt 241001 (Construction, Installation, PO 00000 Maintenance, Average Receipts NAICS NAICS Description Entities[a] Employees Occupations)[c] $1,708,330 10,430 655 $574,129 134,736 2,159 3222 Converted Paper Product Manufacturing 3231 Printing and Related Support Activities 3241 Petroleum and Coal Products Manufacturing 696 $3,779,618 3,699 538 3251 Basic Chemical Manufacturing 753 $3,960,376 3,914 471 3252 356 $3,619,904 2,238 284 E:\FR\FM\18NOR7.SGM per Entity[b] Sfmt 4725 and Repair Fmt 4701 Frm 00233 1,434 Total 3253 445 $2,637,229 2,609 323 Resin, Synthetic Rubber, and Artificial Synthetic Fibers and Filaments Manufacturing Pesticide, Fertilizer, and Other Agricultural Chemical Manufacturing 26,396 3254 Pharmaceutical and Medicine Manufacturing 852 $2,051,926 4,712 213 3255 Paint, Coating, and Adhesive Manufacturing 1,009 $1,699,239 6,437 262 1,419 $3,140,786 8,242 556 3256 Soap, Cleaning Compound, and Toilet Preparation Manufacturing 18NOR7 3259 Other Chemical Product and Preparation Manufacturing 1,476 $1,538,043 8,546 550 3261 Plastics Product Manufacturing 5,175 $1,232,932 35,604 1,974 3262 Rubber Product Manufacturing 961 $1,057,482 6,139 393 991 $567,411 4,380 346 3272 Glass and Glass Product Manufacturing 1,403 $723,139 6,383 601 3273 Cement and Concrete Product Manufacturing 3,200 $1,464,123 22,308 3,317 3274 ER18NO16.146</GPH> Clay Product and Refractory Manufacturing Lime and Gypsum Product Manufacturing 150 $1,663,193 837 153 82725 3271 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 23:45 Nov 17, 2016 TableV-3 Profile of General Industry Very Small Business Entities (Fewer Than 20 Employees) Covered by the Final Standard for Subparts D and I (continued) srobinson on DSK5SPTVN1PROD with RULES6 82726 VerDate Sep<11>2014 Estimated Employment in At-Risk Production Occupations Jkt 241001 (Construction, Installation, PO 00000 Maintenance, Frm 00234 Total and Repair Employees Occupations)[c] $948,698 13,566 1,773 Average Receipts NAICS NAICS Description Entities[a] per Entity[b] Fmt 4701 Sfmt 4725 E:\FR\FM\18NOR7.SGM 18NOR7 3279 Other Nonmetallic Mineral Product Manufacturing 2,199 3311 Iron and Steel Mills and Ferroalloy Manufacturing 532 $3,865,032 2,441 501 3312 Steel Product Manufacturing from Purchased Steel 278 $2,364,662 1,462 130 3313 Alumina and Aluminum Production and Processing 220 $3,096,368 1,227 184 3314 Nonferrous Metal (except Aluminum) Production and Processing 420 $3,356,624 2,483 254 3315 Foundries 945 $1,085,725 6,505 539 3321 Forging and Stamping 1,237 $1,276,886 9,085 534 3322 Cutlery and Handtool Manufacturing $850,886 5,725 222 3323 Architectural and Structural Metals Manufacturing 8,801 $1,055,227 55,465 5,226 3324 Boiler, Tank, and Shipping Container Manufacturing 650 $1,431,457 4,364 N/A 3325 Hardware Manufacturing 425 $1,232,386 2,633 93 3326 Spring and Wire Product Manufacturing 918 $971,629 6,106 212 19,866 $678,530 113,258 2,788 3327 Machine Shops; Turned Product; and Screw, Nut, and Bolt Manufacturing 982 3328 3,891 $922,584 26,405 1,085 3329 Other Fabricated Metal Product Manufacturing 3,914 $978,226 23,158 1,323 3331 Agriculture, Construction, and Mining Machinery Manufacturing 1,698 $1,422,711 10,869 594 3332 Industrial Machinery Manufacturing 2,406 $1,079,228 15,172 739 3333 ER18NO16.147</GPH> Coating, Engraving, Heat Treating, and Allied Activities Commercial and Service Industry Machinery Manufacturing 1,427 $1 '193,423 8,128 416 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 23:45 Nov 17, 2016 TableV-3 Profile of General Industry Very Small Business Entities (Fewer Than 20 Employees) Covered by the Final Standard for Subparts D and I (continued) srobinson on DSK5SPTVN1PROD with RULES6 VerDate Sep<11>2014 Estimated Employment in At-Risk Production Occupations Jkt 241001 (Construction, Installation, PO 00000 Maintenance, Average Receipts NAICS NAICS Description Frm 00235 Fmt 4701 Sfmt 4725 Total and Repair per Entity[b] Employees Occupations)[c] $1,747,004 5,334 459 $790,926 36,628 950 412 $1,638,010 2,727 218 3,478 $1,289,752 22,932 1,318 Entities[a] Ventilation, Heating, Air-Conditioning, and Commercial 3334 3335 3336 Refrigeration Equipment Manufacturing Metalworking Machinery Manufacturing Engine, Turbine, and Power Transmission Equipment Manufacturing 852 5,710 E:\FR\FM\18NOR7.SGM 3339 Other General Purpose Machinery Manufacturing 3341 Computer and Peripheral Equipment Manufacturing 861 $1,376,239 4,513 96 3342 Communications Equipment Manufacturing 970 $1,252,311 5,710 223 3343 Audio and Video Equipment Manufacturing 386 $2,940,404 2,011 60 3344 Semiconductor and Other Electronic Component Manufacturing 2,340 $1 '138,233 15,030 438 3,011 $1,148,847 16,910 518 3345 Navigational, Measuring, Electromedical, and Control Instruments Manufacturing 18NOR7 3346 Manufacturing and Reproducing Magnetic and Optical Media 604 $782,482 2,801 120 3351 Electric Lighting Equipment Manufacturing 739 $1,024,417 4,387 218 3352 Household Appliance Manufacturing 182 $1 '184,984 825 36 1,349 8,138 374 3359 1,053 $1,326,520 6,651 303 3361 Motor Vehicle Manufacturing 199 $3,386,462 905 92 3362 ER18NO16.148</GPH> Electrical Equipment Manufacturing Other Electrical Equipment and Component Manufacturing Motor Vehicle Body and Trailer Manufacturing 1,099 $1,198,110 7,250 504 82727 3353 $1,193,299 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 23:45 Nov 17, 2016 Table V-3 Profile of General Industry Very Small Business Entities (Fewer Than 20 Employees) Covered by the Final Standard for Subparts D and I (continued) srobinson on DSK5SPTVN1PROD with RULES6 in At-Risk Production Occupations Jkt 241001 (Construction, Installation, PO 00000 Maintenance, Average Receipts NAICS NAICS Description Frm 00236 Fmt 4701 Sfmt 4725 3363 Motor Vehicle Parts Manufacturing 3364 Aerospace Product and Parts Manufacturing 3365 Railroad Rolling Stock Manufacturing 3366 Ship and Boat Building 3369 Other Transportation Equipment Manufacturing 3371 Household and Institutional Furniture and Kitchen Cabinet Manufacturing E:\FR\FM\18NOR7.SGM 3372 Office Furniture (including Fixtures) Manufacturing 3379 Other Furniture Related Product Manufacturing 3391 Medical Equipment and Supplies Manufacturing 3399 Other Miscellaneous Manufacturing 18NOR7 4231 4232 4234 4235 Motor Vehicle and Motor Vehicle Parts and Supplies Merchant Wholesalers Furniture and Home Furnishing Merchant Wholesalers Lumber and Other Construction Materials Merchant Wholesalers Professional and Commercial Equipment and Supplies Merchant Wholesalers Metal and Mineral (except Petroleum) Merchant Wholesalers Total and Repair per Entity[b] Employees Occupations)[c] 2,604 $1,207,262 14,351 1,109 778 $1,223,792 4,623 473 78 $2,292,641 526 82 1,132 $805,729 5,713 1,099 $1,106,198 3,625 216 13,942 $507,009 68,572 4,303 2,542 $860,408 16,306 823 599 $831,331 3,500 113 9,679 $514,433 41,402 932 15,011 $680,473 75,533 3,556 14,357 $2,329,990 67,329 9,711 9,080 $2,011,243 41,180 1,076 10,114 $2,564,331 50,993 2,688 22,167 $1,751,265 100,895 10,378 5,660 $5,805,661 29,892 811 Entities[a] 787 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 23:45 Nov 17, 2016 Estimated Employment 4233 ER18NO16.149</GPH> 82728 VerDate Sep<11>2014 Table V-3 Profile of General Industry Very Small Business Entities (Fewer Than 20 Employees) Covered by the Final Standard for Subparts D and I (continued) srobinson on DSK5SPTVN1PROD with RULES6 VerDate Sep<11>2014 Estimated Employment in At-Risk Production Occupations Jkt 241001 (Construction, Installation, PO 00000 Maintenance, Average Receipts NAICS Frm 00237 4236 NAICS Description Electrical and Electronic Goods Merchant Wholesalers Total and Repair per Entity[b] Employees Occupations)[c] 16,343 $2,845,987 79,520 5,831 8,995 $2,125,415 48,855 3,657 Entities[a] Hardware, and Plumbing and Heating Equipment and Supplies 4237 Fmt 4701 Merchant Wholesalers Sfmt 4725 E:\FR\FM\18NOR7.SGM 18NOR7 4238 Machinery, Equipment, and Supplies Merchant Wholesalers 35,458 $2,269,440 183,385 36,887 4239 Miscellaneous Durable Goods Merchant Wholesalers 27,588 $2,304,796 108,172 5,692 4241 Paper and Paper Product Merchant Wholesalers 7,623 $1,826,344 35,480 463 4242 Drugs and Druggists' Sundries Merchant Wholesalers 5,110 $2,278,428 21,652 155 4243 Apparel, Piece Goods, and Notions Merchant Wholesalers 13,010 $2,094,234 51,757 184 4244 Grocery and Related Product Wholesalers 22,501 $3,596,083 102,085 2,361 4245 Farm Product Raw Material Merchant Wholesalers 3,154 $7,970,817 17,059 362 4246 Chemical and Allied Products Merchant Wholesalers 6,866 $3,246,561 31,459 1,286 4247 Petroleum and Petroleum Products Merchant Wholesalers 3,322 $13,682,888 18,347 1,145 2,034 $2,522,152 10,430 131 Beer, Wine, and Distilled Alcoholic Beverage Merchant 4248 Wholesalers 22,114 $1,932,719 89,342 1,460 4251 Wholesale Electronic Markets and Agents and Brokers 51,680 $4,621,845 143,593 5,629 4411 Automobile Dealers 31,917 $2,410,982 134,933 34,221 4412 Other Motor Vehicle Dealers 13,141 $1,868,530 66,358 19,975 4413 ER18NO16.150</GPH> Miscellaneous Nondurable Goods Merchant Wholesalers Automotive Parts, Accessories, and Tire Stores 30,240 $790,790 148,766 47,519 82729 4249 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 23:45 Nov 17, 2016 Table V-3 Profile of General Industry Very Small Business Entities (Fewer Than 20 Employees) Covered by the Final Standard for Subparts D and I (continued) srobinson on DSK5SPTVN1PROD with RULES6 82730 VerDate Sep<11>2014 Estimated Employment in At-Risk Production Occupations Jkt 241001 (Construction, Installation, PO 00000 Maintenance, Average Receipts NAICS NAICS Description Entities[a] per Entity[b] Total and Repair Employees Occupations)[c] Frm 00238 1,182 4422 Home Furnishings Stores 24,937 $769,730 102,613 9,069 4431 Electronics and Appliance Stores 28,687 $738,955 112,814 14,148 4441 Building Material and Supplies Dealers 38,531 $1,159,610 215,620 8,530 4442 Lawn and Garden Equipment and Supplies Stores 14,726 $1,074,554 73,504 7,580 4451 Grocery Stores 57,220 $747,750 226,088 350 4452 Specialty Food Stores 21,967 $517,551 86,699 387 4453 Beer, Wine, and Liquor Stores 26,079 $893,894 99,028 86 4461 Health and Personal Care Stores 39,978 $1,281,999 198,780 757 4471 Gasoline Stations 60,944 $2,233,789 301,733 11,093 4481 Clothing Stores 38,954 $491,851 149,900 93 4482 Shoe Stores 6,177 $596,845 27,210 4 4483 Jewelry, Luggage, and Leather Goods Stores 18,537 $718,611 67,338 690 4511 Sporting Goods, Hobby, and Musical Instrument Stores 30,028 $549,951 123,641 4,654 Book, Periodical, and Music Stores 8,449 $398,946 33,123 30 Department Stores 340 $451,179 1,238 10 Other General Merchandise Stores 9,408 $467,304 35,299 580 Florists 18,405 $277,861 74,866 139 4532 18NOR7 89,068 4531 E:\FR\FM\18NOR7.SGM $894,645 4529 Sfmt 4725 18,005 4521 Fmt 4701 Furniture Stores 4512 ER18NO16.151</GPH> 4421 Office Supplies, Stationery, and Gift Stores 27,053 $381,300 102,946 3,228 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 23:45 Nov 17, 2016 TableV-3 Profile of General Industry Very Small Business Entities (Fewer Than 20 Employees) Covered by the Final Standard for Subparts D and I (continued) srobinson on DSK5SPTVN1PROD with RULES6 VerDate Sep<11>2014 Estimated Employment in At-Risk Production Occupations Jkt 241001 (Construction, Installation, Maintenance, PO 00000 Average Receipts NAICS NAICS Description Entities[a] per Entity[b] Total and Repair Employees Occupations)[c] Frm 00239 4539 Other Miscellaneous Store Retailers 35,066 $784,145 129,654 6,803 4541 Electronic Shopping and Mail-Order Houses 13,757 $1,091,352 52,575 422 4542 Vending Machine Operators 4,200 $511,563 14,237 4,588 4543 Direct Selling Establishments 18,151 $1,138,456 73,976 11,606 4811 Scheduled Air Transportation 375 $1,432,816 1,508 125 4812 Nonscheduled Air Transportation 1,966 $1 '144,357 6,850 1 '119 4831 Deep Sea, Coastal, and Great Lakes Water Transportation 629 $1,863,897 2,938 85 4832 Inland Water Transportation 465 $1,045,996 1,981 60 4841 General Freight Trucking 53,000 $540,630 160,861 7,636 4842 Specialized Freight Trucking 43,755 $559,392 157,509 8,618 4851 Urban Transit Systems 408 $417,904 1,958 211 4852 Interurban and Rural Bus Transportation 156 $459,436 663 41 4853 Taxi and Limousine Service 6,692 $317,354 23,874 603 School and Employee Bus Transportation 2,107 $244,992 11,254 387 Charter Bus Industry 776 $535,240 4,470 254 Other Transit and Ground Passenger Transportation 2,464 $330,092 11,861 354 Pipeline Transportation of Crude Oil 28 $1,551,464 0 N/A Pipeline Transportation of Natural Gas 63 $916,556 231 47 82731 387 4862 18NOR7 40,741 4861 E:\FR\FM\18NOR7.SGM $386,847 4859 Sfmt 4725 12,084 4855 Fmt 4701 Used Merchandise Stores 4854 ER18NO16.152</GPH> 4533 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 23:45 Nov 17, 2016 TableV-3 Profile of General Industry Very Small Business Entities (Fewer Than 20 Employees) Covered by the Final Standard for Subparts D and I (continued) srobinson on DSK5SPTVN1PROD with RULES6 82732 VerDate Sep<11>2014 Estimated Employment in At-Risk Production Occupations Jkt 241001 (Construction, Installation, Maintenance, PO 00000 Average Receipts NAICS Frm 00240 4869 NAICS Description Other Pipeline Transportation Total and Repair per Entity[b] Employees Occupations)[c] 35 $2,214,257 0 N/A 536 $449,235 0 N/A Entities[a] $369,853 4,229 107 4879 Scenic and Sightseeing Transportation, Other 171 $565,269 0 N/A 4881 Support Activities for Air Transportation 3,385 $670,672 15,022 4,227 4882 Support Activities for Rail Transportation $1,056,352 2,008 679 4883 Support Activities for Water Transportation 1,404 $842,933 5,293 327 4884 Support Activities for Road Transportation 8,660 $412,065 36,483 1,993 4885 Freight Transportation Arrangement 11,567 $1,169,068 49,202 481 4889 Other Support Activities for Transportation 1,381 $483,409 4,962 151 4921 Couriers 3,321 $470,152 11,293 279 4922 Local Messengers and Local Delivery 3,918 $420,901 13,561 44 4931 Warehousing and Storage 3,827 $978,953 19,343 608 5111 Newspaper, Periodical, Book, and Directory Publishers 14,080 $636,747 63,758 516 Software Publishers 4,524 $944,289 22,363 149 Motion Picture and Video Industries 16,359 $685,625 45,008 384 Sound Recording Industries 3,425 $482,983 8,858 92 Radio and Television Broadcasting 3,621 $540,364 22,753 249 5152 18NOR7 1,717 5151 E:\FR\FM\18NOR7.SGM Scenic and Sightseeing Transportation, Water 5122 Sfmt 4725 4872 5121 Fmt 4701 Scenic and Sightseeing Transportation, Land 5112 ER18NO16.153</GPH> 4871 Cable and Other Subscription Programming 1,298 348 335 293 $1,520,055 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 23:45 Nov 17, 2016 TableV-3 Profile of General Industry Very Small Business Entities (Fewer Than 20 Employees) Covered by the Final Standard for Subparts D and I (continued) srobinson on DSK5SPTVN1PROD with RULES6 VerDate Sep<11>2014 Estimated Employment in At-Risk Production Occupations Jkt 241001 (Construction, Installation, PO 00000 Maintenance, Average Receipts NAICS NAICS Description per Entity[b] and Repair Employees Occupations)[c] Frm 00241 Fmt 4701 Sfmt 4725 E:\FR\FM\18NOR7.SGM 18NOR7 5161 Internet Publishing and Broadcasting 2,074 $646,030 6,667 N/A 5171 Wired Telecommunications Carriers 1,393 $1,389,149 6,875 2,320 5172 Wireless Telecommunications Carriers (except Satellite) 1,452 $842,178 5,268 294 5173 Telecommunications Resellers 2,789 $1 '186,366 10,731 N/A 5174 Satellite Telecommunications 478 $1 '141 ,295 1,823 284 5175 Cable and Other Program Distribution 802 $952,906 3,476 N/A 5179 Other Telecommunications 1,176 $779,734 4,168 919 5181 Internet Service Providers and Web Search Portals 3,350 $648,603 11,712 N/A 5182 Data Processing, Hosting, and Related Services 6,048 $756,550 25,507 337 5191 Other Information Services 2,988 $380,189 12,905 52 5211 Monetary Authorities - Central Bank 5221 Depository Credit Intermediation 5222 5223 5231 39 $1,627,718 229 5 7,589 $1,357,749 54,220 102 Nondepository Credit Intermediation 20,967 $719,656 71,025 121 Activities Related to Credit Intermediation 26,119 $434,504 87,574 259 12,049 $1,066,412 35,583 34 107 $2,388,383 235 4 Securities and Commodity Contracts Intermediation and Brokerage Securities and Commodity Exchanges 5239 Other Financial Investment Activities 5241 Insurance Carriers 42,067 $925,317 113,019 292 6,199 $1,205,802 23,179 66 82733 5232 ER18NO16.154</GPH> Entities[a] Total Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 23:45 Nov 17, 2016 Table V-3 Profile of General Industry Very Small Business Entities (Fewer Than 20 Employees) Covered by the Final Standard for Subparts D and I (continued) srobinson on DSK5SPTVN1PROD with RULES6 82734 VerDate Sep<11>2014 Estimated Employment in At-Risk Production Occupations Jkt 241001 (Construction, Installation, PO 00000 Maintenance, Average Receipts NAICS NAICS Description Frm 00242 Fmt 4701 Sfmt 4725 E:\FR\FM\18NOR7.SGM 5242 Agencies, Brokerages, and Other Insurance Related Activities 5259 Other Investment Pools and Funds 5311 Lessors of Real Estate 5312 Offices of Real Estate Agents and Brokers 5313 Activities Related to Real Estate 5321 Automotive Equipment Rental and Leasing 5322 5323 Entities[a] 126,015 1,965 18NOR7 5411 $2,111,505 Employees Occupations)[c] 401,572 487 4,448 55 $686,318 259,246 69,053 100,495 $490,242 202,863 13,555 68,879 $387,554 204,255 40,327 4,140 $751,836 14,057 1,855 Consumer Goods Rental 10,893 $348,975 47,138 1,429 General Rental Centers 2,867 $642,647 14,229 2,240 7,207 $990,733 29,875 7,714 2,051 $1,559,166 7,407 80 and Leasing Lessors of Nonfinancial Intangible Assets (except Copyrighted 5331 $405,901 and Repair 91,585 Commercial and Industrial Machinery and Equipment Rental 5324 per Entity[b] Total Works) 173,334 $498,006 561,904 269 101,937 Legal Services $304,149 345,607 1,903 Accounting, Tax Preparation, Bookkeeping, and Payroll 5412 Services 5413 90,424 $550,511 353,781 14,799 5414 Specialized Design Services 33,480 $503,875 89,625 1,460 5415 Computer Systems Design and Related Services 96,593 $491,452 258,264 4,304 5416 ER18NO16.155</GPH> Architectural, Engineering, and Related Services Management, Scientific, and Technical Consulting Services 136,280 $460,433 312,615 7,845 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 23:45 Nov 17, 2016 TableV-3 Profile of General Industry Very Small Business Entities (Fewer Than 20 Employees) Covered by the Final Standard for Subparts D and I (continued) srobinson on DSK5SPTVN1PROD with RULES6 VerDate Sep<11>2014 Estimated Employment in At-Risk Production Occupations Jkt 241001 (Construction, Installation, PO 00000 Maintenance, Average Receipts NAICS NAICS Description Entities[a] per Entity[b] Total and Repair Employees Occupations)[c] Frm 00243 5418 Advertising and Related Services 33,795 $757,078 118,339 1,945 5419 Other Professional, Scientific, and Technical Services 59,528 $481,878 251,956 1,734 5511 Management of Companies and Enterprises 5,719 $1,743,093 14,633 411 5611 Office Administrative Services $639,205 78,740 1,871 5612 Facilities Support Services $1,047,835 4,292 562 5613 Employment Services 14,288 $449,522 60,685 4,300 5614 Business Support Services 25,890 $433,515 100,431 586 5615 Travel Arrangement and Reservation Services 15,806 $433,715 54,230 369 5616 Investigation and Security Services 16,410 $386,926 68,170 4,863 5617 Services to Buildings and Dwellings 160,667 $289,741 546,830 17,106 5619 Other Support Services 16,611 $692,660 63,972 3,814 5621 Waste Collection 6,550 $763,380 33,154 2,989 5622 Waste Treatment and Disposal 1,277 $1,043,285 6,779 1'191 Remediation and Other Waste Management Services 6,739 $654,417 31,315 16,314 Elementary and Secondary Schools 8,116 $482,773 62,969 734 Junior Colleges 176 $706,528 898 16 Colleges, Universities, and Professional Schools 868 $696,187 4,333 112 Business Schools and Computer and Management Training 6,367 $498,411 20,232 142 22,481 978 82735 834 6114 18NOR7 43,789 6113 E:\FR\FM\18NOR7.SGM $788,491 6112 Sfmt 4725 10,974 6111 Fmt 4701 Scientific Research and Development Services 5629 ER18NO16.156</GPH> 5417 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 23:45 Nov 17, 2016 Table V-3 Profile of General Industry Very Small Business Entities (Fewer Than 20 Employees) Covered by the Final Standard for Subparts D and I (continued) srobinson on DSK5SPTVN1PROD with RULES6 in At-Risk Production Occupations Jkt 241001 (Construction, Installation, PO 00000 Maintenance, Average Receipts NAICS NAICS Description Entities[a] per Entity[b] Total and Repair Employees Occupations)[c] Frm 00244 Fmt 4701 Sfmt 4725 E:\FR\FM\18NOR7.SGM 18NOR7 6115 Technical and Trade Schools 5,671 $465,825 27,936 581 6116 Other Schools and Instruction 32,864 $232,852 137,932 720 6117 Educational Support Services 5,525 $414,953 17,452 43 6211 Offices of Physicians 173.483 $748,931 807,231 1.447 6212 Offices of Dentists 116,943 $663,526 680,995 342 6213 Offices of Other Health Practitioners 108,837 $315,908 371,257 395 6214 Outpatient Care Centers 9,406 $662,078 49,633 334 6215 Medical and Diagnostic Laboratories 6,099 $956,341 27,484 60 6216 Home Health Care Services 9,898 $358,422 45,903 56 6219 Other Ambulatory Health Care Services 4,056 $533,988 22,677 268 6221 General Medical and Surgical Hospitals 170 $2,036,565 466 6 6222 Psychiatric and Substance Abuse Hospitals 95 $799,389 367 8 6223 Specialty (except Psychiatric and Substance Abuse) Hospitals 236 $699,254 727 9 6231 Nursing Care Facilities 1,768 $722,773 8,046 107 4,311 $309,512 26,557 251 10,036 $280,604 53,169 1,149 2,018 $317,314 13,130 186 30,530 $361,179 144,429 718 Residential Mental Retardation, Mental Health and Substance Abuse Facilities 6233 Community Care Facilities for the Elderly 6239 Other Residential Care Facilities 6241 Individual and Family Services Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 23:45 Nov 17, 2016 Estimated Employment 6232 ER18NO16.157</GPH> 82736 VerDate Sep<11>2014 Table V-3 Profile of General Industry Very Small Business Entities (Fewer Than 20 Employees) Covered by the Final Standard for Subparts D and I (continued) srobinson on DSK5SPTVN1PROD with RULES6 VerDate Sep<11>2014 Estimated Employment in At-Risk Production Occupations Jkt 241001 (Construction, Installation, PO 00000 Maintenance, Average Receipts NAICS Frm 00245 6242 NAICS Description Community Food and Housing, and Emergency and Other Relief Services Entities[a] per Entity[b] Total and Repair Employees Occupations)[c] Fmt 4701 6,950 $708,070 39,765 1,014 2,096 $449,376 10,606 118 49,092 $178,863 281,036 574 Sfmt 4725 E:\FR\FM\18NOR7.SGM 6243 Vocational Rehabilitation Services 6244 Child Day Care Services 7111 Perfonning Arts Companies 8,161 $586,767 28,265 780 7112 Spectator Sports 3,798 $581,632 12,652 733 7113 Promoters of Performing Arts, Sports, and Similar Events 5,395 $762,802 17,541 697 3,511 $737,312 8,864 41 19,734 $571,636 31,196 652 7114 Agents and Managers for Artists, Athletes, Entertainers, and Other Public Figures Museums, Historical Sites, and Similar Institutions 5,711 $380,010 23,753 874 7131 Amusement Parks and Arcades 2,108 $418,728 9,002 537 7132 Gambling Industries 1,466 $811,623 8,535 260 7139 Other Amusement and Recreation Industries 50,769 $331,215 226,514 9,056 Traveler Accommodation 33,973 $494,261 189,353 8,638 RV (Recreational Vehicle) Parks and Recreational Camps 6,233 $434,492 18,918 2,464 7213 Rooming and Boarding Houses 2,034 $296,352 7,687 382 7221 Full-Service Restaurants 141,430 $325,251 867,052 645 7222 Limited-Service Eating Places 141,803 $289,576 772,741 827 82737 7121 7212 18NOR7 Independent Artists, Writers, and Performers 7211 ER18NO16.158</GPH> 7115 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 23:45 Nov 17, 2016 TableV-3 Profile of General Industry Very Small Business Entities (Fewer Than 20 Employees) Covered by the Final Standard for Subparts D and I (continued) srobinson on DSK5SPTVN1PROD with RULES6 82738 VerDate Sep<11>2014 Estimated Employment in At-Risk Production Occupations Jkt 241001 (Construction, Installation, PO 00000 Maintenance, Average Receipts NAICS NAICS Description Entities[a] per Entity[b] Total and Repair Employees Occupations)[c] Special Food Services 12,836 $338,699 53,511 539 7224 Drinking Places (Alcoholic Beverages) 42,226 $261,017 191,304 375 Fmt 4701 8111 Automotive Repair and Maintenance 146,321 $419,387 565,789 293,668 8112 Electronic and Precision Equipment Repair and Maintenance 10,607 $453,389 36,870 19,190 Sfmt 4725 Frm 00246 7223 8113 20,429 $561,565 81,682 39,887 Commercial and Industrial Machinery and Equipment (except Automotive and Electronic) Repair and Maintenance 18NOR7 Personal and Household Goods Repair and Maintenance 21,460 $274,609 60,015 22,642 8121 Personal Care Services 92,503 $163,221 339,470 203 8122 Death Care Services 14,826 $572,485 71,093 823 8123 Dry-cleaning and Laundry Services 31,666 $233,543 131,482 2,615 8129 Other Personal Services 24,514 $262,944 79,248 1,058 8131 Religious Organizations 162,152 $304,854 758,061 20,924 8132 Grantmaking and Giving Services 14,131 $2,657,994 51,941 240 8133 Social Advocacy Organizations 11,696 $528,285 51,251 646 8134 E:\FR\FM\18NOR7.SGM 8114 Civic and Social Organizations 24,642 $336,464 113,181 1,172 56,541 $514,115 235,299 10,219 18,951,336 1,064,423 8139 Business, Professional, Labor, Political, and Similar Organizations Totals [a] U.S. Census Bureau, Statistics of U.S. Businesses, 2007. ER18NO16.159</GPH> 4,651,919 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 23:45 Nov 17, 2016 Table V-3 Profile of General Industry Very Small Business Entities (Fewer Than 20 Employees) Covered by the Final Standard for Subparts D and I (continued) srobinson on DSK5SPTVN1PROD with RULES6 VerDate Sep<11>2014 Estimated Employment in At-Risk Production Occupations Jkt 241001 (Construction, Installation, PO 00000 Maintenance, Total and Repair Employees Occupations)[c] Average Receipts NAICS NAICS Description Frm 00247 [b] Estimated based on U.S. Census Bureau, Statistics of U.S. Entities[a] per Entity[b] 2007. [c] Based on Bureau of Labor Statistics, Occupational Employment Statistics, 2007. Assumes the same share of at-risk production workers in construction, Fmt 4701 installation, maintenance, and repair occupations as derived for the PEA. NA: Data not available. Sfmt 4725 Source: U.S. Department of Labor, OSHA, Directorate of Standards and Guidance, Office of Regulatory Analysis-Safety. E:\FR\FM\18NOR7.SGM 18NOR7 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 23:45 Nov 17, 2016 Table V-3 Profile of General Industry Very Small Business Entities (Fewer Than 20 Employees) Covered by the Final Standard for Subparts D and I (continued) 82739 ER18NO16.160</GPH> 82740 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 4. Number of Employees Using Fall Protection Based on analysis by ERG (2007), OSHA estimated the numbers of employees using fall protection equipment by extrapolating results obtained from OSHA’s 1999 PPE Cost Survey.105 This establishment-based survey provided industry-specific estimates of the numbers of workers who used various types of personal fall protection equipment, including body harnesses and body belts. The survey reported the percentage of employees in each industry (by SIC codes) who used these types of personal fall protection equipment. ERG applied the survey findings by first associating the SIC industries covered by the survey with the 4-digit NAICS industry codes, and then multiplying total employment (presented above in Table V–1) by the percentage of employees who used personal fall protection equipment. Because different employees might use both body harnesses and body belts, OSHA used the combined value of the two percentages in deriving these estimates. For example, if six percent of employees in a given industry used body harnesses while four percent of employees used body belts, OSHA applied the combined percentage (ten percent) as its estimate of the maximum number of employees using either form of fall protection.106 The survey’s design srobinson on DSK5SPTVN1PROD with RULES6 105 For a description of the survey, see ERG (1999) in the reference section of this FEA. ERG excluded back-support belts and similar ergonomic devices from the types of personal protective equipment investigated by the survey. 106 For the PEA, OSHA applied the upper value in the range—six percent in the example given— and not the combined percentage. VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 did not permit industry-specific estimates for all industries. For example, only aggregated estimates are available for several groups of service, wholesale, and retail trade industries. To make the fall protection estimates consistent with the numbers of at-risk employees, OSHA constrained the estimated number of employees using personal fall protection equipment in any industry to be less than or equal to the numbers of employees in construction, installation, maintenance, and repair occupations shown in Table V–1. Table V–4 presents, by the 4-digit NAICS industry code, OSHA’s estimate of the number of employees using fall protection equipment.107 Overall, OSHA estimated that approximately 2.1 million employees in general industry currently use and will continue to use fall protection. 5. Wage Rates As discussed in detail later in this FEA, OSHA believes that much of the cost impact of the final standard results from the time requirements for additional training and inspections. The Agency based the estimates for these 107 The source of the data in Table V–4 is the OSHA PPE Cost Survey. Estimates shown are based on the combined percentage of employees using body harnesses and body belts. See Eastern Research Group, 1999. An ‘‘NA’’ indicates that the industry was not within the scope of the survey or that the subset of production employees judged to be subject to this standard was zero (NA) (see Table V–1). In ERG, 1999 (OSHA PPE Survey), see Table A2, PPE Category: Fall Protection; PPE Type: Body Harness; PPE Type: Body Belt, where, by two-, three-, and four-digit SIC codes, the number and percentage of employees using the PPE type is reported. For this FEA, ERG converted SIC codes to NAICS codes; see Ex. [OSHA Excel Workbook], tab Fall_protection. PO 00000 Frm 00248 Fmt 4701 Sfmt 4700 costs on the opportunity cost of the labor time devoted to training, inspections, and installation or deployment of fall protection equipment. OSHA valued these opportunity costs in terms of employees’ hourly wages, including benefit and fringe costs. Relying on average hourly earnings as reported by the BLS Occupational Employment Statistics Survey, 2010, OSHA constructed a weighted average hourly wage for the specific occupations comprising production employment for each industry. Similarly, OSHA constructed an average hourly production-supervisor wage for each industry.108 The Agency then multiplied these wages by a mark-up factor to account for fringe benefits. According to the 2010 BLS Employer Costs for Employee Compensation 109 survey (BLS, 2011), this mark-up factor averages 41.5 percent across industries in 2010. The loaded wage rates applied by OSHA in this FEA are in Table V– 5. 108 For example, for NAICS 4871—Scenic and Sightseeing Transportation, Land, NAICS 4872— Scenic and Sightseeing Transportation, Water, and NAICS 4879—Scenic and Sightseeing Transportation, Other, BLS OES did not report production wage and supervisory wage for 2010. Therefore, OSHA’s applied as the base wage for production worker ($19.80), the reported value for the next largest available industry sector, NAICS 48–49, Transportation and Warehousing. For the supervisory wage ($27.45) for NAICS 4871, 4872, and 4879, OSHA applied a wage rate taken from a related transportation industry, NAICS 4851, Urban Transit Systems. Applying the fringe-benefit markup factor of 41.5 percent raised the production worker wage to $28.01 and the supervisory wage to $38.83. 109 BLS (2010) reported a value of 41.5 percent for all private industry for June 2010. E:\FR\FM\18NOR7.SGM 18NOR7 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 82741 Table V-4 Estimated Number of Employees Using Fall Protection Equipment Employees Using Fall Protection[a] Total Employment NAICS NAICS Description Percent Number [c] 1131 Timber Tract Operations 2,632 10.7% NA 1132 Forest Nurseries and Gathering of Forest Products 2,216 18.4% NA 1133 Logging 59,597 3.3% 1,954 1141 Fishing 5,302 N/A NA 1142 Hunting and Trapping 1,845 N/A NA 1153 Support Activities for Forestry 13,740 18.4% NA 2111 Oil and Gas Extraction 141,809 25.0% 24,910 2211 Electric Power Generation, Transmission and Distribution 503,134 16.2% 81,340 2212 Natural Gas Distribution 79,354 16.2% 12,829 2213 Water, Sewage and Other Systems 40,269 16.2% 6,510 3111 fA,nimal Food Manufacturing 46,983 3.0% 1,411 3112 Grain and Oilseed Milling 58,049 3.0% 1,743 3113 Sugar and Confectionery Product Manufacturing 73,457 3.0% 2,206 162,253 3.0% 4,873 3114 Fruit and Vegetable Preserving and Specialty Food Manufacturing 129,692 3.0% 3,895 fA,nimal Slaughtering and Processing 487,813 3.0% 14,650 3117 Seafood Product Preparation and Packaging 33,169 3.0% 996 3118 Bakeries and Tortilla Manufacturing 284,998 3.0% 8,559 3119 Other Food Manufacturing 162,852 3.0% 4,891 3121 Beverage Manufacturing 135,979 3.0% 4,084 3122 Tobacco Manufacturing 20,135 3.4% 688 3131 Fiber, Yarn, and Thread Mills 42,041 2.9% 1,213 3132 Fabric Mills 80,514 2.9% 2,324 3133 Textile and Fabric Finishing and Fabric Coating Mills 41,527 2.9% 1,199 3141 Textile Furnishings Mills 80,278 2.9% 2,317 3149 Other Textile Product Mills 72,700 2.9% 2,098 3151 Apparel Knitting Mills 26,584 2.9% 779 3152 Cut and Sew Apparel Manufacturing 155,742 2.9% 1,463 3159 Apparel Accessories and Other Apparel Manufacturing 15,128 2.9% 340 3161 Leather and Hide Tanning and Finishing 4,856 2.9% 140 3162 Footwear Manufacturing 15,017 2.9% 360 VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 PO 00000 Frm 00249 Fmt 4701 Sfmt 4725 E:\FR\FM\18NOR7.SGM 18NOR7 [b] ER18NO16.161</GPH> Dairy Product Manufacturing 3116 srobinson on DSK5SPTVN1PROD with RULES6 3115 [b] 82742 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations Table V-4 . :qu e Esf 1matdN urn berofE mp1oyees Usmg Fa II Prot ecf1on E 1pment (con f mued) Employees Using Fall Protection[a] Total Employment Percent Number[c] NAICS NAICS Description 3169 Other Leather and Allied Product Manufacturing 16,798 2.9% 100 3211 Sawmills and Wood Preservation 112,425 3.3% 3,687 109,002 3.3% 3,574 3212 Veneer, Plywood, and Engineered Wood Product Manufacturing [b] 3219 Other Wood Product Manufacturing 306,138 3.3% 10,039 3221 Pulp, Paper, and Paperboard Mills 130,068 7.4% 9,625 3222 Converted Paper Product Manufacturing 295,028 7.4% 20,140 3231 Printing and Related Support Activities 631,771 3.4% 10,140 [b] 3241 Petroleum and Coal Products Manufacturing 103,577 17.5% 17,330 [b] 3251 Basic Chemical Manufacturing 165,025 17.9% 19,100 [b] 3252 Resin, Synthetic Rubber, and Artificial Synthetic Fibers and Filaments Manufacturing 88,601 17.9% 13,690 [b] 28,618 17.9% 4,520 [b] 3253 Pesticide, Fertilizer, and Other Agricultural Chemical Manufacturing 3254 Pharmaceutical and Medicine Manufacturing 241,339 17.9% 14,170 [b] 3255 Paint, Coating, and Adhesive Manufacturing 62,493 17.9% 2,710 [b] 3256 Soap, Cleaning Compound, and Toilet Preparation Manufacturing 104,422 17.9% 7,580 [b] 3259 Other Chemical Product and Preparation Manufacturing 103,219 17.9% 6,770 [b] 3261 Plastics Product Manufacturing 707,972 2.7% 19,284 3262 Rubber Product Manufacturing 147,511 2.7% 4,018 3271 Clay Product and Refractory Manufacturing 52,544 8.0% 4,192 3272 Glass and Glass Product Manufacturing 97,876 8.0% 7,810 3273 Cement and Concrete Product Manufacturing 221,488 8.0% 17,673 3274 Lime and Gypsum Product Manufacturing 17,332 8.0% 1,383 3279 Other Nonmetallic Mineral Product Manufacturing 82,888 8.0% 6,614 3311 Iron and Steel Mills and Ferroalloy Manufacturing 109,998 8.3% 9,150 3312 Steel Product Manufacturing from Purchased Steel 44,492 8.3% 3,701 3313 Alumina and Aluminum Production and Processing 63,988 8.3% 5,323 60,466 8.3% 5,030 3314 Nonferrous Metal (except Aluminum) Production and Processing Foundries 159,977 8.3% 13,308 3321 Forging and Stamping 124,406 2.6% 3,246 3322 Cutlery and Handtool Manufacturing 50,529 2.6% 1,318 VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 PO 00000 Frm 00250 Fmt 4701 Sfmt 4725 E:\FR\FM\18NOR7.SGM 18NOR7 ER18NO16.162</GPH> srobinson on DSK5SPTVN1PROD with RULES6 3315 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 82743 Table V-4 Estimated Number of Employees Using Fall Protection Equipment (continued) Employees Using Fall Protection[a] Total Employment Percent Number[c] NAICS NAICS Description 398,786 2.6% 10,404 Boiler, Tank, and Shipping Container Manufacturing 93,356 2.6% 2,436 3325 Hardware Manufacturing 41,763 2.6% 1,090 3326 Spring and Wire Product Manufacturing 53,413 2.6% 1,394 3327 Machine Shops; Tumed Product; and Screw, Nut, and Bolt Manufacturing 395,207 2.6% 10,311 3328 Coating, Engraving, Heat Treating, and Allied Activities 137,183 2.6% 3,579 3329 Other Fabricated Metal Product Manufacturing 271,223 2.6% 7,076 3331 Agriculture, Construction, and Mining Machinery Manufacturing 205,545 2.8% 5,841 3332 Industrial Machinery Manufacturing 130,022 2.8% 3,695 3333 Commercial and Service Industry Machinery Manufacturing 95,729 2.8% 2,720 151,175 2.8% 4,296 3323 Architectural and Structural Metals Manufacturing 3324 3334 Ventilation, Heating, Air-Conditioning, and Commercial Refrigeration Equipment Manufacturing 3335 Metalworking Machinery Manufacturing 167,558 2.8% 4,761 3336 Engine, Turbine, and Power Transmission Equipment Manufacturing 102,482 2.8% 2,912 3339 Other General Purpose Machinery Manufacturing 285,029 2.8% 8,100 3341 Computer and Peripheral Equipment Manufacturing 99,137 2.6% 2,540 3342 Communications Equipment Manufacturing 151,847 2.6% 3,891 3343 Audio and Video Equipment Manufacturing 17,191 2.6% 441 3344 Semiconductor and Other Electronic Component Manufacturing 362,859 2.6% 9,298 384,966 2.6% 9,865 27,288 2.6% 699 3345 3346 Navigational, Measuring, Electromedical, and Control Instruments Manufacturing Manufacturing and Reproducing Magnetic and Optical Media 57,515 2.6% 1,474 Household Appliance Manufacturing 65,666 2.6% 1,683 3353 Electrical Equipment Manufacturing 138,332 2.6% 3,545 3359 Other Electrical Equipment and Component Manufacturing 144,746 2.6% 3,709 3361 Motor Vehicle Manufacturing 196,493 2.7% 5,217 3362 Motor Vehicle Body and Trailer Manufacturing 151,588 2.7% 4,025 3363 Motor Vehicle Parts Manufacturing 593,630 2.7% [b] 15,762 VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 PO 00000 Frm 00251 Fmt 4701 Sfmt 4725 E:\FR\FM\18NOR7.SGM 18NOR7 ER18NO16.163</GPH> Electric Lighting Equipment Manufacturing 3352 srobinson on DSK5SPTVN1PROD with RULES6 3351 [b] 82744 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations Table V-4 . e :qu Es f1matdN urn b er o fE mp1oyees Usmg Fa II Prot ecf1on E 1pment (confmue d) Employees Using Fall Protection[a] Total Employment Percent Number[c] NAICS NAICS Description 3364 Aerospace Product and Parts Manufacturing 408,139 2.7% 10,837 3365 Railroad Rolling Stock Manufacturing 28,712 2.7% 762 3366 Ship and Boat Building 148,864 39.5% 31,360 3369 Other Transportation Equipment Manufacturing 46,721 2.7% 1,241 3371 Household and Institutional Furniture and Kitchen Cabinet Manufacturing 333,974 3.0% 10,002 3372 Office Furniture (including Fixtures) Manufacturing 141,000 3.0% 4,223 3379 Other Furniture Related Product Manufacturing 42,427 3.0% 1,271 3391 Medical Equipment and Supplies Manufacturing 316,789 2.6% 7,210 3399 Other Miscellaneous Manufacturing 364,059 3.0% 10,907 4231 Motor Vehicle and Motor Vehicle Parts and Supplies Merchant Wholesalers 355,828 8.2% 29,089 4232 Furniture and Home Furnishing Merchant Wholesalers 153,866 8.2% 3,320 264,252 8.2% 14,470 705,551 8.2% 57,678 160,366 8.2% 3,670 4233 4234 4235 Lumber and Other Construction Materials Merchant Wholesalers Professional and Commercial Equipment and Supplies Merchant Wholesalers Metal and Mineral (except Petroleum) Merchant Y'fholesalers [b] [b] [b] [b] 449,905 8.2% 25,160 Hardware, and Plumbing and Heating Equipment and Supplies Merchant Wholesalers 232,006 8.2% 17,670 4238 Machinery, Equipment, and Supplies Merchant Wholesalers 723,802 8.2% 59,170 4239 Miscellaneous Durable Goods Merchant Wholesalers 349,701 8.2% 13,550 4241 Paper and Paper Product Merchant Wholesalers 172,308 7.2% 1,920 [b] 4242 Drugs and Druggists' Sundries Merchant Wholesalers 248,057 7.2% 1,600 [b] 4243 Apparel, Piece Goods, and Notions Merchant Wholesalers 196,601 7.2% 490 [b] 4244 Grocery and Related Product Wholesalers 768,342 7.2% 17,420 [b] 4245 Farm Product Raw Material Merchant Wholesalers 61,349 7.2% 1,720 [b] 4246 Chemical and Allied Products Merchant Wholesalers 139,481 7.2% 6,020 [b] 4247 Petroleum and Petroleum Products Merchant Wholesalers 94,845 7.2% 6,050 178,694 7.2% 1,870 [b] 368,372 7.2% 5,970 [b] 4248 4249 VerDate Sep<11>2014 Beer, Wine, and Distilled Alcoholic Beverage Merchant Wholesalers Miscellaneous Nondurable Goods Merchant 23:45 Nov 17, 2016 Jkt 241001 PO 00000 Frm 00252 Fmt 4701 Sfmt 4725 E:\FR\FM\18NOR7.SGM 18NOR7 ER18NO16.164</GPH> Electrical and Electronic Goods Merchant Wholesalers 4237 srobinson on DSK5SPTVN1PROD with RULES6 4236 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 82745 Table V-4 . Esf1mated Nurn berofE mp oyees Usmg Fa II Pro tecf1on Equ 1pment {conf mued) Employees Using Fall Protection[a] Total Employment Percent Number[c] NAICS NAICS Description ~holesalers 4251 ~holesale Electronic Markets and Agents and Brokers 4411 ~utomobile Dealers 4412 7.2% 24,451 1,273,660 3.0% 38,408 Other Motor Vehicle Dealers 168,973 3.0% 5,096 4413 ~utomotive Parts, Accessories, and Tire Stores 495,633 3.0% 14,946 4421 Furniture Stores 271,675 4.2% 4,160 4422 Home Furnishings Stores 324,863 4.2% 13,722 4431 Electronics and Appliance Stores 500,780 4.2% 21,152 4441 Building Material and Supplies Dealers 1,202,392 3.8% 45,188 4442 Lawn and Garden Equipment and Supplies Stores 171,569 3.8% 6,448 4451 Grocery Stores 2,564,533 3.2% 3,590 [b] 4452 Specialty Food Stores 174,558 3.2% 1,510 [b] 4453 Beer, Wine, and Liquor Stores 142,692 3.2% 160 [b] 4461 Health and Personal Care Stores 1,069,187 3.2% 3,760 [b] 4471 Gasoline Stations 888,705 3.2% 28,183 4481 Clothing Stores 1,278,939 4.3% 820 [b] 4482 Shoe Stores 206,338 4.3% 0 [b] 4483 Jewelry, Luggage, and Leather Goods Stores 162,880 4.3% 1,690 [b] 4511 Sporting Goods, Hobby, and Musical Instrument Stores 455,576 4.3% 17,950 4512 Book, Periodical, and Music Stores 184,118 4.3% 200 [b] 4521 Department Stores 1,619,833 2.7% 14,480 [b] 4529 Other General Merchandise Stores 1,277,639 2.7% 24,990 [b] 4531 Florists 93,779 2.7% 190 [b] 4532 Office Supplies, Stationery, and Gift Stores 315,159 2.7% 8,418 4533 Used Merchandise Stores 133,918 4.2% 1,090 4539 Other Miscellaneous Store Retailers 270,971 4.2% 11,258 4541 Electronic Shopping and Mail-Order Houses 268,328 4.2% 2,460 4542 ~ending Machine Operators 49,446 4.2% 2,054 4543 Direct Selling Establishments 193,784 4.2% 8,051 4811 Scheduled Air Transportation 435,853 10.1% 38,230 4812 Nonscheduled Air Transportation 44,795 10.1% 4,508 48,180 10.1% 450 4831 VerDate Sep<11>2014 Deep Sea, Coastal, and Great Lakes Water Transportation 23:45 Nov 17, 2016 Jkt 241001 PO 00000 Frm 00253 Fmt 4701 Sfmt 4725 E:\FR\FM\18NOR7.SGM 18NOR7 [b] [b] [b] [b] [b] ER18NO16.165</GPH> srobinson on DSK5SPTVN1PROD with RULES6 341,524 82746 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations Table V-4 Estimated Number of Employees Using Fall Protection Equipment (continued) Employees Using Fall Protection[a] Total Employment Percent Number[c] NAICS NAICS Description 20,767 6.3% 540 General Freight Trucking 998,697 6.7% 48,700 4842 Specialized Freight Trucking 477,700 6.7% 24,240 4851 Urban Transit Systems 52,912 4.4% 2,329 4852 Interurban and Rural Bus Transportation 17,432 4.4% 767 4853 Taxi and Limousine Service 72,504 4.4% 1,610 4854 School and Employee Bus Transportation 206,787 4.4% 6,700 4855 Charter Bus Industry 28,384 4.4% 1,249 4859 Other Transit and Ground Passenger Transportation 62,604 4.4% 1,530 4861 Pipeline Transportation of Crude Oil 8,347 14.5% 1,214 4862 Pipeline Transportation of Natural Gas 24,683 14.5% 3,589 4869 Other Pipeline Transportation 9,415 14.5% 1,000 4871 Scenic and Sightseeing Transportation, Land 9,690 NA NA 4872 Scenic and Sightseeing Transportation, Water 15,612 NA NA 4879 Scenic and Sightseeing Transportation, Other 2,162 NA NA 4881 Support Activities for Air Transportation 3,676 6.0% 220 4882 Support Activities for Rail Transportation 308 6.0% 18 4883 Support Activities for Water Transportation 1,442 15.2% 219 4884 Support Activities for Road Transportation 9,719 6.0% 580 4885 Freight Transportation Arrangement 212,165 6.0% 1,820 [b] 4889 Other Support Activities for Transportation 34,654 6.0% 930 [b] 4921 Couriers 528,177 6.0% 13,900 [b] 4922 Local Messengers and Local Delivery 41,013 6.0% 220 [b] 4931 !Warehousing and Storage 679,077 6.7% 21,630 [b] 5111 Newspaper, Periodical, Book, and Directory Publishers 688,034 3.4% 5,780 [b] 5112 Software Publishers 346,675 1.3% 1,780 [b] 5121 Motion Picture and Video Industries 298,598 N/A N/A 5122 Sound Recording Industries 22,049 15.5% 150 [b] 5151 Radio and Television Broadcasting 252,294 15.5% 2,860 [b] 5152 Cable and Other Subscription Programming 41,674 15.5% 6,471 5161 lntemet Publishing and Broadcasting 46,627 NA NA 5171 !Wired Telecommunications Carriers 621,712 15.5% 96,533 5172 !Wireless Telecommunications Carriers (except 277,622 15.5% 11,410 VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 PO 00000 Frm 00254 Fmt 4701 Sfmt 4725 E:\FR\FM\18NOR7.SGM 18NOR7 [b] [b] [b] [b] ER18NO16.166</GPH> Inland Water Transportation 4841 srobinson on DSK5SPTVN1PROD with RULES6 4832 82747 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations Table V-4 . :qu1pment (con fmued) Esf1matdN urn berofE mp oyees Usmg Fa II Pro tecf1on E e Employees Using Fall Protection[a] Total Employment Percent Number[c] NAICS NAICS Description Satellite) 5173 Telecommunications Resellers 34,973 15.5% 5,430 5174 Satellite Telecommunications 13,149 15.5% 2,042 5175 Cable and Other Program Distribution 240,038 NA NA 5179 Other Telecommunications 14,428 NA NA 5181 Internet Service Providers and Web Search Portals 71,307 NA NA 5182 Data Processing, Hosting, and Related Services 375,474 NA NA 5191 Other Information Services 54,659 NA NA 5211 Monetary Authorities - Central Bank 20,223 NA NA 5221 Depository Credit Intermediation 2,137,764 NA NA 5222 Nondepository Credit Intermediation 747,414 NA NA 5223 !Activities Related to Credit Intermediation 341,041 NA NA 5231 Securities and Commodity Contracts Intermediation and Brokerage 528,722 NA NA 5232 Securities and Commodity Exchanges 8,600 NA NA 5239 Other Financial Investment Activities 404,402 NA NA 5241 Insurance Carriers 1,423,578 1.6% 3,700 [b] 903,366 1.6% 1,270 [b] 33,396 1.6% 520 5242 !Agencies, Brokerages, and Other Insurance Related !Activities 5259 Other Investment Pools and Funds 5311 Lessors of Real Estate 539,169 1.6% 8,393 5312 Offices of Real Estate Agents and Brokers 367,125 1.6% 5,715 5313 !Activities Related to Real Estate 647,869 1.6% 10,086 5321 !Automotive Equipment Rental and Leasing 199,872 1.6% 3,111 5322 Consumer Goods Rental 237,074 1.6% 3,691 5323 General Rental Centers 35,493 1.6% 553 5324 Commercial and Industrial Machinery and Equipment Rental and Leasing 165,838 1.6% 2,582 31,735 1.6% 250 Lessors of Nonfinancial Intangible Assets (except 5331 Copyrighted Works) 1,206,577 1.6% 580 [b] !Accounting, Tax Preparation, Bookkeeping, and Payroll Services 1,357,368 1.6% 5,310 [b] 5413 !Architectural, Engineering, and Related Services 1,434,803 1.9% 26,805 5414 Specialized Design Services 134,739 1.9% 2,390 VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 PO 00000 Frm 00255 Fmt 4701 Sfmt 4725 E:\FR\FM\18NOR7.SGM 18NOR7 ER18NO16.167</GPH> Legal Services 5412 srobinson on DSK5SPTVN1PROD with RULES6 5411 82748 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations Table V-4 . Esf1matdN urn berofE mp1oyees USlnQ FaII Prot ec f1on E e :qUI pmen t {con f mued) Employees Using Fall Protection[a] Total Employment Percent Number[c] NAICS NAICS Description 5415 5416 1,297,710 Computer Systems Design and Related Services Management, Scientific, and Technical Consulting Services 1.9% 22,640 1,015,109 1.9% 18,965 Scientific Research and Development Services 688,052 1.9% 11,360 5418 Advertising and Related Services 445,590 1.9% 8,000 5419 Other Professional, Scientific, and Technical Services 599,993 1.9% 3,830 5511 Management of Companies and Enterprises 3,121.402 1.6% 48,592 5611 Office Administrative Services 472,690 1.6% 7,359 5612 Facilities Support Services 189,275 1.6% 2,947 5613 Employment Services 5,131.446 1.6% 79,883 5614 Business Support Services 766,237 1.6% 3,890 [b] 5615 Travel Arrangement and Reservation Services 243,943 1.6% 1,270 [b] 5616 Investigation and Security Services 777,680 1.6% 12,106 5617 Services to Buildings and Dwellings 1,722,595 1.6% 26,816 5619 Other Support Services 324,602 1.6% 5,053 5621 Waste Collection 185,047 1.6% 2,881 5622 Waste Treatment and Disposal 56,755 1.6% 884 5629 Remediation and Other Waste Management Services 113,391 1.6% 1.765 6111 Elementary and Secondary Schools 827,165 NA NA 6112 Junior Colleges 80,568 NA NA 6113 Colleges, Universities, and Professional Schools 1,572,333 NA NA 6114 Business Schools and Computer and Management Training 65,818 NA NA 6115 Technical and Trade Schools 119,020 NA NA 6116 Other Schools and Instruction 302,908 NA NA 6117 Educational Support Services 71,573 NA NA 6211 Offices of Physicians 2,169,682 1.5% 3,150 [b] 6212 Offices of Dentists 824,770 1.5% 520 [b] 6213 Offices of Other Health Practitioners 614,171 1.5% 600 [b] 6214 Outpatient Care Centers 695,863 1.5% 3,680 [b] 6215 Medical and Diagnostic Laboratories 221.709 1.5% 490 [b] 6216 Home Health Care Services 1,021,573 1.5% 1,190 (b] 6219 Other Ambulatory Health Care Services 269,271 1.5% 2,670 [b] VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 PO 00000 Frm 00256 Fmt 4701 Sfmt 4725 E:\FR\FM\18NOR7.SGM 18NOR7 [b] ER18NO16.168</GPH> srobinson on DSK5SPTVN1PROD with RULES6 5417 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 82749 Table V-4 . :qu e Esf 1matdN urn berofE mp1oyees Usmg Fa II Prot ecf1on E 1pment (con f mued) Employees Using Fall Protection[a] Total Employment Percent Number[c] NAICS NAICS Description 5,041,848 6222 Psychiatric and Substance Abuse Hospitals 6223 6231 6232 Specialty (except Psychiatric and Substance Abuse) Hospitals Nursing Care Facilities Residential Mental Retardation, Mental Health and Substance Abuse Facilities 65,370 216,343 General Medical and Surgical Hospitals 1.5% 1.5% 3,242 219,627 1.5% 2,520 1,646,321 6221 1.5% 21,780 557,907 1.5% 5,110 6233 Community Care Facilities for the Elderly 685,024 1.5% Other Residential Care Facilities 153,881 1.5% 2,290 6241 Individual and Family Services 1'108, 173 1.5% 5,560 167,691 1.5% [b] 10,266 6239 [b] 2,513 6242 Community Food and Housing, and Emergency and Other Relief Services [b] 6243 Vocational Rehabilitation Services 330,145 1.5% 3,480 [b] 6244 Child Day Care Services 853,648 1.5% 1,760 [b] 7111 Performing Arts Companies 134,434 NA NA 7112 Spectator Sports 126,092 NA NA 112,354 N/A N/A 17,420 NA NA 7113 7114 Promoters of Performing Arts, Sports, and Similar Events Agents and Managers for Artists, Athletes, Entertainers, and Other Public Figures 7115 Independent Artists, Writers, and Performers 45,772 NA NA 7121 Museums, Historical Sites, and Similar Institutions 128,539 NA NA 7131 Amusement Parks and Arcades 128,369 NA NA 7132 Gambling Industries 205,307 NA NA 7139 Other Amusement and Recreation Industries 1,110,280 NA NA 7211 Traveler Accommodation 1,856,110 1.3% 23,602 39,717 1.3% 505 11,727 1.3% 149 7212 RV (Recreational Vehicle) Parks and Recreational Camps Full-Service Restaurants 4,579,941 3.3% 3,580 [b] 7222 Limited-Service Eating Places 4,136,741 3.3% 4,080 [b] 7223 Special Food Services 575,579 3.3% 6,610 [b] 7224 Drinking Places (Alcoholic Beverages) 365,049 3.3% 690 [b] 8111 Automotive Repair and Maintenance 893,198 4.0% 35,820 8112 Electronic and Precision Equipment Repair and 135,243 3.4% 4,659 VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 PO 00000 Frm 00257 Fmt 4701 Sfmt 4725 E:\FR\FM\18NOR7.SGM 18NOR7 ER18NO16.169</GPH> Rooming and Boarding Houses 7221 srobinson on DSK5SPTVN1PROD with RULES6 7213 82750 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations Table V-4 Estimated Number of Employees Using Fall Protection Equipment (continued) Employees Using Fall Protection[a] Total Employment Percent Number[c) NAICS NAICS Description Maintenance 8113 8114 Commercial and Industrial Machinery and Equipment (except Automotive and Electronic) Repair and Maintenance Maintenance 3.4% 6,863 95,272 Personal and Household Goods Repair and 199,239 3.4% 3,282 8121 Personal Care Services 616,538 2.4% 420 [b] 8122 Death Care Services 136,928 2.4% 1,790 [b] 8123 Dry-cleaning and Laundry Services 374,356 2.4% 6,800 8129 Other Personal Services 252,462 2.4% 3,680 8131 Religious Organizations 1,691,182 1.6% 4,940 8132 Grantmaking and Giving Services 146,709 1.6% 700 8133 Social Advocacy Organizations 128,522 1.6% 2,001 8134 Civic and Social Organizations 330,219 1.6% 4,540 519,905 1.6% 8,094 112,328,837 1.9% 2,113,676 8139 Business, Professional, Labor, Political, and Similar Organizations Totals [b] [a] Source: OSHA PPE Cost Survey. Estimate based on the combined percentage of employees using body harnesses and body belts. See Eastern Research Group, 1999. An "NA" indicates that the industry was not within the scope of the survey or that the subset of production employees judged to be subject to this standard was zero (NA) (see Table V-1). In ERG, 1999 (OSHA PPE Survey), see Table A2, PPE Category: Fall Protection; PPE Type: Body Harness; PPE Type: Body Belt, where by two-, three-, and four-digit SIC code, the number and percentage of employees using PPE type is reported. For this FEA, ERG converted SIC codes to NAICS codes; see Ex. [OSHA Excel Workbook], tab Fall_protection. [b] Number using fall protection constrained to be less than or equal to the number of at-risk employees in construction, installation, maintenance, and repair occupations as shown in Table V-1. [c] Due to rounding, the number shown may differ from the product of total employment multiplied by the percentage of employees using fall protection. VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 PO 00000 Frm 00258 Fmt 4701 Sfmt 4725 E:\FR\FM\18NOR7.SGM 18NOR7 ER18NO16.170</GPH> srobinson on DSK5SPTVN1PROD with RULES6 Source: U.S. Department of Labor, OSHA, Directorate of Standards and Guidance, Office of Regulatory Analysis, based on U.S. Census Bureau, Statistics of U.S. Businesses for 2002 and 2006; ERG, 2007; and ERG, 1999. Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 82751 Table V-5 Wage Rates . Industnes Affeced b OSHA's F1naI Stan dard ~or W alk"lnQ-W ork"1ng Surfaces . t 1n >Y Production Worker Mean Hourly Wage Production Worker Supervisor Mean Hourly Wage Base Rate NAICS Industry With Fringe Markup Base Rate With Fringe Markup 1131 Timber Tract Operations $14.13 $19.99 $18.45 $26.10 1132 Forest Nurseries and Gathering of Forest Products $14.13 $19.99 $18.45 $26.10 1133 Logging $14.13 $19.99 $18.45 $26.10 1141 Fishing $11.46 $16.21 $20.95 $29.63 1142 Hunting and Trapping $11.46 $16.21 $20.95 $29.63 1153 Support Activities for Forestry $11.30 $15.98 $21.14 $29.90 2111 Oil and Gas Extraction $28.93 $40.92 $36.11 $51.07 $31.89 $45.11 $38.35 $54.24 2211 Electric Power Generation, Transmission and Distribution 2212 Natural Gas Distribution $30.68 $43.39 $39.50 $55.87 2213 Water, Sewage and Other Systems $21.54 $30.47 $29.45 $41.65 3111 Animal Food Manufacturing $15.06 $21.30 $24.63 $34.84 3112 Grain and Oilseed Milling $17.83 $25.22 $27.36 $38.70 3113 Sugar and Confectionery Product Manufacturing $14.87 $21.03 $25.21 $35.66 $14.01 $19.82 $24.52 $34.68 3114 Fruit and Vegetable Preserving and Specialty Food Manufacturing $16.00 $22.63 $25.89 $36.62 Animal Slaughtering and Processing $12.15 $17.19 $23.18 $32.79 3117 Seafood Product Preparation and Packaging $11.69 $16.53 $23.09 $32.66 3118 Bakeries and Tortilla Manufacturing $13.48 $19.07 $23.36 $33.04 3119 Other Food Manufacturing $14.47 $20.47 $25.51 $36.08 3121 Beverage Manufacturing $17.60 $24.89 $27.31 $38.63 3122 Tobacco Manufacturing $19.30 $27.30 $27.01 $38.20 3131 Fiber, Yam, and Thread Mills $12.88 $18.22 $22.87 $32.35 3132 Fabric Mills $14.08 $19.92 $23.08 $32.64 3133 Textile and Fabric Finishing and Fabric Coating Mills $12.95 $18.32 $23.27 $32.91 3141 Textile Furnishings Mills $12.96 $18.33 $22.64 $32.02 3149 Other Textile Product Mills $12.54 $17.74 $21.57 $30.51 3151 Apparel Knitting Mills $11.58 $16.38 $20.69 $29.26 VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 PO 00000 Frm 00259 Fmt 4701 Sfmt 4725 E:\FR\FM\18NOR7.SGM 18NOR7 ER18NO16.171</GPH> Dairy Product Manufacturing 3116 srobinson on DSK5SPTVN1PROD with RULES6 3115 82752 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations Table V-5 Wage Rates in Industries Affected by OSHA's Final Standard for Walking-Working Surfaces (continued) Production Worker Mean Hourly Wage Base Rate NAICS Industry Production Worker Supervisor Mean Hourly Wage With Fringe Markup Base Rate With Fringe Markup 3152 Cut and Sew Apparel Manufacturing $11.56 $16.35 $20.29 $28.70 3159 Apparel Accessories and Other Apparel Manufacturing $11.24 $15.90 $20.35 $28.78 3161 Leather and Hide Tanning and Finishing $12.93 $18.29 $22.67 $32.07 3162 Footwear Manufacturing $12.56 $17.77 $22.36 $31.63 3169 Other Leather and Allied Product Manufacturing $12.28 $17.37 $21.61 $30.57 3211 Sawmills and Wood Preservation $14.75 $20.86 $25.00 $35.36 $14.58 $20.62 $24.58 $34.77 3212 Veneer, Plywood, and Engineered Wood Product Manufacturing 3219 Other Wood Product Manufacturing $13.75 $19.45 $23.04 $32.59 3221 Pulp, Paper, and Paperboard Mills $21.42 $30.30 $33.79 $47.79 3222 Converted Paper Product Manufacturing $16.87 $23.86 $27.57 $39.00 3231 Printing and Related Support Activities $16.92 $23.93 $27.05 $38.26 3241 Petroleum and Coal Products Manufacturing $26.69 $37.75 $35.71 $50.51 3251 Basic Chemical Manufacturing $23.90 $33.80 $33.57 $47.48 $21.52 $30.44 $31.99 $45.25 $20.76 $29.36 $31.06 $43.93 3252 3253 Resin, Synthetic Rubber, and Artificial Synthetic Fibers and Filaments Manufacturing Pesticide, Fertilizer, and Other Agricultural Chemical Manufacturing 3254 Pharmaceutical and Medicine Manufacturing $17.91 $25.33 $30.09 $42.56 3255 Paint, Coating, and Adhesive Manufacturing $17.95 $25.39 $29.41 $41.60 $16.01 $22.64 $27.40 $38.76 3256 Soap, Cleaning Compound, and Toilet Preparation Manufacturing $17.55 $24.82 $28.56 $40.40 Plastics Product Manufacturing $14.90 $21.07 $24.99 $35.35 3262 Rubber Product Manufacturing $16.65 $23.55 $24.47 $34.61 3271 Clay Product and Refractory Manufacturing $15.67 $22.16 $25.55 $36.14 3272 Glass and Glass Product Manufacturing $16.49 $23.32 $27.37 $38.71 3273 Cement and Concrete Product Manufacturing $16.44 $23.25 $26.92 $38.08 3274 Lime and Gypsum Product Manufacturing $18.49 $26.15 $26.70 $37.77 VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 PO 00000 Frm 00260 Fmt 4701 Sfmt 4725 E:\FR\FM\18NOR7.SGM 18NOR7 ER18NO16.172</GPH> Other Chemical Product and Preparation Manufacturing 3261 srobinson on DSK5SPTVN1PROD with RULES6 3259 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 82753 Table V-5 Wage Rates in Industries Affected by OSHA's Final Standard for Walking-Working Surfaces (continued) Production Worker Mean Hour1y Wage Base Rate NAICS Industry With Fringe Markup Production Worker Supervisor Mean Hour1~ Wage With Fringe Base Rate Markup 3279 Other Nonmetallic Mineral Product Manufacturing $16.16 $22.86 $26.32 $37.23 3311 Iron and Steel Mills and Ferroalloy Manufacturing $21.33 $30.17 $30.13 $42.62 3312 Steel Product Manufacturing from Purchased Steel $17.13 $24.23 $26.84 $37.96 3313 Alumina and Aluminum Production and Processing $18.31 $25.90 $27.72 $39.21 $18.01 $25.47 $27.23 $38.51 3314 Nonferrous Metal (except Aluminum) Production and Processing 3315 Foundries $16.25 $22.98 $25.90 $36.63 3321 Forging and Stamping $17.27 $24.43 $26.81 $37.92 3322 Cutlery and Handtool Manufacturing $16.81 $23.78 $28.77 $40.69 3323 Architectural and Structural Metals Manufacturing $16.38 $23.17 $26.14 $36.97 3324 Boiler, Tank, and Shipping Container Manufacturing $17.71 $25.05 $27.93 $39.50 3325 Hardware Manufacturing $15.73 $22.25 $25.85 $36.56 3326 Spring and Wire Product Manufacturing $15.82 $22.38 $25.77 $36.45 $18.17 $25.70 $28.68 $40.57 3327 Machine Shops; Tumed Product; and Screw, Nut, and Bolt Manufacturing 3328 Coating, Engraving, Heat Treating, and Allied Activities $15.36 $21.73 $25.63 $36.25 3329 Other Fabricated Metal Product Manufacturing $16.96 $23.99 $28.02 $39.63 $17.68 $25.01 $28.26 $39.97 $18.30 $25.88 $28.29 $40.01 $17.10 $24.19 $29.05 $41.09 $15.63 $22.11 $26.25 $37.13 $19.25 $27.23 $30.14 $42.63 $18.33 $25.93 $29.42 $41.61 3331 3332 3333 3334 3335 Manufacturing Industrial Machinery Manufacturing Commercial and Service Industry Machinery Manufacturing Ventilation, Heating, Air-Conditioning, and Commercial Refrigeration Equipment Manufacturing Metalworking Machinery Manufacturing Engine, Turbine, and Power Transmission Equipment Manufacturing 3339 Other General Purpose Machinery Manufacturing $17.69 $25.02 $28.21 $39.90 3341 Computer and Peripheral Equipment Manufacturing $16.42 $23.22 $27.12 $38.36 VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 PO 00000 Frm 00261 Fmt 4701 Sfmt 4725 E:\FR\FM\18NOR7.SGM 18NOR7 ER18NO16.173</GPH> srobinson on DSK5SPTVN1PROD with RULES6 3336 Agriculture, Construction, and Mining Machinery 82754 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations Table V-5 Wage Rates in Industries Affected by OSHA's Final Standard for Walking-Working Surfaces (continued) Production Worker Mean Hour1y Wage Base Rate NAICS Industry With Fringe Markup Production Worker Supervisor Mean Hour1~ Wage With Fringe Base Rate Markup 3342 Communications Equipment Manufacturing $16.85 $23.83 $30.32 $42.89 3343 Audio and Video Equipment Manufacturing $15.60 $22.07 $27.66 $39.12 $15.61 $22.08 $27.84 $39.38 $17.11 $24.20 $29.61 $41.88 $16.52 $23.37 $26.80 $37.91 3344 3345 3346 Semiconductor and Other Electronic Component Manufacturing Navigational, Measuring, Electromedical, and Control Instruments Manufacturing Manufacturing and Reproducing Magnetic and Optical Media 3351 Electric Lighting Equipment Manufacturing $15.57 $22.02 $25.52 $36.10 3352 Household Appliance Manufacturing $15.91 $22.50 $25.15 $35.57 3353 Electrical Equipment Manufacturing $16.30 $23.06 $26.99 $38.18 $15.73 $22.25 $26.83 $37.95 3359 Other Electrical Equipment and Component Manufacturing 3361 Motor Vehicle Manufacturing $24.64 $34.85 $32.75 $46.32 3362 Motor Vehicle Body and Trailer Manufacturing $15.94 $22.55 $24.74 $34.99 3363 Motor Vehicle Parts Manufacturing $17.17 $24.29 $26.35 $37.27 3364 Aerospace Product and Parts Manufacturing $21.12 $29.87 $32.33 $45.73 3365 Railroad Rolling Stock Manufacturing $16.97 $24.00 $26.53 $37.52 3366 Ship and Boat Building $18.81 $26.61 $29.77 $42.11 3369 Other Transportation Equipment Manufacturing $19.00 $26.87 $28.05 $39.67 $14.58 $20.62 $23.26 $32.90 3371 Household and Institutional Furniture and Kitchen Cabinet Manufacturing $15.42 $21.81 $25.09 $35.49 Other Furniture Related Product Manufacturing $13.35 $18.88 $23.86 $33.75 3391 Medical Equipment and Supplies Manufacturing $16.70 $23.62 $28.74 $40.65 3399 Other Miscellaneous Manufacturing $15.01 $21.23 $24.86 $35.16 $15.91 $22.50 $25.17 $35.60 $14.16 $20.03 $24.16 $34.17 4231 4232 VerDate Sep<11>2014 Motor Vehicle and Motor Vehicle Parts and Supplies Merchant Wholesalers Furniture and Home Furnishing Merchant Wholesalers 23:45 Nov 17, 2016 Jkt 241001 PO 00000 Frm 00262 Fmt 4701 Sfmt 4725 E:\FR\FM\18NOR7.SGM 18NOR7 ER18NO16.174</GPH> Office Furniture (including Fixtures) Manufacturing 3379 srobinson on DSK5SPTVN1PROD with RULES6 3372 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 82755 Table V-5 Wage Rates in Industries Affected by OSHA's Final Standard for Walking-Working Surfaces (continued) Production Worker Production Worker Supervisor Mean Mean Hourly Wage Hourly Wage With With Fringe Fringe NAICS Industry Base Rate Markup Base Rate Markup 4233 4234 4235 4236 4237 4238 Lumber and Other Construction Materials Merchant Merchant Wholesalers Metal and Mineral (except Petroleum) Merchant Wholesalers Electrical and Electronic Goods Merchant Wholesalers Hardware, and Plumbing and Heating Equipment and Supplies Merchant Wholesalers Machinery, Equipment, and Supplies Merchant Wholesalers $21.47 $24.70 $34.94 $15.73 $22.25 $26.73 $37.81 $24.13 $28.26 $39.97 $15.70 $22.21 $27.53 $38.94 $15.84 $22.40 $25.93 $36.68 $17.05 Professional and Commercial Equipment and Supplies $15.18 $17.06 Wholesalers $24.12 $28.87 $40.83 4239 Miscellaneous Durable Goods Merchant Wholesalers $14.94 $21.13 $24.84 $35.13 4241 Paper and Paper Product Merchant Wholesalers $15.35 $21.71 $25.73 $36.39 4242 Drugs and Druggists' Sundries Merchant Wholesalers $14.50 $20.51 $27.00 $38.19 $14.30 $20.23 $26.48 $37.45 4243 Apparel, Piece Goods, and Notions Merchant Wholesalers 4244 Grocery and Related Product Wholesalers $14.02 $19.83 $25.44 $35.98 4245 Farm Product Raw Material Merchant Wholesalers $14.51 $20.52 $21.81 $30.85 4246 !Chemical and Allied Products Merchant Wholesalers $17.39 $24.60 $27.30 $38.61 $22.20 $31.40 $33.09 $46.80 $16.72 $23.65 $26.45 $37.41 $14.00 $19.80 $23.81 $33.68 4247 4248 4249 Petroleum and Petroleum Products Merchant Wholesalers Beer, Wine, and Distilled Alcoholic Beverage Merchant Wholesalers Miscellaneous Nondurable Goods Merchant Wholesalers $15.78 $22.32 $27.00 $38.19 Automobile Dealers $21.44 $30.33 $34.21 $48.39 4412 Other Motor Vehicle Dealers $15.07 $21.32 $28.56 $40.40 4413 Automotive Parts, Accessories, and Tire Stores $14.09 $19.93 $24.77 $35.04 4421 Furniture Stores $15.25 $21.57 $24.64 $34.85 VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 PO 00000 Frm 00263 Fmt 4701 Sfmt 4725 E:\FR\FM\18NOR7.SGM 18NOR7 ER18NO16.175</GPH> Wholesale Electronic Markets and Agents and Brokers 4411 srobinson on DSK5SPTVN1PROD with RULES6 4251 82756 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations Table V-5 Wage Rates in Industries Affected by OSHA's Final Standard for Walking-Working Surfaces (continued) Production Worker Mean Hourly Wage Production Worker Supervisor Mean Hourly Wage Base Rate NAICS Industry With Fringe Markup Base Rate Fringe Markup With 4422 Home Furnishings Stores $13.50 $19.09 $20.89 $29.55 4431 Electronics and Appliance Stores $13.79 $19.50 $22.56 $31.91 4441 Building Material and Supplies Dealers $14.82 $20.96 $23.97 $33.90 4442 Lawn and Garden Equipment and Supplies Stores $13.96 $19.75 $21.32 $30.16 4451 Grocery Stores $13.97 $19.76 $21.40 $30.27 4452 Specialty Food Stores $13.12 $18.56 $23.39 $33.08 4453 Beer, Wine, and Liquor Stores $15.02 $21.24 $21.60 $30.55 4461 Health and Personal Care Stores $12.83 $18.15 $23.70 $33.52 4471 Gasoline Stations $16.94 $23.96 $22.41 $31.70 4481 Clothing Stores $14.09 $19.93 $27.32 $38.64 4482 Shoe Stores $12.02 $17.00 $26.92 $38.08 4483 Jewelry, Luggage, and Leather Goods Stores $19.61 $27.74 $26.04 $36.83 4511 Sporting Goods, Hobby, and Musical Instrument Stores $11.67 $16.51 $20.75 $29.35 4512 Book, Periodical, and Music Stores $16.17 $22.87 $20.74 $29.34 4521 Department Stores $11.11 $15.71 $24.10 $34.09 4529 Other General Merchandise Stores $11.56 $16.35 $21.90 $30.98 4531 Florists $9.80 $13.86 $22.22 $31.43 4532 Office Supplies, Stationery, and Gift Stores $12.79 $18.09 $18.16 $25.69 4533 Used Merchandise Stores $12.75 $18.03 $22.38 $31.65 4539 Other Miscellaneous Store Retailers $13.95 $19.73 $23.89 $33.79 4541 Electronic Shopping and Mail-Order Houses $14.37 $20.33 $23.91 $33.82 4542 Vending Machine Operators $13.92 $19.69 $24.00 $33.95 4543 Direct Selling Establishments $16.03 $22.67 $24.35 $34.44 4811 Scheduled Air Transportation $26.36 $37.28 $27.45 $38.83 4812 Nonscheduled Air Transportation $22.28 $31.51 $27.45 $38.83 $20.02 $28.32 $34.23 $48.42 Deep Sea, Coastal, and Great Lakes Water Transportation 4832 Inland Water Transportation $19.14 $27.07 $27.74 $39.24 4841 General Freight Trucking $17.33 $24.51 $27.08 $38.30 VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 PO 00000 Frm 00264 Fmt 4701 Sfmt 4725 E:\FR\FM\18NOR7.SGM 18NOR7 ER18NO16.176</GPH> srobinson on DSK5SPTVN1PROD with RULES6 4831 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 82757 Table V-5 Wage Rates in Industries Affected by OSHA's Final Standard for Walking-Working Surfaces (continued) Production Worker Mean Hourly Wage NAICS Industry Base Rate With Fringe Markup Production Worker Supervisor Mean Houri~ Wage With Fringe Base Rate Markup $17.68 $25.01 $28.64 $40.51 Urban Transit Systems $18.50 $26.17 $27.45 $38.83 4852 Interurban and Rural Bus Transportation $18.50 $26.17 $27.45 $38.83 4853 Taxi and Limousine Service $18.50 $26.17 $27.45 $38.83 4854 School and Employee Bus Transportation $18.50 $26.17 $27.45 $38.83 4855 Charter Bus Industry $18.50 $26.17 $27.45 $38.83 4859 Other Transit and Ground Passenger Transportation $18.50 $26.17 $27.45 $38.83 4861 Pipeline Transportation of Crude Oil $27.73 $39.22 $29.97 $42.39 4862 Pipeline Transportation of Natural Gas $27.33 $38.66 $32.94 $46.59 4869 Other Pipeline Transportation $28.20 $39.89 $33.56 $47.47 4871 Scenic and Sightseeing Transportation, Land $19.80 $28.01 $27.45 $38.83 4872 Scenic and Sightseeing Transportation, Water $19.80 $28.01 $27.45 $38.83 4879 Scenic and Sightseeing Transportation, Other $19.80 $28.01 $27.45 $38.83 4881 Support Activities for Air Transportation $19.56 $27.67 $28.19 $39.87 4882 Support Activities for Rail Transportation $18.60 $26.31 $21.29 $30.11 4883 Support Activities for Water Transportation $18.67 $26.41 $26.74 $37.82 4884 Support Activities for Road Transportation $18.56 $26.25 $25.80 $36.49 4885 Freight Transportation Arrangement $21.88 $30.95 $25.80 $36.49 4889 Other Support Activities for Transportation $14.79 $20.92 $22.34 $31.60 4921 Couriers $21.46 $30.35 $27.45 $38.83 4922 Local Messengers and Local Delivery $16.69 $23.61 $27.45 $38.83 4931 Warehousing and Storage $15.49 $21.91 $25.15 $35.57 5111 Newspaper, Periodical, Book, and Directory Publishers $17.27 $24.43 $27.58 $39.01 5112 Software Publishers $17.39 $24.60 $27.65 $39.11 5121 Motion Picture and Video Industries $18.36 $25.97 $28.22 $39.92 5122 Sound Recording Industries $17.31 $24.48 $27.86 $39.41 5151 Radio and Television Broadcasting $17.31 $24.48 $27.58 $39.01 5152 Cable and Other Subscription Programming $17.31 $24.48 $27.58 $39.01 VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 PO 00000 Frm 00265 Fmt 4701 Sfmt 4725 E:\FR\FM\18NOR7.SGM 18NOR7 ER18NO16.177</GPH> Specialized Freight Trucking 4851 srobinson on DSK5SPTVN1PROD with RULES6 4842 82758 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations Table V-5 Wage Rates in Industries Affected by OSHA's Final Standard for Walking-Working Surfaces (continued) Production Worker Mean Hourly Wage Base Rate NAICS Industry Production Worker Supervisor Mean Hourly Wage With Fringe Markup Base Rate With Fringe Markup 5161 Internet Publishing and Broadcasting $17.31 $24.48 $27.58 $39.01 5171 Wired Telecommunications Carriers $23.05 $32.60 $27.58 $39.01 5172 Wireless Telecommunications Carriers (except Satellite) $15.49 $21.91 $27.58 $39.01 5173 Telecommunications Resellers $21.65 $30.62 $27.58 $39.01 5174 Satellite Telecommunications $21.65 $30.62 $27.58 $39.01 5175 Cable and Other Program Distribution $21.65 $30.62 $27.58 $39.01 5179 Other Telecommunications $22.15 $31.33 $27.58 $39.01 5181 Internet Service Providers and Web Search Portals $15.30 $21.64 $26.93 $38.09 5182 Data Processing, Hosting, and Related Services $15.30 $21.64 $26.93 $38.09 5191 Other Information Services $19.44 $27.50 $29.95 $42.36 5211 Monetary Authorities - Central Bank $21.50 $30.41 $35.11 $49.66 5221 Depository Credit Intermediation $21.34 $30.18 $35.11 $49.66 5222 Nondepository Credit Intermediation $14.96 $21.16 $35.11 $49.66 5223 Activities Related to Credit Intermediation $20.00 $28.29 $35.11 $49.66 $19.34 $27.36 $35.11 $49.66 5231 Securities and Commodity Contracts Intermediation and Brokerage 5232 Securities and Commodity Exchanges $21.49 $30.40 $35.11 $49.66 5239 Other Financial Investment Activities $21.49 $30.40 $35.11 $49.66 5241 Insurance Carriers $19.20 $27.16 $34.47 $48.76 $13.93 $19.70 $34.72 $49.11 5242 Agencies, Brokerages, and Other Insurance Related Activities $17.91 $25.33 $34.72 $49.11 Lessors of Real Estate $23.81 $33.68 $32.11 $45.42 5312 Offices of Real Estate Agents and Brokers $17.08 $24.16 $31.63 $44.74 5313 Activities Related to Real Estate $21.03 $29.75 $31.44 $44.47 5321 Automotive Equipment Rental and Leasing $14.91 $21.09 $24.11 $34.10 5322 Consumer Goods Rental $12.53 $17.72 $22.92 $32.42 5323 General Rental Centers $14.78 $20.91 $24.42 $34.54 VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 PO 00000 Frm 00266 Fmt 4701 Sfmt 4725 E:\FR\FM\18NOR7.SGM 18NOR7 ER18NO16.178</GPH> Other Investment Pools and Funds 5311 srobinson on DSK5SPTVN1PROD with RULES6 5259 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 82759 Table V-5 Wage Rates in Industries Affected by OSHA's Final Standard for Walking-Working Surfaces (continued) Production Worker Mean Hourly Wage Base Rate 5324 5331 5411 5412 With Fringe Markup Base Rate With Fringe Markup $18.26 $25.83 $26.15 $36.99 $11.86 $16.78 $25.37 $35.88 $18.60 NAICS Industry Production Worker Supervisor Mean Hourly Wage $26.31 $30.54 $43.20 $18.47 $26.12 $30.97 $43.80 Commercial and Industrial Machinery and Equipment Rental and Leasing Lessors of Nonfinancial Intangible Assets (except Copyrighted Works) Legal Services Accounting, Tax Preparation, Bookkeeping, and Payroll Services 5413 Architectural, Engineering, and Related Services $19.32 $27.33 $31.52 $44.58 5414 Specialized Design Services $16.74 $23.68 $28.99 $41.00 5415 Computer Systems Design and Related Services $18.01 $25.47 $30.79 $43.55 $18.88 $26.70 $29.25 $41.37 5416 Management, Scientific, and Technical Consulting Services $23.34 $33.01 $37.14 $52.53 Advertising and Related Services $16.09 $22.76 $25.50 $36.07 5419 Other Professional, Scientific, and Technical Services $16.42 $23.22 $27.21 $38.49 5511 Management of Companies and Enterprises $19.63 $27.77 $28.87 $40.83 5611 Office Administrative Services $17.15 $24.26 $28.03 $39.65 5612 Facilities Support Services $17.16 $24.27 $30.11 $42.59 5613 Employment Services $12.05 $17.04 $24.36 $34.46 5614 Business Support Services $15.91 $22.50 $26.03 $36.82 5615 Travel Arrangement and Reservation Services $12.47 $17.64 $24.41 $34.53 5616 Investigation and Security Services $16.83 $23.80 $22.39 $31.67 5617 Services to Buildings and Dwellings $13.71 $19.39 $20.40 $28.85 5619 Other Support Services $13.59 $19.22 $23.65 $33.45 5621 Waste Collection $15.41 $21.80 $23.78 $33.64 5622 Waste Treatment and Disposal $23.60 $33.38 $31.92 $45.15 5629 Remediation and Other Waste Management Services $15.99 $22.62 $25.04 $35.42 6111 Elementary and Secondary Schools $20.02 $28.32 $28.61 $40.47 6112 Junior Colleges $21.90 $30.98 $26.93 $38.09 VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 PO 00000 Frm 00267 Fmt 4701 Sfmt 4725 E:\FR\FM\18NOR7.SGM 18NOR7 ER18NO16.179</GPH> Scientific Research and Development Services 5418 srobinson on DSK5SPTVN1PROD with RULES6 5417 82760 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations Table V-5 Wage Rates in Industries Affected by OSHA's Final Standard for Walking-Working Surfaces (continued) Production Worker Mean Hourly Wage Base Rate 6113 6114 With Fringe Markup Base Rate With Fringe Markup $21.66 NAICS Industry Production Worker Supervisor Mean Hourly Wage $30.64 $27.10 $38.33 $17.52 $24.78 $29.40 $41.58 Colleges, Universities, and Professional Schools Business Schools and Computer and Management Training 6115 Technical and Trade Schools $19.18 $27.13 $34.63 $48.98 6116 Other Schools and Instruction $16.55 $23.41 $27.72 $39.21 6117 Educational Support Services $20.63 $29.18 $29.01 $41.03 6211 Offices of Physicians $16.81 $23.78 $23.35 $33.03 6212 Offices of Dentists $17.78 $25.15 $22.72 $32.14 6213 Offices of Other Health Practitioners $14.18 $20.06 $22.16 $31.34 6214 Outpatient Care Centers $17.17 $24.29 $31.37 $44.37 6215 Medical and Diagnostic Laboratories $16.56 $23.42 $26.36 $37.28 6216 Home Health Care Services $12.19 $17.24 $24.67 $34.89 6219 Other Ambulatory Health Care Services $16.91 $23.92 $26.48 $37.45 6221 General Medical and Surgical Hospitals $16.91 $23.92 $27.39 $38.74 6222 Psychiatric and Substance Abuse Hospitals $19.93 $28.19 $24.24 $34.29 $21.38 $30.24 $32.63 $46.15 $10.14 $14.34 $19.04 $26.93 $10.40 $14.71 $18.94 $26.79 6223 6231 6232 Specialty (except Psychiatric and Substance Abuse) Hospitals Nursing Care Facilities Residential Mental Retardation, Mental Health and Substance Abuse Facilities 6233 Community Care Facilities for the Elderly $10.39 $14.70 $20.68 $29.25 6239 Other Residential Care Facilities $12.06 $17.06 $19.59 $27.71 6241 Individual and Family Services $16.22 $22.94 $20.93 $29.60 $15.06 $21.30 $17.06 $24.13 6242 Community Food and Housing, and Emergency and Other Relief Services $10.53 $14.89 $16.96 $23.99 Child Day Care Services $10.92 $15.45 $17.06 $24.13 7111 Performing Arts Companies $15.66 $22.15 $28.17 $39.84 7112 Spectator Sports $26.38 $37.31 $28.17 $39.84 VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 PO 00000 Frm 00268 Fmt 4701 Sfmt 4725 E:\FR\FM\18NOR7.SGM 18NOR7 ER18NO16.180</GPH> Vocational Rehabilitation Services 6244 srobinson on DSK5SPTVN1PROD with RULES6 6243 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 82761 Table V-5 Wage Rates in Industries Affected by OSHA's Final Standard for Walking-Working Surfaces (continued) Production Worker Mean Hourly Wage Base Rate Promoters of Performing Arts, Sports, and Similar 7113 With Fringe Markup Base Rate With Fringe Markup $13.49 NAICS Industry Production Worker Supervisor Mean Hourly Wage $19.08 $28.17 $39.84 $20.15 $28.50 $28.17 $39.84 Events Agents and Managers for Artists, Athletes, Entertainers, 7114 and Other Public Figures 7115 Independent Artists, Writers, and Performers $15.92 $22.52 $28.17 $39.84 7121 Museums, Historical Sites, and Similar Institutions $15.17 $21.46 $27.45 $38.83 7131 Amusement Parks and Arcades $16.19 $22.90 $33.54 $47.44 7132 Gambling Industries $13.29 $18.80 $27.33 $38.66 7139 Other Amusement and Recreation Industries $14.74 $20.85 $24.29 $34.36 7211 Traveler Accommodation $11.06 $15.64 $19.39 $27.43 $11.05 $15.63 $19.39 $27.43 7212 RV (Recreational Vehicle) Parks and Recreational Camps 7213 Rooming and Boarding Houses $8.83 $12.49 $19.39 $27.43 7221 Full-Service Restaurants $12.09 $17.10 $23.27 $32.91 7222 Limited-Service Eating Places $10.73 $15.18 $21.62 $30.58 7223 Special Food Services $12.29 $17.38 $22.38 $31.65 7224 Drinking Places (Alcoholic Beverages) $14.30 $20.23 $22.21 $31.41 8111 Automotive Repair and Maintenance $18.11 $25.62 $26.87 $38.01 $16.32 $23.08 $27.26 $38.56 $17.81 $25.19 $27.46 $38.84 $14.36 $20.31 $23.38 $33.07 8112 Electronic and Precision Equipment Repair and Maintenance Commercial and Industrial Machinery and Equipment 8113 (except Automotive and Electronic) Repair and Maintenance 8114 Personal and Household Goods Repair and Maintenance $10.30 $14.57 $20.51 $29.01 Death Care Services $10.92 $15.45 $20.51 $29.01 8123 Dry-cleaning and Laundry Services $10.71 $15.15 $20.22 $28.60 8129 Other Personal Services $14.69 $20.78 $24.69 $34.92 VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 PO 00000 Frm 00269 Fmt 4701 Sfmt 4725 E:\FR\FM\18NOR7.SGM 18NOR7 ER18NO16.181</GPH> Personal Care Services 8122 srobinson on DSK5SPTVN1PROD with RULES6 8121 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 6. Other Factors of Production Profiled for This FEA Factors of production relevant to the final cost analysis included not only establishments, employers, and employees in general industry, but also the following walking and working surfaces: • Manhole Steps and Rungs • Stepbolts on Utility and Communication Poles and Towers • Commercial and Residential Buildings (Window Cleaning) and • Fixed Ladders Details on the sources, count, dimensions, and other factors are provided in the cost discussions below in Section E. srobinson on DSK5SPTVN1PROD with RULES6 D. Benefits, Net Benefits, Cost Effectiveness, and Sensitivity Analysis 1. Introduction This section reviews the populations in general industry that are at risk of occupational injury or death due to hazards associated with slips, trips, or falls to lower levels, and assesses the potential benefits associated with the changes to subparts D and I resulting from the final rule. OSHA believes that compliance with the final rule will yield substantial benefits in terms of lives saved, injuries avoided, and reduced accident-related costs. Applying updated accident data and incorporating information from the record, OSHA revised its preliminary estimate of (1) VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 the baseline level of risk and (2) prevented deaths and injuries due to the final rule. As described in Section C of this FEA (Industry Profile) above, the employees affected by the final standard work largely in construction, installation, maintenance, and repair. According to the Bureau of Labor Statistics’ 2007 Occupational Employment Statistics survey, there are approximately 112.3 million employees in industries within the scope of this final rule: 5.2 million employees engaged in construction, installation, maintenance, and repair operations in general industry that OSHA judges will need ladder training because these occupations are the most likely to use ladders in their work; 110 110 Ladder use is not limited to these occupations, and there are many persons in these occupations that do not use ladders. OSHA examined ladder fatalities recorded by BLS from 2011 through 2014 and found that 68 percent of ladder fatalities were in the occupations OSHA included as needing ladder training. However, of the 5.2 million included, many such as computer and electronics repair technicians and auto mechanics have low rates of ladder fatalities indicating that ladders are likely rarely used in these occupations. Over two million of those included as always needing ladder training are thus unlikely to need ladder training. This potential overestimate of ladder training costs is probably countered by the number of other workers who potentially use ladders but are excluded from the 5.2 million, such as 950,000 grounds maintenance workers who provide over 5 percent of ladder fatalities. The remaining 27 percent of ladder fatalities are very widely dispersed; ladder fatalities are found in every major occupational group. PO 00000 Frm 00270 Fmt 4701 Sfmt 4700 and 2.1 million employees in general industry using personal fall protection equipment. The rule also affects workers in a variety of specific kinds of work who may enter manholes using step bolts, use scaffolds or rope descent systems, etc. The inclusion of construction occupations assumes that employees in construction occupations, but employed by general industry rather than construction employers, routinely engage in what OSHA labels as maintenance (i.e., a general industry activity) rather than construction activities. This section first examines the available data on the number of baseline injuries and fatalities among affected employees; then assesses the extent to which the standard can prevent those injuries and fatalities; and finally estimates some of the economic benefits associated with the prevented injuries and fatalities. This final standard would produce benefits to the extent that compliance prevents injuries and fatalities that would otherwise occur. 2. Profile of Fall Accidents a. Fall Fatalities OSHA examined fall fatalities using two databases. As a baseline for determining the average number of fall fatalities per year, OSHA examined data from the BLS Census of Fatal Occupational Injuries (CFOI) for 2006 through 2012. To provide a more detailed breakdown of the kinds of falls E:\FR\FM\18NOR7.SGM 18NOR7 ER18NO16.182</GPH> 82762 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations included in this total, OSHA in the PEA examined CFOI data for a longer period: 1992 to 2002. For this FEA, OSHA has updated the detailed breakdown using data from 2006–2010 and applies this updated breakdown of the kinds of affected falls to the 2006–2012 fatality data.111 Distinguished from the larger category of all falls—i.e., a set of accidents that includes falls on the same level, falls to a lower level, and jumps to a lower level—the narrower category of falls to a lower level consists of the types of srobinson on DSK5SPTVN1PROD with RULES6 111 Beginning in 2011, BLS revised the system for reporting types of fatal fall events. The detailed fatality events shown below in Tables V–11 were no longer available after 2010. VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 falls directly addressed by most of the changes to OSHA’s requirements by this final standard. As shown in Table V–6, the CFOI reported 283 and 279 fatal falls to lower levels for 2006 and 2007, respectively, in industries covered by the final standard; for the five most recent years for which the data were available, fatal falls to a lower level declined to an average of 252 fatalities. For purposes of estimating the overall rate of fall fatalities for this benefits analysis, OSHA took the average of these seven years—i.e., 261 fall fatalities to a lower level per year. Over the seven-year period, the Professional, Scientific, and Technical Services industry and the Administrative and Support Services industry (NAICS codes PO 00000 Frm 00271 Fmt 4701 Sfmt 4700 82763 541 and 561, respectively) accounted for 27 percent of the fatal falls, while the Manufacturing (NAICS codes 31–33) and Transportation (NAICS code 48) industries accounted for 9.6 and 7.1 percent of the fall fatalities, respectively. Among all three-digit NAICS codes affected by the standard, BLS reported the highest number of fatal falls in NAICS code 561, 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 code 5617). E:\FR\FM\18NOR7.SGM 18NOR7 srobinson on DSK5SPTVN1PROD with RULES6 82764 VerDate Sep<11>2014 Table V-6 Fatalities from Falls to a Lower Level- General Industry, 2006-2012 2007 113 Forestry and Logging 3 4 0 0 0 0 3 114 Fishing, Hunting and Trapping 0 0 0 0 0 2 2 115 Support Activities for Agriculture and Forestry 0 0 0 0 0 3 0 211 Oil and Gas Extraction 0 0 0 0 0 0 4 213111 Oil and Gas Well Drilling 5 4 4 0 6 4 8 Frm 00272 221 Utilities 6 4 0 4 0 6 0 311 Food Manufacturing 5 4 6 5 10 4 6 312 Beverage and Tobacco Product Manufacturing 0 0 0 0 0 0 0 313 Textile Mills 0 0 0 0 0 0 0 Sfmt 4725 314 Textile Product Mills 0 0 0 0 0 0 0 315 Apparel Manufacturing 0 0 0 0 0 0 0 E:\FR\FM\18NOR7.SGM 316 Leather and Allied Product Manufacturing 0 0 0 0 0 0 0 321 !Wood Product Manufacturing 7 0 0 0 4 0 0 322 Paper Manufacturing 0 0 0 0 0 3 0 323 Printing and Related Support Activities 0 0 0 0 0 0 0 324 Petroleum and Coal Products Manufacturing 0 0 0 0 0 0 0 325 Chemical Manufacturing 3 3 0 3 0 1 0 326 Plastics and Rubber Products Manufacturing 3 0 0 0 0 1 0 327 Nonmetallic Mineral Product Manufacturing 3 0 3 0 0 3 0 331 Primary Metal Manufacturing 0 0 9 0 0 1 4 332 Fabricated Metal Product Manufacturing 10 7 4 3 6 6 0 Fmt 4701 18NOR7 ER18NO16.183</GPH> Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 2006 Jkt 241001 NAICS Description PO 00000 23:45 Nov 17, 2016 Number of Fatalities 2008 2009 2010 2011(a] 2012 NAICS srobinson on DSK5SPTVN1PROD with RULES6 VerDate Sep<11>2014 Table V-6 333 Machinery Manufacturing 0 0 0 0 0 3 0 334 Computer and Electronic Product Manufacturing 0 0 0 0 0 2 0 335 Electrical Equipment, Appliance, and Component Manufacturing 0 0 0 0 0 0 0 336 Transportation Equipment Manufacturing 7 4 6 4 4 3 6 337 Furniture and Related Product Manufacturing 0 0 0 0 0 0 0 339 Miscellaneous Manufacturing 0 4 0 0 0 4 2 423 Merchant Wholesalers, Durable Goods 4 7 5 10 0 8 7 424 Merchant Wholesalers, Nondurable Goods 12 6 5 5 8 3 15 425 Wholesale Electronic Markets and Agents and Brokers 0 0 0 0 0 0 0 441 Motor Vehicle and Parts Dealers 4 0 4 0 3 0 0 442 Furniture and Home Furnishings Stores 0 0 0 0 0 0 0 443 Electronics and Appliance Stores 0 0 0 0 0 0 0 444 Building Material and Garden Equipment and Supplies Dealers 6 4 0 4 9 0 4 445 Food and Beverage Stores 5 0 0 0 0 1 3 446 Health and Personal Care Stores 0 0 0 0 0 0 0 18NOR7 447 Gasoline Stations 0 0 0 0 0 1 0 448 Clothing and Clothing Accessories Stores 0 0 0 0 0 0 0 451 Sporting Goods, Hobby, Book, and Music Stores 0 0 0 0 0 0 0 452 General Merchandise Stores 0 0 3 4 0 0 3 453 Miscellaneous Store Retailers 0 0 0 4 0 0 3 454 Nonstore Retailers 0 0 3 0 0 1 0 PO 00000 Frm 00273 Fmt 4701 Sfmt 4725 ER18NO16.184</GPH> 82765 2007 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 2006 Jkt 241001 NAICS DESCRIPTION E:\FR\FM\18NOR7.SGM 23:45 Nov 17, 2016 Number of Fatalities 2008 2009 2010 2011 [a] 2012 NAICS srobinson on DSK5SPTVN1PROD with RULES6 82766 VerDate Sep<11>2014 Table V-6 ----------- --- ----- -- -------- ----- - - - - - - --- -- - -- - - - -- - 2006 - - - - - - - - - - --- - -- - -- J Number of Fatalities 2007 2008 2009 2010 2011[a] 2012 Air Transportation 0 0 0 0 0 1 0 482 Railroads 0 0 0 0 0 0 0 483 Water Transportation 0 0 0 0 0 0 0 484 Truck Transportation 11 18 24 12 20 9 14 PO 00000 485 Transit and Ground Passenger Transportation 0 0 0 0 0 0 0 486 Pipeline Transportation 0 0 0 0 0 0 0 487 Scenic and Sightseeing Transportation 0 0 0 0 0 0 0 488 Support Activities for Transportation 0 4 4 3 4 0 5 Fmt 4701 492 Couriers and Messengers 0 0 0 0 0 0 0 Sfmt 4725 493 Warehousing and Storage 4 5 0 3 0 6 3 511 Publishing Industries (except Internet) 0 0 0 0 0 0 0 512 Motion Picture and Sound Recording Industries 0 0 0 0 0 4 0 515 Broadcasting (except Internet) 0 0 0 0 0 3 0 516 Internet Publishing and Broadcasting 0 0 0 0 0 0 0 517 Telecommunications 6 3 0 4 0 3 0 0 0 0 0 0 0 0 Frm 00274 481 E:\FR\FM\18NOR7.SGM 18NOR7 518 Internet SeNice Providers, Web Search Portals, and Data Processing SeNices 519 Other Information SeNices 0 0 0 0 0 0 0 521 Monetary Authorities - Central Bank 0 0 0 0 0 0 0 522 Credit Intermediation and Related Activities 0 0 0 0 3 0 0 0 0 0 0 0 0 0 523 ER18NO16.185</GPH> Securities, Commodity Contracts, and Other Financial Investments and Related Activities Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations NAICS DESCRIPTION ~ Jkt 241001 23:45 Nov 17, 2016 NAICS --- srobinson on DSK5SPTVN1PROD with RULES6 VerDate Sep<11>2014 Table V-6 2006 2007 Number of Fatalities 2008 2009 2010 2011[a] 2012 3 0 0 0 0 0 0 525 Funds, Trusts, and Other Financial Vehicles 0 0 0 0 0 0 0 531 Real Estate 10 9 14 8 12 4 12 532 Rental and Leasing SeNices 0 0 0 0 0 0 0 533 Lessors of Nonfinancial Intangible Assets (except Copyrighted Works) 0 0 0 0 0 0 0 541 Professional, Scientific, and Technical SeNices 7 10 9 5 5 4 7 551 Management of Companies and Enterprises 0 0 0 0 0 0 0 561 Administrative and Support SeNices 66 80 45 68 47 84 60 562 Waste Management and Remediation SeNices 5 0 0 3 0 4 6 611 Educational SeNices 4 0 0 0 3 0 0 621 Ambulatory Health Care SeNices 0 0 0 6 3 0 0 E:\FR\FM\18NOR7.SGM 622 Hospitals 0 0 0 0 0 0 0 623 Nursing and Residential Care Facilities 4 0 0 0 4 0 3 624 Social Assistance 0 3 0 0 4 0 3 711 Performing Arts, Spectator Sports, and Related Industries 6 3 0 4 3 3 0 712 Museums, Historical Sites, and Similar Institutions 0 0 0 0 0 0 0 713 Amusement, Gambling, and Recreation Industries 0 7 3 0 4 5 5 721 Accommodation 8 5 0 0 0 5 0 722 Food SeNices and Drinking Places 4 7 4 5 5 0 0 811 Repair and Maintenance 6 4 7 6 7 7 4 812 Personal and Laundry SeNices 0 0 0 0 0 0 0 PO 00000 Frm 00275 Fmt 4701 18NOR7 ER18NO16.186</GPH> 82767 Insurance Carriers and Related Activities Jkt 241001 524 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations NAICS DESCRIPTION Sfmt 4725 23:45 Nov 17, 2016 NAICS srobinson on DSK5SPTVN1PROD with RULES6 82768 Jkt 241001 Frm 00276 Fmt 4701 Sfmt 4700 NAICS DESCRIPTION Number of Fatalities 2008 2009 2010 2011[a] 2012 2007 Religious, Grantmaking, Civic, Professional, and Similar Organizations 11 7 7 0 9 3 4 Industries not specified[b] 813 2006 45 63 65 64 60 73 74 283 279 234 237 243 278 270 Total [a] Reference year 2011 is the first year in which the 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. The data shown in this table are presented for convenience of illustration; a comparison across the two time spans mentioned above is not intended. [b]lncludes falls from ship, boat, not elsewhere classified. 18NOR7 fatalities. Quantifying the various types of fatal falls is necessary because the E:\FR\FM\18NOR7.SGM total annual number of fall fatalities, but also the number of various types of fall PO 00000 NAICS ER18NO16.187</GPH> Source: U.S. Department of Labor, OSHA, Directorate of Standards and Guidance, Office of Regulatory Analysis, based on BLS, Census of Fatal Occupational Injuries, 2006-2012. Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 23:45 Nov 17, 2016 To assess the benefits of this rule, it is necessary to determine not only the VerDate Sep<11>2014 Table V-6 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations srobinson on DSK5SPTVN1PROD with RULES6 final standard will prevent fall fatalities to different degrees for different types of falls. Table V–7 shows, for the 5-year period 2006 to 2010, the breakdown of fall fatalities by type of fall based on CFOI data. As shown, falls to a lower level (distinguished from falls on the same level) accounted for about 77 VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 percent of total fall fatalities.112 On a sector-by-sector basis, falls to a lower level as a percentage of all fatal falls ranged from 50 percent for the 112 The average for 2006–2010 shown in Table V– 7 (333 fatalities) differs from the baseline estimate applied in OSHA’s benefits analysis (345 fatalities; see Table V–11) due to the addition of two years (2011 and 2012) in OSHA’s estimate of the baseline average. See Ex. [OSHA Excel Workbook], tab Prevented Fatalities ’06–’12. PO 00000 Frm 00277 Fmt 4701 Sfmt 4700 82769 Educational Services (1.4 of 2.8, unrounded) and Health Care and Social Assistance sectors (6.4 of 12.8, unrounded) to 91 percent for the Administration and Support and Waste Management and Remediation Services sector (64 of 74.6, unrounded). As Table V–7 also shows, fatal falls from ladders averaged 56 per year over the 5-year period, while fatal falls from scaffolds averaged 13 per year. E:\FR\FM\18NOR7.SGM 18NOR7 82770 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations Table V-7 Fatal Falls by Type of Fall and Industry Sector, 2006-2010 NAICS -Industry Sector All Falls Total[a] Falls to a Lower Level From a From a Ladder Roof From a Scaffold Total Fatal Falls, 2006-2010 11 -Agriculture, forestry, fishing, and 151 126 22 10 N/A 17 14 N/A N/A N/A 31-33- Manufacturing 246 192 45 22 17 42 - Wholesale trade 97 70 13 N/A N/A 44-45 - Retail trade 157 94 38 4 N/A 174 131 4 N/A N/A 51 - Information 40 26 4 N/A N/A 52 - Finance and insurance 15 9 N/A N/A N/A 53 - Real estate and rental and leasing 66 57 16 8 N/A 45 36 5 3 N/A 353 320 59 34 10 61 -Educational services 14 7 N/A N/A N/A 62 - Health care and social assistance 64 32 N/A N/A N/A 71 -Arts, entertainment, and recreation 49 37 N/A N/A N/A 72 - Accommodation and food services 75 40 9 N/A N/A 81 - Other services 92 72 25 3 3 1,664 1,276 280 125 66 30 25 4 2 N/A 3 3 N/A N/A N/A hunting 22 - Utilities 48-79- Transportation and warehousing 54 - Professional, scientific, and technical services 56 -Administration and support and waste management and remediation services Total [b] 11 - Agriculture, forestry, fishing, and srobinson on DSK5SPTVN1PROD with RULES6 hunting 22 - Utilities VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 PO 00000 Frm 00278 Fmt 4701 Sfmt 4725 E:\FR\FM\18NOR7.SGM 18NOR7 ER18NO16.188</GPH> Average Fatal Falls per Year, 2006-2010 82771 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 31-33- Manufacturing 49 38 9 4 3 42 - Wholesale trade 19 14 3 N/A N/A 44-45 - Retail trade 31 19 8 1 N/A 35 26 1 N/A N/A 8 5 1 N/A N/A 48-79- Transportation and warehousing 51 - Information Table V-7 Fatal Falls by Type of Fall and Industry Sector, 2006-201 0 (continued) NAICS - Industry Sector All Falls Total[a] Falls to a Lower Level From a From a Roof Ladder From a Scaffold 52 - Finance and insurance 3 2 N/A N/A N/A 53 - Real estate and rental and leasing 13 11 3 2 N/A 9 7 1 1 N/A 71 64 12 7 2 61 -Educational services 3 1 N/A N/A N/A 62 - Health care and social assistance 13 6 N/A N/A N/A 71 -Arts, entertainment, and recreation 10 7 N/A N/A N/A 72 -Accommodation and food services 15 8 2 N/A N/A 81 - Other services 18 14 5 1 1 333 255 56 25 13 54- Professional, scientific, and technical services 56 -Administration and support and waste management and remediation services Total [b] Notes: Titles for industry sectors use BLS' classifications and correspond to 2-digit NAICS. Data in the table are rounded. N/A- Indicates no data reported or data that did not meet BLS publication criteria. [a] Totals for falls to a lower level include other types of falls to lower levels not shown separately. Therefore, the number of falls from a ladder, roof, and scaffold may not sum to the total number of falls to a lower level. [b] Totals include falls in industries not shown separately in the table. Therefore totals may not equal the Source: U.S. Dept. of Labor, OSHA, Directorate of Standards and Guidance, Office of Regulatory Analysis-Safety, based on BLS, Census of Fatal Occupational Injuries, 2006-2010. VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 PO 00000 Frm 00279 Fmt 4701 Sfmt 4725 E:\FR\FM\18NOR7.SGM 18NOR7 ER18NO16.189</GPH> srobinson on DSK5SPTVN1PROD with RULES6 sum of the data for the industry sectors shown in the table. 82772 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations b. Fall Injuries Table V–8, based on BLS’s Survey of Occupational Injuries and Illnesses, shows the average number of lostworkday injuries due to falls in general industry, by type of fall, for 2006–2012. The number of falls to lower level (48,379) and the number of falls on same level (137,079) were calculated as the average of injury data reported by BLS for 2006–2012. OSHA allocated the average number of falls to a lower level (48,379) among the different fall to a lower level categories based on the average distribution of falls to a lower level for 2006–2010.113 The estimate of other falls is derived as the difference srobinson on DSK5SPTVN1PROD with RULES6 113 Data on injuries associated with types of fall to lower level were reported only up until 2010. VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 between total falls and the sum of falls to lower level and falls on same level. As Table V–8 shows, unlike fall fatalities, falls to a lower level represent a relatively small share of injurious, non-fatal, falls. This table forms the basis for OSHA’s estimate of the number of lost-workday injuries prevented by the final standard. Table V–9, also based on BLS’s 2010 Survey of Occupational Injuries and Illnesses, provides additional details about the lost-workday injury rates for the two major categories of falls: Falls to a lower level and falls to the same level. Excluding industry groups for which the data are incomplete, the combined fall injury rate ranges from a low of 3.2 cases per 10,000 workers in NAICS 518 (Internet Service Providers, Web Search PO 00000 Frm 00280 Fmt 4701 Sfmt 4700 Portals, and Data Processing Services) to a high of 72.0 per 10,000 employees in NAICS 481 (Air Transportation). Of the 81 affected industries with reported fall injury data, 17 had fall injury rates in excess of 30 cases per 10,000 employees, while 28 had fall injury rates between 20 and 30 cases per 10,000 employees. Table V–10, also based on BLS’s 2010 Survey of Occupational Injuries and Illnesses, shows lost-workday fallrelated injury rates by specific type of fall, disaggregated by the major industry sectors covered by the final standard. The majority of accidents in the fall-tosame-levelcategory are falls to a floor, walkway, or other surface. E:\FR\FM\18NOR7.SGM 18NOR7 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 82773 Table V-8 Estimated Annual Number of Lost-Workday Falls in Workplaces Affected by the Final Standard Annual Average Number of Falls, 2006-2012 Type of Fall Fall to lower level 48,379 Fall down stairs or steps 14,726 Fall from floor, dock, or ground level 3,987 Fall from ladder 10,805 Fall from piled or stacked material 370 Fall from roof 429 Fall from scaffold, staging 597 Fall from building girders or other structural 134 steel Fall from nonmoving vehicle 9,188 Fall to lower level, n.e.c. 7,230 921 Fall to lower level, unspecified Fall on same level 137,079 Other falls (incl. ship, boat) 16,609 Total 202,066 Source: U.S. Department of Labor, OSHA, Directorate of Standards and Guidance, Office of Regulatory VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 PO 00000 Frm 00281 Fmt 4701 Sfmt 4725 E:\FR\FM\18NOR7.SGM 18NOR7 ER18NO16.190</GPH> srobinson on DSK5SPTVN1PROD with RULES6 Analysis, based on BLS, Survey of Occupational Injuries and Illnesses, 2006-2012. 82774 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations Table V-9 Injuries From Falls- General Industry, 2010 Lost-Workday Cases per 10,000 Workers s Industry Rank NAICS Description Falls to Falls on Lower Same Level Level All Falls 113 Forestry and Logging 114 Fishing, Hunting and Trapping 323 Petroleum and Coal Products 324 Manufacturing 325 Chemical Manufacturing Plastics and Rubber Products 326 Manufacturing Nonmetallic Mineral Product Manufacturing 331 Primary Metal Manufacturing Fabricated Metal Product 332 Manufacturing 333 Machinery Manufacturing Computer and Electronic 334 Product Manufacturing srobinson on DSK5SPTVN1PROD with RULES6 327 VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 PO 00000 Frm 00282 13 790 7.4 9.4 70 140 10.2 14.7 58 100 14.1 18.3 20.6 25.4 40 26 1,130 3,660 20.3 26.2 23 470 10.6 10 9.9 13.8 10 11.8 60 68 67 160 110 170 0 15.2 15.2 55 40 7.8 4.9 14.5 13.9 22.3 18.8 33 45 740 760 2.1 16.5 18.6 46 870 4.8 4.5 9.3 71 110 6.2 Printing and Related Support ~ctivities 31.9 3.2 0 1.9 Leather and Allied Product 20.7 5.9 316 Manufacturing 321 Wood Product Manufacturing 322 Paper Manufacturing 140 0 6.5 7.1 Beverage and Tobacco 18 81 4.5 312 Product Manufacturing 313 Textile Mills 314 Textile Product Mills 315 fA.pparel Manufacturing 28.3 0 2 21311 Oil and Gas Well Drilling 1 221 Utilities 311 Food Manufacturing 17.3 0 11.2 Support Activities for fA.griculture and Forestry 211 Oil and Gas Extraction 115 11 0 8.6 14.8 57 1,180 4.4 15.2 19.6 42 1,210 9.9 11.2 21.1 38 770 5.3 12.3 17.6 52 640 5.4 8.5 13.9 59 1,750 2.7 11.1 13.8 61 1,360 2.1 5 7.1 77 770 Fmt 4701 Sfmt 4725 E:\FR\FM\18NOR7.SGM 18NOR7 ER18NO16.191</GPH> NAIC Estimate d Number of Falls Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 82775 Table V-9 Injuries From Falls- General Industry, 2010 (continued) Lost-Workday cases per 10,000 Workers Estimated Industry Number of Falls to Falls on Rank Falls Lower Same Level Level All Falls 335 336 337 339 423 424 425 441 442 443 444 445 446 447 448 451 452 453 454 481 482 483 484 485 486 487 488 srobinson on DSK5SPTVN1PROD with RULES6 492 493 511 512 VerDate Sep<11>2014 Electrical Equipment, Appliance, and Component Manufacturing Transportation Equipment Manufacturing Furniture and Related Product Manufacturing Miscellaneous Manufacturing Merchant Wholesalers, Durable Goods Merchant Wholesalers, Nondurable Goods Wholesale Electronic Markets and Agents and Brokers Motor Vehicle and Parts Dealers Furniture and Home Furnishings Stores Electronics and Appliance Stores Building Material and Garden Equipment and Supplies Dealers Food and Beverage Stores Health and Personal Care Stores Gasoline Stations Clothing and Clothing Accessories Stores Sporting Goods, Hobby, Book, and Music Stores General Merchandise Stores Miscellaneous Store Retailers Nonstore Retailers Air Transportation Railroads Water Transportation Truck Transportation Transit and Ground Passenger Transportation Pipeline Transportation Scenic and Sightseeing Transportation Support Activities for Transportation Couriers and Messengers Warehousing and Storage Publishing Industries (except Internet) Motion Picture and Sound Recording Industries 23:45 Nov 17, 2016 Jkt 241001 PO 00000 Frm 00283 1.5 5.9 7.4 76 260 6.3 11.9 18.2 47 2,380 6.2 11.6 17.8 50 620 5.8 9.3 15.1 56 830 5.2 11.1 16.3 54 4,310 9 18.2 27.2 22 5,040 1.6 10.8 12.4 65 970 5.8 13.6 19.4 43 2,990 15.1 19.6 34.7 9 1,210 3.2 5.3 8.5 74 350 9.9 12.7 22.6 30 2,320 3.9 4.4 3.8 22.2 13.3 26.1 17.7 24 51 18.3 22.1 35 5,490 1,320 1,420 4.7 8.9 13.6 63 1 '110 4.2 8 12.2 66 470 5.1 10.3 14.3 20.8 19.6 9.3 27.6 22.6 12.4 22.8 51.2 2.2 11.5 33.1 27.7 21 29 8 1 36 39 2 6,060 22.7 37.1 72 21.8 20.8 60.7 1,240 1,340 2,630 580 160 7,960 9.9 38.8 48.7 4 1,480 9.7 0 9.7 69 40 9.3 19.2 28.5 17 50 8.7 16 24.7 27 1,270 12.3 6.7 36 21.2 48.3 27.9 5 20 1,840 1,630 4.2 8.7 12.9 64 920 2.3 19.5 21.8 37 580 Fmt 4701 Sfmt 4725 E:\FR\FM\18NOR7.SGM 18NOR7 ER18NO16.192</GPH> NAICS NAICS Description 82776 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations Table V-9 Injuries From Falls- General Industry, 2010 (continued) Lost-Workday Cases per 10,000 Workers Estimated Industry Number of Falls to Falls on Rank Falls Lower Same Level Level All Falls Broadcasting (except Internet) Internet Publishing and 516 Broadcasting 517 Telecommunications Internet Service Providers, Web 518[a] Search Portals, and Data Processing Services 519[b] Other Information Services Monetary Authorities - Central 521 Bank Credit Intermediation and Related 522 Activities Securities, Commodity Contracts, 523 and Other Financial Investments and Related Activities Insurance Carriers and Related 524 Activities Funds, Trusts, and Other 525 Financial Vehicles 531 Real Estate 532 Rental and Leasing Services Lessors of Nonfinancial Intangible 533 Assets (except Copyrighted Works) Professional, Scientific, and 541 Technical Services Management of Companies and 551 [c] Enterprises Administrative and Support 561 Services Waste Management and 562 Remediation Services 611 Educational Services 621 Ambulatory Health Care Services 622 Hospitals Nursing and Residential Care 623 Facilities 624 Social Assistance Performing Arts, Spectator 711 Sports, and Related Industries Museums, Historical Sites, and 712 Similar Institutions Amusement, Gambling, and 713 Recreation Industries 721 Accommodation 722 Food Services and Drinking srobinson on DSK5SPTVN1PROD with RULES6 515 VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 PO 00000 Frm 00284 11.3 18.3 29.6 N/R N/R N/R 10.1 18.9 29 NR NR NR 0 4.6 4.6 NR NR NR 1.5 6.5 8 75 1,900 6.6 2.4 9 73 680 2.8 6.5 9.3 72 1,800 11.3 6.9 18.2 48 140 11.8 6.5 12.3 12.7 24.1 19.2 28 44 2,880 890 0 6.4 6.4 79 20 2.3 4.8 7.1 78 4,850 4.1 9.7 13.8 62 2,420 8.3 17.4 25.7 25 10,660 15.7 14.8 30.5 14 1,100 4.5 3.7 4.8 15.3 12.8 28 19.8 16.5 32.8 41 53 12 3,360 7,710 12,030 4.8 50.5 55.3 3 13,510 11.4 26.4 37.8 7 6,830 9.2 13.2 22.4 32 510 11.7 22.4 34.1 10 290 11.7 21.7 33.4 11 2,870 9.5 2.7 29.4 19.5 38.9 22.2 6 34 5,170 12,910 Fmt 4701 Sfmt 4725 E:\FR\FM\18NOR7.SGM 15 810 N/R 16 2,610 NR 80 60 NR 18NOR7 ER18NO16.193</GPH> NAICS NAICS Description Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 82777 Table V-9 Injuries From Falls- General Industry, 2010 (continued) Lost-Workday Cases per 10,000 Workers Estimated Industry Number of Falls to Falls on Rank Falls Lower Same Level Level All Falls NAICS NAICS Description 811 812 813 Places Repair and Maintenance Personal and Laundry Services Religious, Grantmaking, Civic, Professional, and Similar Organizations 15.9 2.8 12.3 15.3 28.2 18.1 19 49 2,980 1,690 6.3 16.2 22.5 31 2,050 [a] Discontinued in 2009. NR: Not reported for 2010. [b] Scope changed in 2009. [c] Data for code SP2MCE-Management of Companies and Enterprises. Source: U.S. Department of Labor, OSHA, Directorate of Standards and Guidance, Office of Regulatory Analysis-Safety, based on BLS, Survey of Occupational Injuries and Illnesses: VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 PO 00000 Frm 00285 Fmt 4701 Sfmt 4725 E:\FR\FM\18NOR7.SGM 18NOR7 ER18NO16.194</GPH> srobinson on DSK5SPTVN1PROD with RULES6 Case and Demographic Information, 2010. srobinson on DSK5SPTVN1PROD with RULES6 82778 VerDate Sep<11>2014 Jkt 241001 PO 00000 Frm 00286 10 11 110 111 Fmt 4701 112[c] Sfmt 4725 1120 E:\FR\FM\18NOR7.SGM 1121 1122 1123 18NOR7 1124 1129 ER18NO16.195</GPH> Type of Fall Fall, unspecified Fall to lower level Fall to lower level, Unspecified Fall down stairs or Steps Fall from floor, dock, or Ground Fall from floor, dock, or ground level, unspecified Fall through existing floor opening Fall through floor Surface Fall from loading Dock Fall from ground level to lower level Fall from floor, dock, or ground level, n.e.c. Private Industry Education and Health Services Leisure and Hospitality Other Services 0.7 6.9 0.5 5 1.2 8.1 0.3 6.4 0.2 4.7 0.4 4.8 0.9 5.2 0.6 5 0.5 8.7 0.1 0.1 0.2 [b] [a] 0.1 0.2 0.1 0.1 1.9 1.1 1.7 2.1 1.6 1.7 2.8 2.6 3 0.8 0.9 0.8 0.6 1 0.6 0.6 0.5 0.4 0.1 0.2 0.3 [b] 0.1 0.1 [a] [a] [b] 0.4 0.5 0.2 0.1 0.7 0.4 0.3 0.3 0.2 0.1 [b] 0.1 0.1 0.1 [a] 0.1 [a] 1 0.1 [a] 0.1 [b] [b] [a] [a] [a] [b] 0.1 0.1 0.1 0.2 0.1 [a] 0.1 [a] [b] 0.1 [a] 0.1 0.1 [b] [b] 0.1 0.1 [b] Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 23:45 Nov 17, 2016 Event Code Table V-10 Fall Incidents by Type of Fall and Sector, 2010 (Lost-Workday Cases per 10,000 Workers) ProfesTrade, sional Transportand InformManuation,and Financial Building facturing Utilities ation Activities Services srobinson on DSK5SPTVN1PROD with RULES6 VerDate Sep<11>2014 Jkt 241001 Event Code 113 114 PO 00000 Frm 00287 115 1150 1151 Fmt 4701 1152 Sfmt 4725 1153 1154 E:\FR\FM\18NOR7.SGM 1159 116 117 18NOR7 118 119 12 120 ------ Type of Fall Private Industry Fall from ladder 1.7 Fall from piled or [a] stacked material Fall from roof 0.2 Fall from roof, [a] unspecified Fall through existing [a] roof opening Fall through roof [a] surface Fall through [a] skylight Fall from roof 0.1 edge Fall from roof, [a] n.e.c. Fall from scaffolding, 0.2 staging Fall from building girders or other [a] structural steel Fall from nonmoving 1.1 vehicle Fall to lower level, 0.8 n.e.c. Jump to lower level 0.3 Jump to lower level, [a] l.J_Q_sp~_c:jf~~9_______ ' - - - - - - - - - - - - L __ _ Manufacturing Trade, Trans porta tion, and Utilities lnfonnation Financial Activities Professional and Building Services 1.3 2 1.8 1.3 0.9 0.1 0.1 [b] [b] 0.1 [b] [b] [b] [b] [b] Education and Health Services Leisure and Hospitality Other Services 0.4 0.7 2 [b] [b] [b] [b] 0.1 [a] [b] 0.1 0.3 [b] [a] [b] [b] [b] 0.3 [b] [b] [b] [b] [b] [b] [b] [b] [a] [b] [b] [b] [b] [b] [b] [b] [b] [b] [b] [b] [b] [b] [b] 0.1 [b] [b] [b] [a] [b] [b] [b] [b] [b] [b] [b] [b] [b] [b] [b] 0.2 [a] 0.1 [b] 0.1 0.1 [b] 0.2 [a] [a] [b] [b] [b] [b] [b] [b] 0.7 2.3 1.2 0.3 0.6 0.2 0.2 2.2 0.6 0.9 0.5 0.4 0.9 1 0.8 0.5 0.2 0.4 0.5 0.1 0.2 0.1 0.2 0.7 0.1 [a] [b] L_ _ _ _ _ _ _ _ _ L _ _ _ _ _ _ _ _ _ L _ _ _ _ _ _ [b] [a] --------- --------- [b] -------- [b] ---------- Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 23:45 Nov 17, 2016 Table V-10 Fall Incidents by Type of Fall and Sector, 2010 (continued) (Lost-Workday Cases per 10,000 Workers) [b] -------- 82779 ER18NO16.196</GPH> srobinson on DSK5SPTVN1PROD with RULES6 82780 Jkt 241001 Event Code Type of Fall Private Industry Manufacturing Trade, Transporta tion, and Utilities Information Financial Activities Professional and Building Services Education and Health Services Leisure and Hospitality Other Services 121 Frm 00288 Fmt 4701 Sfmt 4700 18NOR7 a lower level resulting in a lost-workday injury ranges from 4.7 per 10,000 E:\FR\FM\18NOR7.SGM Among falls addressed by the final standard, the annual number of falls to PO 00000 ER18NO16.197</GPH> Jump from scaffold, platform, loading [a] [a] [b] [b] [b] [b] [a] [a] dock 122 Jump from structure, [b] [a] structural steel, [a] [b] [a] [b] [b] 0.2 n.e.c. 123 Jump from [b] 0.1 0.1 [a] [a] nonmoving 0.1 0.2 0.1 vehicle 129 Jump to lower level, 0.1 0.1 0.1 0.3 [b] 0.1 0.1 [a] n.e.c. 13 Fall on same level 16.1 11.5 18.1 14.6 7.5 9.7 25.1 21.2 130 Fall on same level, [a] 0.1 0.1 [b] [b] 0.1 0.1 0.1 unspecified 131 Fall to floor, 23 19.2 15.1 15.3 13.5 6.8 8.6 walkway, 14.2 or other surface 132 Fall onto or against 1.7 2.6 1.1 0.6 1.1 1.8 1.9 1.9 objects Fall on same level, 139 0.1 0.1 0.1 [b] [b] [b] 0.1 [a] n.e.c. Fall, n.e.c. 0.1 0.1 0.2 [b] [b] [a] 0.1 19 0.1 All falls 24.1 17.3 27.9 21.8 12.4 15.2 31.4 27 [a]Less than 0.1 cases per 10,000 workers. [b]Data not available. [c]Here and elsewhere in this table, data may not sum to totals due to rounding. Source: U.S. Department of Labor, OSHA, Directorate of Standards and Guidance, Office of Regulatory Analysis-Safety, based on Bureau Labor Statistics, Survey of Occupational Injuries and Illnesses: Case and Demographic Information, 2010. [b] 0.1 0.4 0.2 14.5 [b] 13.5 0.9 [b] [b] 24.5 of Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 23:45 Nov 17, 2016 BILLING CODE 4510–29–C VerDate Sep<11>2014 Table V-10 Fall Incidents by Type of Fall and Sector, 2010 (continued) (Lost-Workday Cases per 10,000 Workers) Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations employees for the Financial Activities sector to 8.1 per 10,000 employees for the Trade, Transportation, and Utility sector. Among specific types of falls to a lower level, falls from ladders represent 7.5 percent of all falls in the Manufacturing sector as reflected in an injury rate of 1.3 cases per 10,000 employees. Among other sectors, the injury rate from falls from ladders ranges from 0.4 per 10,000 employees in the Education and Health Services sector to 2.0 per 10,000 employees in the Trade, Transportation, and Utility sector and in the Other Services sector. In several sectors, falls down stairs or steps represent a major share of injuries from falls to a lower level. The provisions in the final standard requiring guardrails, handrails, and training would protect employees from these types of falls. The final rule addresses directly falls from floor holes, loading docks, roofs, and scaffolding, but these falls constitute much smaller shares of nonfatal fall accidents. 3. Fatalities and Injuries Prevented by the Final Subpart D and I Standard a. Fatalities Prevented srobinson on DSK5SPTVN1PROD with RULES6 OSHA’s final standard for subparts D and I contains safety requirements VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 designed to prevent falls involving ladders, rope descent systems, unguarded floor holes, and unprotected platform edges, among other conditions. In this FEA, OSHA classifies these types of falls as ‘‘falls to [a] lower level.’’ ‘‘Falls on the same level’’ include slips and trips from floor obstructions or wet or slippery working surfaces. The final rule has relatively few new provisions addressing falls on the same level and therefore OSHA has assigned a preventability rate of 1 percent (i.e., the percentage of fatal incidents that the Agency estimates will be prevented by the final rule) to these types of falls. Combining the data in Tables V–6 and V–7 with other fatality data from BLS, Table V–11 shows the estimated number of annual fatalities from falls in general industry. Based on 2006–2012 data, OSHA calculated an average of 345 fatal falls per year, 261 fatal falls to a lower level per year, and 75 fatal falls to the same level. OSHA allocated the average number of falls to a lower level (261) among the different fall categories based on overall fatal fall accident experience from 2006 to 2010 derived from the BLS Census of Fatal Occupational Injuries PO 00000 Frm 00289 Fmt 4701 Sfmt 4700 82781 summarized in table V–7.114 On this basis, an estimated 261 fatalities per year resulted from falls to a lower level, while the remaining 84 fatalities resulted from falls on the same level or other types of falls. In examining the costs of the proposed standard, ERG found, after reviewing inspection results, that most employers are generally in compliance with the existing subpart D standards that have been in place for over 30 years (see Table V–15 in the PEA). However, this general compliance does not necessarily mean that many of the observed fall fatalities and injuries are not the result of failure to comply with existing standards. For example, even if employers are complying with a standard 99.9 percent of the time, it is still possible that many current fall fatalities could still be the result of the 0.1 percent level of employer noncompliance. BILLING CODE 4510–29–P 114 See ERG, 2007 (Ex. OSHA–2007–0072–0046), p. 4–10, for further explanation of OSHA’s methodology for applying historic percentages to types of falls. See also Ex. [OSHA Excel Workbook], tab Prevented Fatalities ’06–’12 for details on the application of the distribution of falls from 2006– 2010 to the baseline average number of fatal falls for 2006–2012 in the final benefits analysis. E:\FR\FM\18NOR7.SGM 18NOR7 82782 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations Table V-11 Estimated Fatalities Prevented per Year by Compliance with the Final Standard 2006-2010 Type of Fall Distribution of Fall to Lower Level by Type of Fall Estimated Annual Number of Fatal Falls by Type Fall to lower level Incremental Prevention Resulting from Compliance with the Final Standard Estimated Annual Fatalities Prevented by Final Standard[a] 261 Fall down stairs or steps 7.7%[b] 20 Low 5.0% 1.0 Fall from floor, dock, or ground level 5.5% 14 High 10.0% 1.4 22.0% 57 High 20.0% 11.4 Fall from piled or stacked material 0.2% 1 High 10.0% 0.1 Fall from roof 9.8% 25 High 20.0% 5.1 5.2% 13 Very High 40.0% 5.4 1.7% 4 High 10.0% 0.4 Fall from nonmoving vehicle 22.3% 58 None 0.0% 0.0 Fall to lower level, n.e.c. 25.7% 67 Low 5.0% 3.4 Fall to lower level, unspecified 1.8% 3 Uncertain 2.5% 0.1 Fall on same level 75 Low 1.0% 0.7 Other falls (incl. ship, boat 10 Low 2.5% 0.2 Fall from ladder Fall from scaffold, staging Fall from building girders or other structural steel 345 All Falls 29.0 Note: Due to rounding, figures may not sum to totals shown. (a] Prevented fatalities calculated as the product of annual fatal falls and the incremental prevention rate, by type. [b] Distribution percentages for this category and the nine categories below it are calculated as percentage of fall to a lower level. Source: U.S. Department of Labor, OSHA, Directorate of Standards and Guidance, Office of Regulatory AnalysisSafety, based on Bureau of Labor Statistics, Census of Fatal Occupational Injuries, 2006-2012. BILLING CODE 4510–29–C VerDate Sep<11>2014 23:45 Nov 17, 2016 For the purposes of the analysis summarized in Table V–11, OSHA did Jkt 241001 PO 00000 Frm 00290 Fmt 4701 Sfmt 4700 not perform a quantitative analysis of how many fatal falls full and complete E:\FR\FM\18NOR7.SGM 18NOR7 ER18NO16.198</GPH> srobinson on DSK5SPTVN1PROD with RULES6 Totals srobinson on DSK5SPTVN1PROD with RULES6 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations compliance with the existing standard could prevent. However, a qualitative examination of the fatal falls to a lower level shows that full and complete compliance with the existing standard could prevent a majority, and perhaps a large majority, of these falls. For the PEA, and for this FEA, OSHA and its contractor used expert judgment to estimate preventability factors associated with the new rule taking account of considerations that most falls might be prevented by existing rules. The preventability factors are then the percentage of existing falls, many of which are preventable by existing rules, that would be prevented by this new final rule. On the other hand, these preventability factors assume, as do the cost estimates, full compliance with the new rule. On the benefits side, the estimated number of preventable falls is based on estimates of the number of actual current falls that are preventable by full compliance with the new standard. On the cost side, costs are estimated as the cost of going from baseline compliance to full compliance with the new rule. In order to achieve consistency between costs and benefits estimates, both must reflect the same assumptions regarding existing compliance with the new rule. OSHA also considered, and in some cases adopted, the approach of using consensus standards as a baseline. As will be discussed in detail in the cost chapter, in some cases OSHA assumed full compliance with consensus standards for purposes of both benefits and costs. In such cases, OSHA estimated neither costs nor benefits where the OSHA rule did not go beyond consensus standards. However, where consensus standards involve training or work practices required of even the smallest firms who may not even be aware of consensus standards, OSHA estimated both costs and benefits from the existing baseline. This baseline might yield overestimates of true impacts because many follow the consensus standard, but there is some reasonable chance that employers are more likely to meet an OSHA requirement than a consensus standard. A comparison of the existing and new standards shows that the new provisions largely concern training and inspections, with requirements for additional or more stringent engineering or work-practice controls being less prominent (see Section F (Costs of Compliance) below in this FEA). Nonetheless, OSHA’s final cost analysis assigns engineering controls and personal protective equipment to operations and activities that were not assigned such controls in the PEA, VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 including costs for repairs or replacements of equipment as a result of equipment failing inspections. In addition, the new standard simplifies and clarifies certain provisions, and, compared to the existing standard, better aligns them with various national consensus standards. OSHA finds that the benefits in terms of reductions in fatal falls result from increased training, inspections, and certifications (i.e., roof anchor certification) in preventing falls. In the PEA, OSHA based its analysis of accident prevention on ERG’s professional judgment and two published studies.115 The studies show that well-designed training programs are an effective means of improving workplace safety. A review of the literature by the National Institute for Occupational Safety and Health concerning the benefits of training reported that the studies showed consistently that improved and expanded training increased hazard recognition and promoted adoption of safe work practices. However, the magnitude of the effect of increased training on accident rates remains uncertain (Cohen and Colligan, 1988). Further, analysis of past OSHA experience shows that requiring training programs does not ultimately prevent the majority of accidents addressed by the training. One study of OSHA benefits estimates for 6 standards promulgated between 1990 and 1999 found that OSHA had routinely estimated greater numbers of accidents potentially prevented than had actually occurred (Seong and Mendeloff, 2004). OSHA’s accident prevention estimates ranged from 40 to 85 percent of relevant classes of accidents. The article shows that such levels of prevention did not in fact occur. The article goes on to discuss the issue of why effects were overestimated and states: Why has OSHA usually overestimated the effects? One point that OSHA staff emphasized in response to these findings was that the figures they produce should not be viewed as ‘‘predictions;’’ rather, they are estimates of what the impact would be if there were full compliance with the standard. OSHA staff is well aware that there is not full compliance with OSHA standards. However, despite its lack of realism, the assumption of full compliance seems generally reasonable given the task that the regulatory analysts face. OSHA is required by statute to demonstrate that its standards are technologically and economically feasible, and this demonstration must be made under the assumption that there is full compliance. And if costs are estimated under this assumption, then calculations of the benefits 115 The term ‘‘prevention rate’’ as used in this FEA, refers to prevention of both injuries and fatalities. PO 00000 Frm 00291 Fmt 4701 Sfmt 4700 82783 these costs would generate should arguably use it as well. However, there is a point at which the full compliance assumption does go beyond reasonableness. OSHA appears to assume that if a standard requires workers to avoid working in a hazardous manner or provides them training to change their behaviors, then all such unsafe behavior will be eliminated. This assumption creates the potential for estimating unrealistically large reductions in injuries. When training and work practices are major components of a standard, OSHA should be required to analyze their impacts in a more deliberative and realistic fashion. (Seong and Mendeloff, 2004) OSHA continues to feel it is important to present full compliance estimates, but agrees with the article that such an assumption should not imply that the training can be expected to prevent accidents as if all lessons provided in training are automatically applied by all workers. In addition to less than full compliance, there are some methodological limitations to the time trend approach used by Seong and Mendeloff. First they assume that compliance begins on the effective date of the regulation. In reality, some employers begin compliance with new regulations before they are finalized, while others do not start to comply until long after a regulation goes into effect. Many employers start applying many of the provisions of a proposed standard at the time of proposal, in part to get ahead of the curve; to the extent their change in practices is anticipatory of OSHA setting or revising standards, it should be attributed to the OSHA policy. Other employers do not respond to a regulation as soon as it is promulgated. OSHA itself frequently lets employers off with a warning rather than citation in the first year of enforcement of a standard. Finally there is a surprising amount of year-to-year variation in fatality data which create a great deal of noise that makes the effects of rules difficult to interpret. Seong and Mendeloff analyze the results of OSHA analyses from 17 to 27 years ago. OSHA personnel are acknowledged in the articles credits, and OSHA has continued to believe that OSHA should take account of this article in its benefits analysis. In order to assure that this was done, OSHA has shared this concern with its contractors where appropriate. As a result of consideration of this article, OSHA has made clear that reviewers of safety benefits analysis would apply certain principles in their review. First, expert analysts were informed on past overestimates, with the hope that experts would gain in accuracy from feedback on their past inaccuracies and biases. Secondly, E:\FR\FM\18NOR7.SGM 18NOR7 srobinson on DSK5SPTVN1PROD with RULES6 82784 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations benefits analyses should not assume that changes in training requirements can be expected to have large changes in incident prevented unless there are also changes in engineering controls or strong prohibitions on practices. Third, the higher the estimate, the greater would be the justification required beyond stating this was the best judgment of the experts. One possible effect of applying these principles is that the highest preventability factor that was applied in the PEA was lower than the lowest preventability factors in the studies the Seong and Mendeloff (2004) article reviewed. A second major issue is that the failure of OSHA regulations to achieve the anticipated benefits maybe partly due to failure of employers to comply with the regulations. As noted by Seong and Mendeloff, OSHA routinely assume full compliance with regulations for legal reasons. In some cases, if compliance is lower than 100 percent, benefits and costs will be proportionally reduced, with no effect on whether benefits exceed costs. For example, if twenty percent of establishments in an industry are out of compliance with a provision in the baseline, and these twenty percent cause ten percent of all fall fatalities, then if only ten percent come into compliance, rather than twenty percent, accidents would still be reduced by five percent. Under this scenario, a finding that benefits exceed costs under full compliance would be maintained at a lower compliance level, as long as those out of compliance are a homogeneous group. There is, however, the possibility that those out of compliance are not a homogeneous group but consist of the two subgroups, one of which has found other ways of preventing the same kind of falls, and one of which are ‘‘bad actors’’ who make no efforts of any kind to prevent falls. In this case, if compliance is only by those in the safer group, the effects of noncompliance would not simply be proportional. Such a situation might be particularly likely if there is noncompliance with an existing rule and OSHA adds provisions designed to assure greater compliance. For example, almost all trenching fatalities are the result of complete failure to comply with existing shoring requirements. An attempt to improve compliance by increasing recordkeeping, training, and certification might have little effect on the bad actors who simply fail to use shoring at all while imposing additional costs on those already following existing shoring requirements. If only those in compliance with the existing rule also follow these new provisions, then there VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 would be costs without benefits. OSHA has reviewed this rule and does not believe that this is the case for the provisions of this rule. Because of the importance of this issue, OSHA examines the effects of possible overestimation of benefits and of noncompliance on both costs and benefits in the sensitivity analysis. For the PEA, OSHA estimated the number of fatal falls potentially prevented by compliance with the proposed standard, categorized by type of fall. Since proposed subpart D focused heavily on ladder safety, OSHA judged the highest impact—15 percent—would be in preventing fatal falls from ladders. For other types of fatal falls directly addressed in the proposal (e.g., falls from floor or dock), OSHA judged a more moderate impact of 10 percent. For other types of fatal falls (e.g., falls down stairs or steps), OSHA judged a relatively low prevention impact (5 percent). For the several types of fatal falls not specifically defined by the BLS injury survey (fall to lower level, n.e.c., and fall to lower level, unspecified), OSHA judged a level of preventability (2.5 percent). (See the PEA (Ex. 1) and ERG, 2007 (Ex. 46), pp. 4–10 to 4–14.) For falls from roofs, OSHA judged in the PEA that compliance with the provisions in proposed subpart D addressing safety systems, work practices, and training associated with the fall hazards encountered on roof surfaces—including the requirements referenced in national consensus standards such as 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—would result in a prevention rate of 15 percent. Therefore, in the preliminary analysis of benefits, OSHA applied a prevention rate of 15 percent to roof accidents. For this final analysis of benefits, OSHA increased the prevention rate for roofs to 20 percent because the final standard: (1) Significantly strengthened fall protection for chimney sweeps (see Section F Costs of Compliance below in this FEA for a discussion of the control measures that OSHA used for the chimney-cleaning services industry), and (2) in greater detail, through association with an analogous standard for construction, extended fall protection in the form of designated areas and work rules intended to limit the movement of workers to within 15 feet of the roof edge when fall protection is not installed and available for use (see Section F below for a discussion of fall protection on rooftops across industries PO 00000 Frm 00292 Fmt 4701 Sfmt 4700 covered by § 1910.28, Duty to have fall protection). OSHA’s final analysis of compliance costs for rooftop inspections addressed by final § 1910.28(b)(13), Work on low-slope roofs, includes costs for the installation of fall-arrest anchorages for the small percentage of inspections that identify hazardous conditions at or near roof edges (see discussion in the section ‘‘Cost Estimates’’, below). These additional rooftop inspections and fall-system enhancements are expected to contribute to the benefits of reduced fatalities and injuries. Two chimney-sweep accidents reported in OSHA’s IMIS database (OSHA, 2012a) illustrate the benefits achievable under the final standard. In the first accident (Inspection No. 311734842), an employee of a Maryland chimney-sweep business died from impact injuries to the head and neck after apparently falling 15 feet. Although no one witnessed the accident, it appears, based on evidence at the scene and an interview with the homeowner, that the employee was using a 12-foot section of a ladder to gain access to three roof levels: the primary roof, the porch roof, and the roof peak. Inspectors found no roof perimeter guardrail or anchorage-based personal fall protection equipment at the site. OSHA believes the final standard at § 1910.28 would prevent such a fall because the employer would have to provide fall protection for an employee exposed to a height of four feet or greater. In a second chimney-cleaning accident identified by OSHA (Inspection No. 307309054), employees of an air-duct and chimney-service company were installing a protective cap on a chimney. One of the employees was using a 2-foot stepladder leaning against the chimney chase to access the top of the chimney when he fell 24 feet. OSHA’s investigation of the fatality showed that the employee was not using personal fall protection equipment, a safety measure required by the final standard. For this final analysis of benefits, OSHA increased the prevention rate for ladders to 20 percent (from 15 percent in the PEA) because the requirement in the final rule for safety systems on all fixed ladders, including outdoor advertising, will substantially reduce the number of ladder-related accidents. In addition, OSHA believes that the increased level of worker training on ladder safety systems required by the final rule, and the heightened recognition of the fall hazards associated with ladder safety systems resulting from this training, will yield a E:\FR\FM\18NOR7.SGM 18NOR7 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 these systems, OSHA believes that it is reasonable to expect that the final standard will prevent at least 40 percent of deaths and injuries associated with scaffolds. In addition, Table V–11 shows that falls from scaffolds or staging is a leading category of falls in general industry. According to the Bureau of Labor Statistics, such falls caused an average of 18 deaths and 1,474 lostworkday injuries yearly over a recent eleven-year period (1992–2002). For the PEA, OSHA reviewed a subset of scaffold accidents recorded in the Agency’s Integrated Management Information System (IMIS) database to expand ERG’s analysis of the extent to which the proposed standard would prevent accidents involving commercial window cleaning to gain additional information on prevention of fatal falls (OSHA, 2009). Accordingly, OSHA reviewed 36 incidents (some involving multiple casualties) that occurred during the period January 1995 to October 2001 in which a fall from an elevated scaffold or a similar surface during commercial window cleaning operations either killed or injured PO 00000 Frm 00293 Fmt 4701 Sfmt 4725 workers in general industry. OSHA then applied expert judgment to make determinations about which of these incidents would be preventable by full compliance with each of the following standards: 1. The existing standard for walkingworking surfaces; 2. A 1991 memorandum to regional administrators that describes the safe use of descent-control devices (i.e., rope-descent systems or RDSs) by employees performing building exterior cleaning, inspection, and maintenance (OSHA, 1991a), which were incorporated into ANSI/IWCA I–14.1, Window Cleaning Safety Standard; or 3. The final standard. Table V–12 below summarizes OSHA’s analysis of the IMIS window cleaning incidents. Table V–12 shows that the existing standard did not account for incidents in three of the four cause-of-incident categories. The existing standard could not account for these incidents because it has no provisions that directly regulate RDSs. Accordingly, OSHA believes that full compliance with the existing standard would not prevent these incidents. E:\FR\FM\18NOR7.SGM 18NOR7 ER18NO16.199</GPH> srobinson on DSK5SPTVN1PROD with RULES6 higher percentage of accident avoidance than preliminarily estimated by the Agency in the PEA. OSHA also increased the prevention rate for falls to lower level, not elsewhere classified, to 5 percent (from 2.5 percent in the PEA) based on the requirements for step bolts in the final rule. OSHA revised its preliminary estimate of the prevention rate based on its determination that employers will increase use of ladder safety systems combined with personal fall protection on structures covered by the final rule that currently use only step bolts or ladders without ladder safety systems, such as pole-mounted lights at sports and performance arenas and other tall structures. For falls from scaffolds or staging, OSHA judged a prevention rate of 40 percent in the PEA. No commenters raised objections to this estimate, so OSHA retained it for this FEA. OSHA believes that this estimate is reasonable because, according to OSHA and BLS accident data, approximately 40 percent of lost-workday scaffold accidents involve rope-descent systems. Therefore, in view of the final standard’s comprehensive coverage of 82785 srobinson on DSK5SPTVN1PROD with RULES6 82786 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations The 21 RDS incidents in the category titled ‘‘Malfunction/Mishandling of Rope Descent System or Lifelines’’ typically involved a malfunction in, or unsafe use of, an RDS rope descent systems (including lifelines). OSHA determined that safety conditions specified in its 1991 memorandum could prevent 19 of these incidents. The final rule could prevent these 19 RDS incidents, as well as the remaining two RDS incidents. As noted earlier, OSHA’s existing subpart D would not prevent any of the RDS incidents in this category. One of the primary causes of accidents in commercial window cleaning is the failure of the rooftop anchorage to support the suspended scaffold, the second cause-of-incident category in Table V–12. The final standard requires that employers use proper rigging, including sound anchorages and tiebacks, with RDS. OSHA identified eight incidents in the IMIS database for which anchorage failure contributed to the incident. In OSHA’s judgment, all eight anchoragerelated incidents involved factors addressed by the final standard and, therefore, would be preventable under that standard. All but one of these eight incidents involved factors addressed by the 1991 OSHA memo. The third cause-of-incident category in Table V–12 addresses accidents that are less likely to occur when employers train workers adequately—for example, in the proper use of harnesses and lifelines. OSHA identified 14 incidents in the IMIS database in which death or injury to a worker would be preventable had the worker applied the training required by the final standard. Of these 14 cases, 12 involved factors addressed by the 1991 OSHA memo. Other factors that led to a fall from elevation, such as equipment failure involving suspension scaffolds and powered platforms, contributed to the death or injury of workers during window cleaning operations. The fourth cause-of-incident category in Table V– 12 addresses these incidents. OSHA determined that provisions in the existing standard would prevent four of these incidents, while the provisions of the final standard would prevent six of them. The 1991 OSHA memo had no provisions that would prevent these incidents. OSHA believes that this analysis illustrates some of the complexities in assigning benefits to the final standard. Chief among these complexities is the assumption that full compliance with the final standard will prevent fatalities not preventable by the existing standard due to the addition in the final standard VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 of major requirements addressing window cleaning operations. Second, there is the question of the proper baseline for such an analysis. Prior to publication of the final standard, while OSHA did not have a rule addressing RDSs or anchorages for these systems and suspended scaffolds, OSHA could use national consensus standards and enforcement policies, in concert with the general duty clause, to prompt employers to prevent falls to lower levels. Therefore, reductions in fall-related incidents likely occurred as a result of this enforcement practice, even if OSHA applied this practice irregularly. However, OSHA has not treated the 1991 memo as the baseline for either benefits or costs, but has instead estimated costs for most activities required by the 1991 memo and benefits from the current levels of compliance. Third, there is the issue, already discussed, of how to treat the benefits of training requirements. OSHA normally assumes full compliance with a rule for the purposes of both benefit and cost analysis. For some provisions in a rule, the Agency can readily determine whether full compliance with the rule would prevent an incident. However, for training provisions, it is difficult to determine whether full compliance with the training requirements would prevent the incidents the training is addressing (Seong and Mendeloff, 2004). OSHA’s resulting estimate of the effects of the training requirements is specified by Table V–11. According to OSHA’s determinations summarized in Table V– 12, adequate training, if the instructions in training were followed, could have prevented up to 14 of the 36 window cleaning fall-related incidents reported in IMIS. Based on the PEA and the rulemaking record, and applying the fatalityprevention rate for scaffolds explained above, OSHA concludes that the final standards will prevent 29 fall fatalities a year, i.e., the final standards would prevent approximately 8 percent of the fatal falls in general industry. b. Injuries Prevented For the purposes of estimating the number of lost-workday injuries prevented by the final standards, OSHA applied the same prevention factors to lost-workday injuries that it assigned to the defined categories of fatal falls. Table V–13 shows, by type of fall, the distribution of lost-workday injuries for general industry; these injury categories duplicate the categories in Table V–8. The BLS data show that, for non-fatal falls to a lower level, 30.4 percent of injuries are due to falls down stairs or PO 00000 Frm 00294 Fmt 4701 Sfmt 4700 steps, while 22.3 percent are the result of falls from ladders. Averaging total lost-workday fall injuries for 2006–2012, OSHA estimates that 202,066 lostworkday fall injuries occur each year for work operations directly affected by the final revisions to subparts D and I (see Ex. [OSHA Excel Workbook], tabs Injury Fall % 2006–2012 and Prevented Injuries ’06–’12). For this FEA, OSHA notes a significant addition to its preliminary analysis of benefits. In the PEA, OSHA primarily focused on the benefits of preventing falls to a lower level because of the relatively greater certainty of accident avoidance associated with the required control strategies that OSHA anticipates employers will apply to ladders, scaffolds, rope descent systems, roofs, and other elevated surfaces after the Agency issues the final rule. However, based on testimony in the record (Exs. 329 (1/20/2011, pp. 42, 60– 61); 329 (1/21/2011, pp. 200–203); 330), OSHA expanded its analysis to include the benefits of preventing slips, trips, and falls on the same level. As shown in Table V–8, 2006–2012 BLS data indicate that falls on the same level resulted in 137,079 lost-workday injuries in work activities in general industry affected by the final rule. OSHA estimates that the provisions of final subpart D addressing general conditions (§ 1910.22) will prevent 1 percent of these accidents, or 1,371 injuries. The 1% prevention rate assumes that the time employers will expend to inspect (two hours per year) and correct hazards (20 minutes for the 10 percent of establishments with unsafe conditions) in compliance with 1910.22(d) will lead to this reduction. This estimate is uncertain, and we examined other prevention rates in our sensitivity analysis.116 Using the prevention estimates described above for falls on the same level and the prevention estimates applied to fatal incidents involving falls to a lower level, OSHA estimates that compliance with final subparts D and I will prevent 5,842 lost-workday fall injuries annually. OSHA recognizes that this prevented-injuries estimate is a 58 percent increase over the preliminary estimate (i.e., 3,706 prevented injuries); however, OSHA believes that this estimate accurately captures the full range of accidents that the final rule addresses. BILLING CODE 4510–29–P 116 Other sections of the standard may indirectly prevent falls on the same level. E:\FR\FM\18NOR7.SGM 18NOR7 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 82787 Table V-13 Estimated Lost-Workday Injuries per Year Prevented by Compliance with F'1naIS u>parts D an dl b Type of Fall Distribution of Falls Resulting in Lost Workdays by Type Estimated Annual Number of Nonfatal Falls by Type 24.0% Incremental Prevention Resulting from Compliance with the Final Standards Estimated Annual Injuries Prevented by the Final Standards[a] 48,379 Fall to lower level Fall down stairs or steps Fall from floor, dock, or ground level 30.4%[b] 14,726 Fall from ladder 736 High 10.0% 399 10,805 22.3% 5.0% 3,987 8.2% Low High 20.0% 2,161 Fall from piled or stacked material 0.8% 370 High 10.0% 37 Fall from roof 0.9% 429 High 20.0% 86 Fall from scaffold, staging 1.2% 597 Very High 40.0% 239 Fall from building girders or other structural steel 0.3% 134 High 10.0% 13 19.0% 9,188 None 0.0% 0 14.9% 7,230 Low 5.0% 362 1.9% 921 Uncertain 2.5% 23 67.8% 137,079 Very Low 1.0% 1,371 8.2% 16,609 Uncertain 2.5% 415 100.0% 202,066 Fall from nonmoving vehicle Fall to lower level, n.e.c. Fall to lower level, unspecified Fall on same Level Other falls (incl. ship, boat) Totals 5,842 Note: Due to rounding, figures may not sum to totals shown. [a]Prevented injuries calculated as the product of annual nonfatal falls and the incremental prevention rate, by type. [b] Distribution percentages for this category and the nine categories below it are calculated as percentage of fall to a lower level. Distribution percentage for fall on same level and other falls are calculated as percentage of total falls in general industry. Safety, based on Bureau of Labor Statistics, Survey of Occupational Injuries and Illnesses: Case and Demographic Information, 2006-12. </PHOTO> VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 PO 00000 Frm 00295 Fmt 4701 Sfmt 4725 E:\FR\FM\18NOR7.SGM 18NOR7 ER18NO16.200</GPH> srobinson on DSK5SPTVN1PROD with RULES6 Source: U.S. Department of Labor, OSHA, Directorate of Standards and Guidance, Office of Regulatory Analysis- 82788 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 4. Nonquantifiable Benefits As noted earlier in this FEA, OSHA did not estimate the improvements in the efficiency of compliance associated with clarifying the existing rule and making it consistent with current national consensus standards. In addition to the benefits associated with those factors, OSHA anticipates that improvements to its walking-working surfaces standard in general industry will yield further benefits. In the following exhibit and in the discussion that follows, OSHA highlights the key substantive differences introduced by the final rule. 4. Nonquantifiable Benefits Exhibit V-2: Revised Subparts D&l and Existing Standards for Fall Protection in General Industry - Key Substantive Differences Existing Standard (Subpart D, unless Revised Standard Comment otherwise indicated) §1910.22 General requirements, paragraph (a)(3) "Housekeeping." §1910.22 General requirements, paragraph (a)(3) Expanded list will requires that every floor, Surface conditions, requires that the employer strengthen working place, and ensure that walking-working surfaces are maintained employer duty to passageway shall be kept free of hazards such as sharp or protruding objects, maintain hazard- free from protruding nails, loose boards, corrosion, leaks, spills, snow, and ice. free surfaces. splinters, holes, or loose VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 PO 00000 Frm 00296 Fmt 4701 Sfmt 4725 E:\FR\FM\18NOR7.SGM 18NOR7 ER18NO16.201</GPH> srobinson on DSK5SPTVN1PROD with RULES6 boards. Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 82789 Exhibit V-2: Revised Subparts D&l and Existing Standards for Fall Protection in General IndustryKey Substantive Differences (continued) Existing Standard {Subpart D, unless otherwise indicated) Revised Standard Comment § 1910.24 Step bolts and manhole steps, paragraph (a)(1) Step bolts, requires that the employer ensure that each step bolt installed on or after January 17, 2017 in an environment where corrosion may occur is constructed of, or coated with material that protects against corrosion. § 1910.24 Step bolts and manhole steps, paragraph (b )(2) Consensus standards only. Manhole steps, requires the employer must ensure that each manhole step installed on or after January 17, 2017 • has a corrugated, knurled, dimpled, or other surface New section addresses hazards of unsafe step bolts and manhole steps. that minimizes the possibility of an employee slipping; and • is constructed of, or coated with, material that protects against corrosion if the manhole step is located in an environment where corrosion may occur. §1910.27 Scaffolds and rope descent systems, paragraph (b )(1) Rope descent systems, requires that before any rope descent system is used, the building owner must inform 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 (268 kg) in any specifies direction, for each employee attached. The information requirement for must be based on an annual inspection by a qualified building anchorage person and certification of each anchorage by a qualified certification and person, as necessary, and at least every 10 years. inspection for use Paragraph (b)(ii) in that section requires that the employer of suspended must ensure that no employee uses any anchorage before Consensus standards only. New provision scaffolds. the employer has obtained written information from the building owner that each anchorage meets the requirements of paragraph (b)(1)(i) of this section. The employer must VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 PO 00000 Frm 00297 Fmt 4701 Sfmt 4725 E:\FR\FM\18NOR7.SGM 18NOR7 ER18NO16.202</GPH> srobinson on DSK5SPTVN1PROD with RULES6 keep the information for the duration of the job. 82790 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations Exhibit V-2: Revised Subparts D&l and Existing Standards for Fall Protection in General IndustryKey Substantive Differences (continued) Existing Standard (Subpart D, unless otherwise indicated) Revised Standard Comment §1910.27 Scaffolds and rope descent systems, paragraph (b)(2) Rope descent systems, requires that the employer ensure: • that no rope descent system is used for heights greater than 300 feet (91 m) above grade unless the employer demonstrates that it is not feasible to access such heights by any other means or that those means pose Generally consensus standards only, except: a greater hazard than using a rope descent system; • that the rope descent system is used in accordance with instructions, warnings, and design limitations set by the manufacturer or under the direction of a §191 0.28 Safety requirements for scaffolding, paragraph (a)(21) "General requirements for all scaffolds", requires that only treated or protected fiber rope shall qualified person; • codifies consensus standard and best that the rope descent system is inspected at the start of practices . each workshift that it is to be used. The employer must be used for or near any work ensure damaged or defective equipment is removed involving the use of corrosive substances or chemicals. that each employee who uses the rope descent system is trained in accordance with §1910.30; • New RDS section from service immediately and replaced; • that the rope descent system has proper rigging, including anchorages and tiebacks, with particular emphasis on providing tiebacks when counterweights, cornice hooks, or similar non-permanent anchorages are used; and • that each employee uses a separate, independent personal fall arrest system that meets the requirements VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 PO 00000 Frm 00298 Fmt 4701 Sfmt 4725 E:\FR\FM\18NOR7.SGM 18NOR7 ER18NO16.203</GPH> srobinson on DSK5SPTVN1PROD with RULES6 of 29 CFR part 1910, subpart I. Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 82791 Exhibit V-2: Revised Subparts D&l and Existing Standards for Fall Protection in General IndustryKey Substantive Differences (continued) Existing Standard (Subpart D, unless otherwise indicated) Revised Standard Comment §1910.27 Scaffolds and rope descent systems, paragraph (b)(2) Rope descent systems, requires that the employer must ensure: • that all components of each rope descent system, except seat boards, are capable of sustaining a minimum rated load of 5,000 pounds (22.2 kN). Seat boards must be capable of supporting a live load of 300 pounds (136 kg); Generally consensus standards • only, except: that prompt rescue of each employee is provided in the event of a fall; • that the ropes of each rope descent system are §1910.28 Safety requirements for effectively padded or otherwise protected, where they scaffolding, paragraph (a)(21) can contact edges of the building, anchorage, "General requirements for all obstructions, or other surfaces, to prevent them from scaffolds" requires that only treated being cut or weakened; or protected fiber rope shall be • that stabilization is provided at the specific work used for or near any work involving codifies consensus standard and best practices. location when descents are greater than 130 feet (39.6 the use of corrosive substances or New RDS section m); • chemicals. that no employee uses a rope descent system when hazardous weather conditions, such as storms or gusty or excessive wind, are present; • that equipment, such as tools, squeegees, or buckets, is secured by a tool lanyard or similar method to prevent it from falling; and • that the ropes of each rope descent system are protected from exposure to open flames, hot work, VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 PO 00000 Frm 00299 Fmt 4701 Sfmt 4725 E:\FR\FM\18NOR7.SGM 18NOR7 ER18NO16.204</GPH> srobinson on DSK5SPTVN1PROD with RULES6 corrosive chemicals, and other destructive conditions. 82792 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations Exhibit V-2: Revised Subparts D&l and Existing Standards for Fall Protection in General IndustryKey Substantive Differences (continued) Existing Standard (Subpart D, unless otherwise indicated) Revised Standard §1910.27 Fixed ladders , paragraph §1910.28 Duty to have fall protection. , paragraph (b)(9) (d)(2) "Special requirements" Fixed ladders, requires that for fixed ladders that extend Comment requires that when ladders are more than 24 feet (7.3 m) above a lower level , the employer used to ascend to heights must ensure: exceeding 20 feet (except on that each fixed ladder installed before November 19, chimneys), landing platforms must 2018 is equipped with a personal fall arrest system, In outdoor be provided for each 30 feet of ladder safety system, cage, or well; advertising and height or fraction thereof, except that each fixed ladder installed on or after November other industries that, where no cage, well, or ladder 19, 2018, is equipped with a personal fall arrest system where fixed ladders safety device is provided, landing or a ladder safety system; are climbed platforms must be provided for that when a fixed ladder, cage, or well, or any portion frequently, each 20 feet of height or fraction of a section thereof, is replaced , a personal fall arrest additional thereof. In addition, each ladder system or ladder safety system is installed in at least protection provided section shall be offset from that section of the fixed ladder, cage, or well where the at heights above adjacent sections. Where replacement is located; and 24ft. installation conditions (even for a • That on and after November 18, 2036, all fixed ladders short, unbroken length) require that are equipped with a personal fall arrest system or a adjacent sections be offset, landing ladder safety system. platforms must be provided at each VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 PO 00000 Frm 00300 Fmt 4701 Sfmt 4725 E:\FR\FM\18NOR7.SGM 18NOR7 ER18NO16.205</GPH> srobinson on DSK5SPTVN1PROD with RULES6 offset. Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 82793 Exhibit V-2: Revised Subparts D&l and Existing Standards for Fall Protection in General IndustryKey Substantive Differences (continued) Existing Standard (Subpart D, unless otherwise indicated) Revised Standard Comment §1910.28 Duty to have fall protection , paragraph (b)(13) Work on low-slope roofs, requires : • that when work is performed less than 6 feet (1.6 m) from the roof edge, the employer must ensure each employee is protected from falling by a guardrail system, safety net system, travel restraint system, or personal fall arrest system; • that when work is performed at least 6 feet (1 .6 m) but less than 15 feet (4.6 m) from the roof edge, the employer must ensure each employee is protected from falling by using a guardrail system, safety net system, travel restraint system, or personal fall arrest system, The employer may use a designated area New provision when performing work that is both infrequent and addresses risks on temporary; and • low-slope roofs . that when work is performed 15 feet (4.6 m) or more from the roof edge, the employer must: (1) protects each employee from falling by a guardrail system, safety net system, travel restraint system, or personal fall arrest system, or a designated area. The employer is not required to provide any fall protection provided the work is both infrequent and temporary; and (2) implements and enforces a work rule prohibiting employees from going within 15 feet (4.6 m) of the roof edge without using fall protection in accordance with paragraphs (b)(13)(i) and (ii) of this section. The employer is not required to provide any fall protection VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 PO 00000 Frm 00301 Fmt 4701 Sfmt 4725 E:\FR\FM\18NOR7.SGM 18NOR7 ER18NO16.206</GPH> srobinson on DSK5SPTVN1PROD with RULES6 provided the work is both infrequent and temporary. 82794 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations Exhibit V-2: Revised Subparts D&l and Existing Standards for Fall Protection in General IndustryKey Substantive Differences (continued) Existing Standard (Subpart D, unless otherwise indicated) Revised Standard Comment §1910.30 Training requirements, paragraph (a)(1) Fall hazards requires that before any employee is exposed to a fall hazard, the employer must provide training for each employee who uses personal fall protection systems or who is required to be trained as specified elsewhere in this subpart. Moreover, employers must ensure employees are trained in the requirements of this paragraph on or before May 17,2017. Paragraph (a)(2) of that section requires the employer must ensure that each employee is trained by a qualified person. Paragraph (a)(3) of that section requires the employer to train each employee in at least the following topics: (i) The nature of the fall hazards in the work area and how to recognize them; (ii) The procedures to be followed to minimize those hazards; (iii) The correct procedures for installing, inspecting, New requirements operating, maintaining, and disassembling the personal fall for training on fall protection systems that the employee uses; and and equipment (iv) The correct use of personal fall protection systems and hazards ensure equipment specified in paragraph (a)(1) of this section, communication on, including, but not limited to, proper hook-up, anchoring, and and remediation of tie-off techniques, and methods of equipment inspection and hazards. storage, as specified by the manufacturer. §1910.30 Training requirements, paragraphs (b)(1), requires that the employer train each employee on or before May 17, 2017 in the proper care, inspection, storage, and use of equipment covered by this subpart before an employee uses the equipment. Paragraph (b)(2) of that section requires the employer train each employee who uses a deckboard to properly place and secure it to prevent unintentional movement. Paragraph (b)(3) of that section requires the employer train each employee who uses a rope descent system in proper rigging and use of the equipment in accordance with §1910.27. Paragraph (b)(4) of that section requires the employer train each employee who uses a designated area in the proper VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 PO 00000 Frm 00302 Fmt 4701 Sfmt 4725 E:\FR\FM\18NOR7.SGM 18NOR7 ER18NO16.207</GPH> srobinson on DSK5SPTVN1PROD with RULES6 set-up and use of the area. Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 82795 Exhibit V-2: Revised Subparts D&l and Existing Standards for Fall Protection in General IndustryKey Substantive Differences (continued) Existing Standard (Subpart D, unless otherwise indicated) Revised Standard Comment §1910.132 General Requirements, paragraph (d)(1) Hazard assessment and equipment selection, requires that the employer assess the workplace to determine if hazards are present, or are likely to be present, which necessitate the use of personal protective equipment (PPE). If such hazards are present, or likely to be present, the employer must: • select, and have each affected employee use, the types of PPE that will protect the affected employee from the hazards identified in the hazard assessment; • communicate selection decisions to each affected employee; and, • select PPE that properly fits each affected employee. Hazard Assessment requirements in Subpart I are now applied to fall protection PPE. Note: Non-mandatory Appendix B contains an example of procedures that would comply with the requirement for a hazard assessment. Paragraph (d)(2) of that section requires that the employer shall verify that the required workplace hazard assessment has been performed through a written certification that identifies the workplace evaluated; the person certifying that the evaluation has been performed; and the date(s) of the hazard assessment. The written certification must be Source: U.S. Department of Labor, OSHA Directorate of Standards and Guidance, Off1ce of Regulatory AnalysisSafety. BILLING CODE 4510–29–C VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 PO 00000 Frm 00303 Fmt 4701 Sfmt 4700 E:\FR\FM\18NOR7.SGM 18NOR7 ER18NO16.208</GPH> srobinson on DSK5SPTVN1PROD with RULES6 identified as the document certifying the hazard assessment. srobinson on DSK5SPTVN1PROD with RULES6 82796 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations Earlier in this preamble, in the summary and explanation of final § 1910.28 Duty to have fall protection and falling-object protection, OSHA described the means by which the final standard provides greater flexibility in controls than is found in the current walking-working standard for preventing slip, trip, and fall accidents. OSHA believes that expanding control flexibility will produce nonquantifiable benefits, and in the following discussion, the Agency reiterates the factors that will help generate the nonquantified benefits supplementing the quantified benefits shown in Impacts Exhibit V–1 and in Tables V–11 and V–13 in this FEA. This rule, like the construction fall protection standard, allows general industry employers, similar to construction employers, to protect workers from falls hazards by choosing from a range of acceptable fall protection options. The existing general industry standard, however, mandated the use of guardrail systems as the primary fall protection method (e.g., see existing § 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 allowing 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, OSHA believes giving general industry employers flexibility in selecting fall and falling-object protection systems allows them to select the system or method that they determine will work best for the particular work operation and location. Such flexibility allows employers to consider factors such as exposure time, availability of appropriate attachment points, feasibility, cost effectiveness, and cost constraints when selecting the appropriate fall protection system for the work activity. Second, providing control flexibility allows general industry employers to VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 take advantage of advances in fall protection technology developed since OSHA adopted the existing rule. The existing rule, by contrast, limited choices in fall protection technology. Third, making the final rule consistent with the construction standard ensures that employers who have workers engaged in both general industry and construction activities are able to use the same fall and fallingobject protection while performing both types of activities. It eliminates the need to purchase different fall protection systems when their workers perform general industry operations. Thus, making the general industry and construction rules consistent ensures that final rule is a cost-effective approach for reducing significant risk of harm. 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 believes the comprehensive approach to fall protection (that is, duty to provide fall protection, mandatory criteria for controls, regular inspections, and training) that the final rule and the construction fall protection standard incorporate will provide equivalent or greater protection than the existing rule. In addition, the greater flexibility the final rule affords employers will allow them to select the fall protection option that works best in the specific situation and is the most cost-effective protective measure capable of reducing or eliminating significant risk of harm. 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 other passive controls to protect workers from falls. For example, employers may not be able to install permanent systems such as guardrails when they do not own the building or structure on which their employees are working. OSHA believes the final rule addresses the concerns of these commenters without limiting employer flexibility or compromising worker safety. As mentioned, the final rule limits fall protection choices in some situations where the Agency determined that passive/permanent systems provide the requisite level of protection. For example, in final paragraph (b)(5), OSHA specifically requires the use of guardrails on runways and similar walkways. Likewise, guardrail systems or travel restraint systems are the only systems that employers may use to protect workers on slaughter-house platforms (see final paragraph (b)(14)). In these cases, OSHA limited PO 00000 Frm 00304 Fmt 4701 Sfmt 4700 employers’ choices to those systems that are possible to use on those walkingworking surfaces and that provide an adequate and appropriate level of safety. The final rule also establishes criteria and work practices addressing personal fall protection systems (§ 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, travel restraint lines), snaphooks, and anchorages. The work practices include requiring employers to ensure inspection of personal fall protection systems before the initial use during each work shift, and to ensure that a competent or qualified person inspects each knot in a lanyard or vertical lifeline. OSHA believes that 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. c. Public Comment on Benefits OSHA requested comment on the Agency’s preliminary analysis of the scaffold accidents described above, and on the various approaches used to determine the estimated benefits achievable from compliance with the other provisions of the proposed standard. The following discussion presents OSHA’s summary of the public comments received on OSHA’s preliminary benefits analysis. The National Chimney Sweep Guild (NCSG) questioned the benefits of a fall protection system that involved the use of an anchorage, travel restraint lines, and harnesses for repair and maintenance activities on a residential roof: Given that the average time on the roof for a typical chimney service is between five and twenty minutes, we believe it is clear that the installation of a single roof anchor (taking 45 to 90 minutes) would expose the chimney sweep to greater hazards for a longer period of time. Installation of the anchor requires extra equipment to be taken to the roof, and increases the number of ground to roof trips. We believe one of the highest hazards is the ladder to roof transition, both getting onto and off of the roof. The work required to install the roof anchor(s) would significantly increase the number of ladder to roof to ladder transition cycles. Furthermore, the anchor would not provide any fall protection during the period before the sweep could attach to it or during the period after the sweep detached from it. In conclusion, the installation of a roof anchor point roughly equals the cost of an E:\FR\FM\18NOR7.SGM 18NOR7 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations srobinson on DSK5SPTVN1PROD with RULES6 average chimney cleaning or inspection service, requires significantly more ladder to roof to ladder transitions, keeps the technician working on the roof for a substantially longer period of time than would be required to perform the average chimney cleaning or inspection service, and would not provide fall protection for the ladder to roof and roof to ladder transitions. Accordingly, we believe it is clear that it is economically infeasible (in the rare circumstance where it would be acceptable to a homeowner) and would expose the technician to a greater hazard to require the installation of the anchor(s) that would be necessary to use a personal fall arrest system, a travel restraint system or a safety net while performing the great majority of the tasks performed by sweeps (Ex. 150, pp. 30–31). In this quotation, NCSG argued that, in many cases, the installation of a roof anchor would involve greater hazard, and challenged OSHA’s determination that it is feasible to apply these fall protection systems for chimney or other roof work. With respect to the issue of greater hazard, while some chimney sweep jobs are relatively short (e.g., chimney cleaning and inspection, minor repairs), some are much longer than five to 20 minutes (e.g., substantial and major installations and repairs) (Exhibit 150). A simple chimney cleaning job typically involves no time on the roof except possibly a short inspection of the exterior of the chimney after the cleaning is finished (Ex. 150; 329 (1/18/ 2011, p. 267, 270, 276–277, 301)). OSHA has modified the rules so roof anchorages are not required for inspections prior to starting work or after completing work (§ 1910.28(a)(2)(ii)). As a result, most short chimney cleaning and inspection jobs will not require use of anchorages and fall protection. In those situations where work actually needs to be done on a roof, and thus more time will be required on the roof, OSHA has modified the rule to except requirements for anchorages in situations where employers can demonstrate that installing anchorages for personal fall arrest systems as well as using any other conventional fall protection is infeasible or creates a greater hazard (§ 1910.28(b)(1)(ii)). Because the length of chimney sweep jobs varies widely as does the time to install anchors, individual determinations on whether installation of personal fall protection anchorages would make the job more dangerous than not using the required fall protection are required. Where anchorages are infeasible or create a greater hazard, employers must develop and implement a fall protection plan, including implementing other control VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 measures, to eliminate or reduce fall hazard hazards for workers. OSHA also differs with the NCSG’s statement above with respect to time requirements and expense for installing fall protections. In response to a question from the OSHA panel on the feasibility and potential benefits of anchorage and lifeline systems on roofs, a representative of the Industrial Safety Equipment Association stated in the public hearing: In the event of existing construction there are permanent roof anchors that can be installed on residential structures and other types of facilities, buildings and so on that can be installed after the construction. And depending upon the type of construction, those can range in cost anywhere from, you know, $35 to a few hundred dollars. And they have varying degrees of installation, again depending upon the type of structure. There are also—if it’s new construction there are different construction techniques where the anchors can be installed, for instance, on the roof truss before the truss is put up into place so that the anchor’s already up there and then you can use first man type systems to anchor your lifeline on the ground before the worker has to climb to do the work at the height. So there are various types of roof anchor products. And you know, I would—every fall protection equipment manufacturer manufactures a number of different types specifically for the roofing industry (Ex. 329 (1/18/2011), pp. 176–177). OSHA also notes that where an employer can show that it is not feasible to use guardrails, safety nets, or personal fall protection systems in work on residential roofs (or it creates a greater hazard), the final rule requires the employer to develop and implement a fall protection plan and training meeting the requirements of the construction standard (final rule § 1910.28(b)(1)(ii)). Charles Lankford of Rios & Lankford Consulting International challenged OSHA’s finding in the PEA that fatalities involving falls represent a risk so significant that only a revised standard with a scope covering all of general industry will address the problem: The relative ranking of falls appears to have more to do with the falling rate of workplace homicides than with an increase in fatal falls, since the rate of fatal falls has remained fairly constant at around 5 and 6 fatal falls per million employees for decades. While it is true that fatal falls were 14% of all fatalities (2009 BLS data), this was not evenly distributed among the industrial sectors. In the ‘‘goods producing’’ sector, falls were the second (or third) leading cause of death, and were ten times more likely than a homicide to be the cause of death. This is the major category that includes mining, agriculture, construction and manufacturing. PO 00000 Frm 00305 Fmt 4701 Sfmt 4700 82797 In contrast, in the service sector, falls were the third (or fourth) leading cause of death. In the service sector overall, homicides were twice as likely to be the cause of death as a fall. In some NAIC codes, homicides were 4 times more likely to be the cause of death than a fall. The service sectors where fatal falls were relatively more likely were: (1) Durable goods wholesale; (2) utilities; (3) information; and (4) administrative and waste services. I’ve focused on fatal falls data rather than non-fatal falls because the non-fatal data are more subject to variations from recordkeeping interpretations, data initiatives, etc. Never-the-less 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). In response to Mr. Lankford’s comment, OSHA notes that, combining data taken from Tables V–1 and V–13, the roughly 5.2 million workers directly exposed to fall hazards had approximately 187,000 lost-workday injuries resulting from falls each year, or 36 injuries per 1,000 workers annually. The hazards faced by these employees are similar, even though they work in a broad range of industries. OSHA believes, as indicated by Mr. Lankford’s comment, that the risk of fall-related injuries, combined with the risk of fall-related fatalities, remained at a constant rate in recent years and that the final rule will help prevent a substantial number of them. Accordingly, OSHA concludes that falls constitute a safety threat best addressed by the final rule’s revisions to existing subparts D and I. d. Monetized Benefits, Net Benefits, and Cost Effectiveness The previous section showed that OSHA judges that complete compliance with the revised standard will result in the prevention of 29 deaths and 5,842 lost-workday injuries each year. Consistent with current federal regulatory methodologies recommended by OMB Circular A–4, discussed below, the Agency assigned a dollar value to these safety benefits. In estimating the value of preventing a fatality, OSHA followed the approach established by the U.S. Environmental Protection Agency (EPA). EPA’s Guidelines for Preparing Economic Analyses provides a detailed review of methods used to estimate mortality-risk values, and summarizes the values obtained in the literature (EPA, 2000). Synthesizing the results from 26 relevant studies, EPA arrived at a mean E:\FR\FM\18NOR7.SGM 18NOR7 82798 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations srobinson on DSK5SPTVN1PROD with RULES6 value for a statistical life (VSL) of $4.8 million (in 1990 dollars). EPA recommends this central estimate, updated for inflation, for application in regulatory analyses. Viscusi and Aldy (2003) presented a metaanalysis of studies in the economics literature that used a willingness-to-pay (WTP) methodology to estimate the imputed value of lifesaving programs, and arrived at a value of approximately $7.0 for each avoided fatality. Applying the GDP deflator (U.S. BEA, 2010), this $7.0-million base number in 2000 dollars yields an estimate of $8.7 million in 2010 dollars for each fatality avoided. This VSL estimate is consistent with EPA’s estimate, and is also within the range of the substantial majority of such estimates in the literature ($1 million to $10 million per statistical life), as discussed in OMB Circular A–4 (OMB, 2003). Applying a VSL of $8.7 million to the estimated number of prevented fatalities, OSHA estimates that the dollar value of the benefits associated with preventing fatal accidents from compliance with revised subparts D and I will be $252.3 million annually. OSHA also reviewed the available research literature regarding the dollar value of preventing an injury. In the paper cited immediately above, Viscusi and Aldy conducted a critical review of 39 studies estimating the value of a statistical injury (Viscusi and Aldy, 2003). In their paper, Viscusi and Aldy reviewed the available WTP literature to VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 identify a suitable range of estimates; using WTP to value non-fatal injuries is the approach recommended in OMB Circular A–4. Viscusi and Aldy found that most studies resulted in estimates in the range of $20,000 to $70,000 per injury (in 2000 dollars), although several studies resulted in higher estimates. That some studies used an overall injury rate, and others used only injuries resulting in lost workdays, partly explains the variation in these estimates. The injuries prevented by final subparts D and I often involve hospitalization and, therefore, are likely to be more severe than the majority of lost-workday injuries. In addition, injuries resulting from falls involve more pain and suffering, more expensive treatments, and generally longer recovery periods than other lostworkday injuries.117 Thus, it is reasonable to believe that the value of a statistical injury for this rulemaking will be in the upper part of the reported range of estimates. Nevertheless, in the preliminary benefits analysis discussed in the PEA, OSHA used a mid-range estimate— $50,000—to assess monetized benefits for injuries and, for this FEA, raised that estimate to $62,000 (2010 dollars) to 117 In 2009, the median number of days away from work was 14 days for falls to a lower level, whereas the median number of days away from work for all events or exposures leading to injury or illness was 8 days (BLS, 2012). For more discussion of this issue, see Part II of this document. PO 00000 Frm 00306 Fmt 4701 Sfmt 4700 account for a rise in the cost of living since 2000, the base year for the monetized values estimated by Viscusi and Aldy when the authors published their 2003 study. Thus, with an estimated 5,842 injuries a year prevented by the final standards, OSHA determined that the dollar value of prevented injuries through compliance with revised subparts D and I will total $362.2 million annually. OSHA estimates that the combined dollar value of prevented fatalities and injuries through compliance with the final revisions to subparts D and I will total $615 million per year. Comparing gross monetized benefits with costs of compliance (discussed in more detail in section V.F, below), OSHA estimates that the net monetized benefits of the final standard will be $310 million ($615 million in benefits—$305.0 million in compliance costs; all figures rounded). Table V–14 summarizes the compliance costs, benefits, net benefits, and cost effectiveness of the final standards. There are other benefits of the final standards that OSHA neither quantified nor monetized. First, OSHA did not estimate the number of fall injuries prevented that do not result in lost workdays. Second, OSHA did not estimate improvements in the efficiency of compliance associated with clarifying the existing rule and bringing it into closer correspondence with current voluntary standards. BILLING CODE 4510–29–P E:\FR\FM\18NOR7.SGM 18NOR7 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 82799 Table V-14 Net Benefits of the Final Subparts D and I Standards (millions of 2010 dollars) Annualized Costs[a] §1910.22 General Requirements $33.2 §1910.23 Ladders $11.3 §1910.24 Step Bolts and Manhole Steps $18.0 §1910.27 Scaffolds and Rope Descent Systems $71.6 §1910.28 Duty to Have Fall Protection $55.9 §1910.29 Fall Protection Systems Criteria and Practices $13.1 §1910.30 Training Requirements $74.2 §1910.132 General Requirements $12.7 §1910.140 Personal Fall Protection Systems $11.0 Rule Familiarization $4.1 Total Annual Costs $305.0 Annual Benefits Number of Injuries Prevented 5,842 Number of Fatalities Prevented 29 Monetized Benefits (assuming $62,000 per injury and $615.0 $8.7 million per fatality prevented) Injuries not Resulting in Lost Workdays and Improved Compliance Efficiency Net Benefits (benefits minus costs) Unquantified $310.0 [a] Data may not sum to totals due to rounding. The monetized benefit per fatality avoided is $8.7 million (in 2010 dollars, after applying the GDP deflator to $7.0 million in 2000 dollars). Source: U.S. Department of Labor, OSHA, Directorate of Standards and Guidance, Office of Regulatory Analysis- VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 PO 00000 Frm 00307 Fmt 4701 Sfmt 4700 E:\FR\FM\18NOR7.SGM 18NOR7 ER18NO16.209</GPH> srobinson on DSK5SPTVN1PROD with RULES6 Safety. 82800 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations BILLING CODE 4510–29–C E. Technological Feasibility OSHA reviewed the substantial evidence collected throughout this rulemaking, including the data and comments submitted to the record in response to the earlier proposed standard published on April 10, 1990, the notice reopening the record published on May 2, 2003, and the recent NPRM (May 24, 2010). Accordingly, OSHA determined that compliance with the final revisions to subparts D, I, and other subparts in 29 CFR part 1910 (general industry), as described in this final rule, is technologically feasible. This subsection presents the details of this conclusion with regard to specific requirements. srobinson on DSK5SPTVN1PROD with RULES6 1. Technological Feasibility for Final Subpart D (Walking-Working Surfaces) General Requirements (§ 1910.22) Section 1910.22 of final subpart D revises existing requirements addressing housekeeping, safe aisles and passageways, covers and guardrails, and floor-loading protection, and introduces new requirements associated with broad areas of safety on walking-working surfaces. Final paragraphs (a), (b), (c), and (d) of this section address, respectively, surface conditions, application of loads, access and egress, and inspection, maintenance, and repair. OSHA received no testimony in the record suggesting that there would be feasibility concerns with final § 1910.22. Final paragraph (a) requires that employers keep all walking-working surfaces in a clean, dry, orderly, and sanitary condition, and free of hazards such as sharp or protruding objects, loose boards, corrosion, leaks, and spills. Data in OSHA’s inspection file analyzed by ERG (ERG, 2007) indicate a high level of compliance with similar requirements in existing subpart D, suggesting that there have been few, if any, technical challenges to employers; therefore, this provision is technologically feasible. Final § 1910.22(b) requires that employers ensure that each walkingworking surface can support the maximum intended load for that surface. This language restates and simplifies the existing regulatory text, and should not present any technological feasibility difficulties. The next provision, final § 1910.22(c), requires that employers provide employees with, and ensure that they use, a safe means of access and egress to and from walking-working surfaces. Although new, this requirement, in OSHA’s judgment, will not impose any VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 duties on employers beyond the limits of feasibility. Paragraph (d) of final § 1910.22 requires employers to regularly inspect and maintain, as necessary, all walking and working surfaces in a safe condition. Employers also must correct and repair all hazardous conditions on walking-working surfaces before employees use them, and guard the surfaces until completing repairs to prevent employee use. A qualified employee must perform or supervise any correction or repair that involves the structural integrity of a walkingworking surface. Employers can accomplish the inspection, maintenance, repair, and guarding of surfaces with technologically feasible and currently available methods. Ladders (§ 1910.23) Final § 1910.23 covers ladders. Accordingly, final § 1910.23(a) specifies that the section applies to all ladders except for ladders used only for firefighting, rescue operations, tactical law enforcement operations, or training for these operations, and ladders designed into, or are an integral part of, a machine or piece of equipment. In addition, final § 1910.23(b) provides general requirements for all ladders; final paragraph (c) addresses portable ladders; final paragraph (d) presents standards for fixed ladders; and final paragraph (e) addresses mobile ladder stands and mobile ladder stand platforms. OSHA based the requirements in this section partly on current American National Standards Institute (ANSI) standards, A14 series. The ANSI standards provide guidelines for industry, and are generally compatible with current industry practices and technology. Since manufacturers make and test virtually all manufactured ladders to meet these ANSI standards, OSHA believes there will be few problems regarding technological feasibility. Most of the requirements for ladders in final subpart D do not represent any change from existing OSHA requirements. For both existing and new requirements, current and readily available technology is capable of meeting or exceeding the design and strength criteria specified for ladders. The final language is clearer and more concise than the existing regulatory text. Moreover, OSHA introduced greater compliance flexibility into the final standard, such as in the case of the range provided in the spacing requirements for rungs, cleats, and steps (see final § 1910.23(b)). Comments submitted to the docket in response to the 1990 proposed rule PO 00000 Frm 00308 Fmt 4701 Sfmt 4700 generally confirmed OSHA’s preliminary conclusion that compliance with the proposed requirements for ladders would be technologically feasible. Although several commenters addressed the appropriateness or the costs associated with the proposed ladder requirements, they did not question the technological feasibility of the requirements. Similarly, during the reopening of the record following publication of the 2010 NPRM, commenters raised concerns about the potential costs for protecting workers on ladders in particular circumstances (see, for example, Exs. 121; 301; 342) or the rationale for excluding ladders from the duty to provide fall protection for heights above four feet (Ex. 185). However, there was no evidence presented that would suggest that the final standard for ladders is technologically infeasible. OSHA grouped training in the proper care, use, and inspection of ladders with other training requirements under final § 1910.30. Compliance with these training requirements does not require any additional or new technology. Step Bolts and Manhole Steps (§ 1910.24) Final subpart D provisions for step bolts and manhole steps address basic criteria for the safe design, construction, and use of these components. For example, final § 1910.24(a)(3) specifies uniform spacing of step bolts between 12 inches (30 cm) and 18 inches (46 cm) measured center to center, while § 1910.24(b)(2)(iv) requires uniform spacing of manhole steps not more than 16 inches (41 cm) apart. Although these requirements will be new to subpart D, OSHA based the engineering criteria on consensus standards established by the American Society for Testing and Materials (ASTM), which have wide acceptance throughout industry. Therefore, OSHA believes that existing technology is capable of meeting these performance criteria and that this technology is feasible to apply. Stairways (§ 1910.25) Section 1910.25 in the final standard describes OSHA safety specifications for stairs, and covers all types of stairs except stairs serving floating roof tanks; stairs on scaffolds; stairs designed into machines or pieces of equipment; and stairs on self-propelled motorized equipment. Requirements in this section address the obligations to install handrails, stair-rail systems, and guardrail systems, as necessary. Other requirements in this section describe design specifications such as the appropriate load capacities that stairs E:\FR\FM\18NOR7.SGM 18NOR7 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations must be able to support, minimum vertical clearances for different types of stairs, the height of risers, the depth of treads, and the proper angle of stairs. These requirements are not substantially different from the requirements of the existing standard; OSHA drew the requirements from NFPA and ANSI consensus codes, indicating that industry already adopted the requirements as a feasible industry practice using existing technology. srobinson on DSK5SPTVN1PROD with RULES6 Dockboards (§ 1910.26) Section 1910.26 provides for the safe movement of personnel and equipment on dockboards (defined in the final standard to include bridge plates and dock plates), and relocates, updates, and clarifies requirements for dockboards located in existing § 1910.30, Other working surfaces. The design, construction, and maintenance of these surfaces must be such as to support their maximum intended load and prevent transfer vehicles from running off the edge. According to final § 1910.26(c), employers must secure portable dockboards with anchors or other means, when feasible, to prevent displacement while in use. Other requirements in this section prevent the sudden displacement of vehicles on dockboards that are in use, and require handholds or other means for safe handling. Compliance with the final requirements for dockboards does not necessitate the use of any new technologies, materials, or production methods; thus, this section is technologically feasible. Scaffolds and Rope Descent Systems (§ 1910.27) Section 1910.27 introduces to subpart D the existing requirements for scaffolds in the construction standards. Thus, for final subpart D, OSHA directly references subpart L in 29 CFR part 1926. In addition, new requirements for rope descent systems will include inspection prior to each workshift; proper rigging; a separate personal fall arrest system; minimum strength criteria for lines used to handle loads; establishment of rescue procedures; effective padding for ropes; and stabilization for descents greater than 130 feet. In addition, final § 1910.27(b)(2) prohibits the use of rope descent systems for heights greater than 300 feet (91 m) above grade unless the employer can demonstrate that it is not feasible to access such heights by any other means or those other means pose a greater hazard than using RDS. Although new to subpart D, industry adopted these and other specifications for the safe use of scaffolds many years VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 ago owing to the publication of ANSI I– 14.1–2001, Window Cleaning Safety (Ex. 14), and a March 12, 1991, OSHA memorandum to Regional Administrators addressing the ANSI standard and the provisions listed above (Ex. OSHA–S029–2006–0662–0019). Therefore, OSHA judges the requirements in this new section on scaffolds to be technologically feasible. Duty To Have Fall Protection and Falling-Object Protection (§ 1910.28) Section 1910.28 restates, clarifies, and adds flexibility and consistency to existing OSHA requirements for providing fall protection to employees. In addition to general requirements for the strength and structural integrity of walking-working surfaces (with reference to § 1910.29, Fall and fallingobject protection systems criteria and practices), this section of the final rule also includes detailed specifications on the following surfaces for which employers have a duty to provide fall protection: • Unprotected sides and edges; • Hoist areas; • Holes; • Dockboards; • Runways and similar walkways; • Dangerous equipment; • Wall openings; • Repair pits, service pits, and assembly pits less than 10 feet in depth; • Fixed ladders (that extend more than 24 feet (7.3 m) above a lower level); • Outdoor advertising (billboards); • Stairways; • Scaffolds and rope descent systems; • Work on low-slope roofs; • Slaughtering facility platforms; and • Walking-working surfaces not otherwise addressed. Hazards on walking-working surfaces can include accidental displacement of materials and equipment. To prevent objects from falling to lower levels and to protect employees from the hazards of falling objects, final § 1910.28(c) requires head protection and screens, toeboards, canopy structures, barricades, or other measures. The final subpart D standards reaffirm the existing Agency interpretation and enforcement practice that fall protection is generally necessary for fall hazards associated with unprotected sides or edges of any surface presenting a fall hazard of four feet or more. In this regard, the obligation of employers to provide fall protection remains substantially unchanged from existing requirements in final subpart D. Whereas the existing requirements specify that employers must protect employees by installing standard guardrail systems or equivalent systems, PO 00000 Frm 00309 Fmt 4701 Sfmt 4700 82801 the final standard more clearly allows employers to provide fall protection through any of several methods, including guardrails, personal fall arrest systems, and safety nets. OSHA recognizes that some work surfaces may present difficult challenges for applying fall protection. One participant in the 1990 NPRM (Ex. OSHA–S041–2006– 0666–0194) pointed out that maintenance work may require that employees be on equipment such as compressors, turbines, or pipe racks at elevations in the range of 4 to 10 feet above lower surfaces, and that guardrails, platforms, ladders, or tying off would not always be possible in such situations. In the current rulemaking for walking-working surfaces, the Sheet Metal and Air Conditioning Contractors National Association (SMACNA) (Ex. 165) appeared to express a similar concern with respect to the duty to provide fall protection in a manufacturing plant. OSHA notes that its enforcement procedures allow special consideration in unique circumstances when compliance with a particular standard may not be feasible or appropriate.118 In general, employers should be able to address and eliminate employee exposures to potential slip, trip, and fall hazards by planning and designing adequate facilities and work procedures. Based on widespread industry practice, OSHA concludes that the fall protection requirements specified by this section of the final standards are technologically feasible. Fall Protection Systems and FallingObject Protection—Criteria and Practices (§ 1910.29) In § 1910.29, OSHA specifies or provides references for revised criteria for fall protection systems such as guardrail systems; handrails; stair rail systems; cages, wells, and platforms used with fixed ladders; toeboards; designated areas; travel restraint systems; safety net systems; grab handles; and fall protection for the outdoor advertising industry. Final § 1910.140, discussed at length below, provides criteria for personal fall protection systems that OSHA is adding to existing subpart I through this rulemaking. With regard to guardrail systems (§ 1910.29(b)), the final subpart D standards do not substantially modify existing requirements involving height, strength, or other criteria. In some circumstances on low slope roofs for 118 See OSHA’s Field Operation Manual: https:// www.osha.gov/OshDoc/Directive_pdf/CPL_02-00150.pdf. E:\FR\FM\18NOR7.SGM 18NOR7 srobinson on DSK5SPTVN1PROD with RULES6 82802 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations which the existing standard requires guardrails (or equivalent protection), the final standard allows employers to use designated areas. Rather than explicitly requiring midrails in guardrail systems as in the existing subpart D standards, the final subpart D standards use performanceoriented criteria that allow midrails, screens, mesh, intermediate members, solid panels, or equivalent intermediate structural members. Compliance with the existing standards would generally also meet the requirements of the final standards. Furthermore, the final standard allows the employer to choose any of a wide variety of currently used and readily available guardrail system materials and designs to meet the performance-oriented criteria. Based on these considerations, the final subpart D requirements for guardrail systems are technologically feasible. Final § 1910.29(c) references the construction standards to specify criteria for safety net systems. The criteria for safety nets established through this final rulemaking include requirements for drop tests and inspections for each safety net installation. Other criteria for safety nets established in final subpart D involve design and strength standards. Employers can achieve all of these criteria by using existing and commonly available safety net systems. The final requirements for installing safety net systems reflect basic safety considerations already adopted by manufacturers of equipment and by employers. Readily available and currently used technology is capable of meeting these requirements. The final standard introduces the option of designated areas (see final § 1910.29(d)) as a means of fall protection available to employers, in addition to other acceptable fall protection measures in certain circumstances on low slope roofs. The technology necessary to implement this option consists of basic materials such as rope, wire, or chain, and supporting stanchions. Employers can achieve the strength, height, and visibility criteria specified in the final standard for designated areas with currently available materials and technology. Requirements for covers for holes in floors, roofs, and other walking-working surfaces in the final standard (see final § 1910.29(e)) simplify and consolidate the proposed requirements for covers and now consist of two new provisions requiring that the cover: (1) Is capable of supporting without failure, at least twice the maximum intended load that may be imposed on the cover at any one time; and (2) Is secured to prevent VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 accidental displacement. The performance-oriented criteria applicable to covers allow for the application of a wide variety of technological solutions. Requirements in final subpart D for handrail and stair rail systems (§ 1910.29(f)) specify criteria for height, strength, finger clearance, and type of surface, among others. Employers currently meet these criteria with existing technology, and a wide variety of different materials and designs are available to comply with the requirements. New requirements in final paragraph (g) of this section specify that landing platforms, as well as all platforms used with fixed ladders and cages and wells, provide a horizontal surface that meets specified dimensions are feasible considering the availability of appropriate materials and engineering expertise. Final § 1910.29(g) also sets criteria for ladder cages and wells, if used on fixed ladders. OSHA notes that the Agency is phasing out the use of cages and wells as a means of fall protection on fixed ladders. See full discussion in summary and explanation of § 1910.28(b)(9). Final paragraph (h) includes requirements for qualifying employees to climb ladders on outdoor advertising that expire two years after publication of the final standard (see § 1910.28(b)(10)). After this two-year period, employers in outdoor advertising must provide one or more of the fall protection systems specified in § 1910.28 for employees who climb fixed ladders. Although new to subpart D, the training and other administrative controls that characterize the development and protection of those working without fall protection have been around for many years. Furthermore, evidence in the record indicates that some employers in outdoor advertising are now providing conventional fall protection for ladders (Ex. 369). Therefore, OSHA concludes that there will be few, if any, technological hurdles for industry to implement the provisions for qualified climbers before and after the two-year expiration date. Final paragraph (i) establishes criteria and practice requirements for ladder safety systems permanently attached to fixed ladders or immediately adjacent to such ladders. A ladder safety system is a conventional fall protection system designed to eliminate or reduce the possibility of falling from a fixed ladder (see definition of ‘‘ladder safety system’’ in final § 1910.21(b)). According to this definition, it usually consists of the following: PO 00000 Frm 00310 Fmt 4701 Sfmt 4700 • A carrier, which is a rigid or flexible track attached to or adjacent to the fixed ladder; • A safety sleeve, which is moving component that travels on the carrier; • A lanyard; • Connectors; and • A body harness. Although the existing rule at § 1910.21(e)(13) addresses ‘‘ladder safety devices,’’ which serve the same purpose as ladder safety systems, the existing rule does not specify criteria or practice requirements for those devices. As a result, OSHA drew many of the proposed ladder safety system criteria and practice requirements from the construction ladder standard at § 1926.1053(a)(22) and (23). The construction standard allows the use of body harnesses or body belts with ladder safety systems. OSHA also drew ladder safety system criteria and practice from ANSI/ASC A14.3–2008. The Agency notes the national consensus standard does not include the use of body belts with ladder safety systems. As noted above, the ladder safety system criteria and practice requirements in the final standard have been published in an OSHA construction standard and in a national consensus standard, and therefore any technological feasibility concerns for the range of structures encountered in general industry would very likely have been addressed in the proceedings that led to those publications. Therefore, OSHA concludes that the final requirements for ladder safety systems are technologically feasible. Final paragraph (j), like the proposed rule, requires that body belts, body harnesses, and other components of personal fall arrest systems, workpositioning systems, and travel restraint systems, meet the applicable requirements in final § 1910.140. Employers currently meet these criteria with existing technology, and a wide variety of different materials and designs are available to comply with the requirements. Final § 1910.29(k) clearly specifies criteria for systems that provide fallingobject protection. OSHA redrafted the provisions in the existing standard addressing toeboards using specification language found in the OSHA construction standard (§ 1926.502(j)(3)) and with national consensus standards (ANSI/ASSE A10.18–2012 (Section 5.7), and ANSI/ASSE A1264.1–2007 (Section 4.1.5) while other requirements for guardrail systems and canopies specified in the design criteria are within current engineering norms. Therefore, OSHA concludes that the E:\FR\FM\18NOR7.SGM 18NOR7 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations falling-object protection provisions are technologically feasible. Lastly, final paragraph (l) contains design and strength criteria for grab handles. For the most part, these requirements are consistent with the requirements for grab handles in existing subpart D and are, therefore, technologically feasible. Training Requirements (§ 1910.30) Section 1910.30 introduces requirements specifying that employees receive training from a qualified person, and that the training, which applies to personal fall protection equipment, prepare employees to recognize fall hazards in the work area, in the procedures to follow to minimize these hazards, and in the installation, inspection, operation, maintenance, disassembly, and correct use of personal fall protection equipment. Employers also must train workers in the proper care, inspection, storage, and use of equipment subpart D covers before workers use that equipment, such as dockboards, RDS, and designated areas. Employers must retrain employees when changes occur in the workplace or in the types of fall protection systems or equipment used that renders the previous training obsolete or inadequate, or employees exhibit an absence of understanding or skill needed to use the equipment or perform the job safely; employers also must train employees in a manner the employees understand. Because of extensive evidence in the record that the training required under the final standard has widespread acceptance throughout industry (Exs. 53; 73; 96; 127; 172; 189; 205; 216; 222; 226; 329 (1/18/2011), pgs. 82, 117, 186, 258; 329 (1/19/2011), pgs. 22, 24; 329 (1/20/2011), pgs. 182, 287; 329 (1/21/2011), pgs. 9, 92, 200, 206; 364), such training will not present technological feasibility concerns. 2. Technological Feasibility for Final Subpart I (Personal Protective Equipment) srobinson on DSK5SPTVN1PROD with RULES6 General Requirements (§ 1910.132) Revised § 1910.132(g) of subpart I in this final rulemaking requires that employers conduct hazard assessments and training in accordance with the requirements in § 1910.132(d) and (f) in workplaces when employers provide personal fall protection equipment to employees. Survey data indicate that a significant percentage of employers currently assess the occupational fall hazards encountered by their employees, and that a similarly large percentage of employers train their employees in the proper use of personal VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 fall protection equipment (OSHA, 1994). These hazard assessment and training requirements, therefore, will not present technological feasibility concerns. Personal Fall Protection Systems (§ 1910.140) The final subpart D standards include provisions for personal fall protection systems, including components such as harnesses, connectors, lifelines, lanyards, anchorages, and travel restraint lines. Section 1910.140 of subpart I specifies the criteria that these components must meet when employees use them. The revisions to the walking-working surfaces and fall protection systems described in the final rule include revisions to several subparts in 29 CFR part 1910 other than subparts D and I. For purposes of this analysis, the determinations of technological feasibility described in this FEA include the revisions of these other subparts. The requirements applicable to personal fall protection systems specified by this final rulemaking codify basic safety criteria for these systems. These criteria reflect common industry safety practices, and currently and readily available equipment meets these criteria. The final standards generally do not require changes in current technology or practices for employers who use standard safety equipment and follow standard safety procedures. The current and ready availability of personal fall protection systems, including personal fall arrest systems, positioning systems, and travel restraint systems, and the application of these technologies in diverse industrial activities and circumstances, demonstrate the technological feasibility of these requirements in the final standard. 3. Summary of Technological Feasibility In conclusion, OSHA determined that compliance with the final revisions to subparts D, I, and other affected subparts of 29 CFR part 1910 is technologically feasible. Thus, there is no technological hindrance to the significant improvement of employee safety on walking and working surfaces resulting from implementation of this final rule. F. Costs of Compliance 1. Introduction This subsection presents OSHA’s final analysis of the compliance costs associated with the final standard for walking-working surfaces and fall protection in general industry. Following discussion on the public PO 00000 Frm 00311 Fmt 4701 Sfmt 4700 82803 comments addressing OSHA’s preliminary estimate of compliance costs and OSHA’s response to those comments, the cost analysis proceeds into a discussion of the assumptions used in the analysis. OSHA based its final analysis of compliance costs largely on the cost analysis conducted by OSHA’s contractor, Eastern Research Group (ERG, 2007), and the Preliminary Economic Analysis. The presentation below focuses on what constitutes the regulatory baseline (i.e., current conditions) from which OSHA measured the costs, impacts, and benefits of the final rule. The Agency also discusses the effect of consensus standards and the compliance rates for the existing rule on the cost analysis (i.e., when codification of existing consensus standards results in little to no incremental costs for the final rule). Following the discussion of baseline assumptions, the next subsection reviews the final rule on a paragraph-byparagraph basis for those paragraphs that potentially could result in costs to industry. The final subsection examines one-time costs to bring employers into compliance with the rule, as well as the annual costs for training new employees and retraining existing employees. OSHA presents the cost estimates by affected industry, and by applicable provision. The final subsection concludes with a discussion and tables that summarize the costs for each section of the standard, and aggregates them to estimate total costs. 2. Public Comments on the Preliminary Cost Analysis OSHA requested comment on the assumptions, unit costs, and analytical methods applied in the preliminary cost analysis for proposed subparts D and I. The discussion below summarizes the public comments addressing OSHA’s preliminary cost analysis and OSHA’s response to those comments. The Sheet Metal and Air Conditioning Contractors National Association (SMACNA) was critical of OSHA’s estimate of compliance costs, stating: A review of the anticipated costs indicates that OSHA has under-estimated the actual costs to employers to comply with the requirements of these rules. SMACNA encourages OSHA to conduct further outreach to employers to find the true costs associated with the revisions to company operations, purchasing equipment and conducting training that these proposed standards would require. With over 5 million small businesses affected by these requirements (OSHA’s data), it is fair and prudent upon OSHA to outreach to these companies by convening a Small Business Regulatory Enforcement Fairness Act panel. (Ex.165, p. 5.) E:\FR\FM\18NOR7.SGM 18NOR7 82804 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations srobinson on DSK5SPTVN1PROD with RULES6 With respect to the convening of a Small Business Regulatory Enforcement Fairness Act (SBREFA) panel, OSHA in the NPRM certified that the proposed standard would not have a significant impact on a substantial number of small firms, which satisfied the statutory requirements at the time OSHA published the NPRM. Other stakeholders who also requested that OSHA convene a SBREFA panel include the National Federation of Independent Businesses (Ex. 173) and the U.S. Chamber of Commerce (Ex. 202). With respect to SMACNA’s assertion that OSHA underestimated compliance costs, SMACNA did not provide any further details to support its statement, and, therefore, OSHA has no basis to evaluate the criticism. ORC HSE Networks, a division of Mercer LLC, expressed concerns about the proposed requirement, found in § 1910.29(b)(1), that the top edge of guardrail systems be 42 inches (107 cm), plus or minus 3 inches (8 cm), above the walking-working surface. Mercer’s comment reads as follows: In a footnote on page 28894 of the May 24 notice of proposal, OSHA stated that it decided not to include existing guardrails having top edges as low as 36 inches from the working surface in any of the ‘‘grandfathering’’ provisions of this rule despite such a provision having been included in the previous proposals and acknowledged as a ‘‘de minimis’’ violation of the existing standard in various OSHA letters of interpretation. While OSHA states that it does not consider 36 inches to be ‘‘equally safe’’ to the ‘‘42 inches nominal’’ requirement in the existing standard or the 42 inches plus or minus three inches in the proposed rules, OSHA provided no rationale or support for this proposed decision. OSHA’s economic and benefits analyses should estimate the number of injuries that would be prevented if existing guardrails that have heights between 36 and 39 inches must be replaced with those having at least a 39inch height. In addition, OSHA should determine the costs that will be associated with replacing guardrails with top edge heights between 36 and 39 inches and include them in the regulatory and economic feasibility analyses for these rules. 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 effective date of the new rules. Only new or remodeled facilities should be required to follow the new requirement for top edge height of guardrails. (Ex. 170, p. 6.) As noted in the NPRM (75 FR 28894), the proposed provision for the height of guardrail systems was essentially the VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 same as the existing requirement in § 1910.23(e)(1). Despite proposed grandfathering of guardrails with heights as low as 36 inches (above the working surface) under the two previous proposals (1973 and 1990), OSHA believes that in the 40 or so years since it issued the existing standard, a large percentage of the walking-working surfaces protected by guardrails are in compliance with the 39-inch minimumheight standard. In the absence of data in the record on the range of heights of guardrails throughout industry, OSHA believes that the percentage of guardrail systems not meeting the minimum height requirement is low. Therefore, if OSHA’s belief is correct, the additional cost burden and economic impacts for employers not in compliance with the final height requirement would be relatively insubstantial and, therefore, would not present economic feasibility concerns. Corporate Cleaning Services, a leading window washing company in Chicago, urged OSHA to consider the economic ramifications of limiting the permitted distance when using rope descent systems (RDS) to 300 feet (Ex. 126). In written testimony, Corporate Cleaning Services stated that the use of suspended scaffolds could add up to 30 percent to the time required to complete a job compared with RDS. By comparison, in a post-hearing comment, Valcourt Building Services estimated that the cost increase would range from 10 to 20 percent if it had to use a permanent scaffold installation as an alternative to RDS (Ex. 358). In response to these comments, OSHA in this FEA estimated the costs and economic impact of the 300-foot distance limitation for RDS specified in the final rule. OSHA discusses the revised cost estimate below under § 1910.27, Scaffolds and rope descent systems. Charles Lankford of Rios & Lankford Consulting International argued that OSHA’s requirement, under the paragraph for general conditions, that walking-working surfaces be designed, constructed, and maintained free of recognized hazards would impose legal responsibilities, and hence, legal costs, on employers that OSHA neglected in the PEA. Mr. Lankford stated: My review of the risk-benefit analysis in the proposed rule did not find that OSHA considered the costs of defending from citations being issued after the collapse of a surface the employer did not have tested or evaluated by an engineer after a plant purchase, that might have resulted in a fatality. It is reasonable to expect that litigation costs arising from new regulations should be included in an estimate of costs, when conducting a risk-benefit analysis. PO 00000 Frm 00312 Fmt 4701 Sfmt 4700 OSHA does not seem to have considered all the ramifications, or having considered them, opted to leave them in a grey area so as to more broadly enforce these provisions to the detriment of employers. (Ex. 368.) OSHA agrees with Mr. Lankford that the failure of employers to exercise due diligence in ensuring the safety of workers on surfaces could result in torts and other legal expenses. However, the probability of legal liability will diminish to the extent that employers expend the resources necessary to achieve compliance with more stringent fall protections. In a comment to the record and testimony at the public hearing, the National Chimney Sweep Guild (NCSG) expressed concerns about the costs and economic feasibility of compliance with the proposed standard for the businesses performing chimneycleaning services and other related work on residential roofs (Exs. 150; 296; 329 (1/18/2011), p. 342; 365). The following post-hearing comment summarizes the views voiced by NCSG throughout the rulemaking: If adopted and enforced as proposed, the provisions of the Proposed Rule that address the structural integrity and condition of walking-working surfaces, the use of ladders, and the selection and use of fall protection would: (1) substantially affect the manner in which chimney sweeps perform their work; (2) expose sweeps (and/or the roofing trade) to greater hazards than current industry practices; (3) threaten the continuing economic viability of the chimney sweeps industry; and (4) threaten the availability of chimney inspection, sweeping and repair services at affordable prices, which would be expected to result in less chimney inspections/sweeping/repairs and a significant increase in residential fires and/ or an increase in falls by homeowners or other self-employed individuals who would perform these tasks. (Ex. 365, pp. 2–3.) Below under the heading ‘‘Cost estimates’’ and in section H, Regulatory Flexibility Screening Analysis, OSHA addresses NCSG’s concerns. 3. Cost Assumptions a. Baseline for Estimating Costs The Office of Management and Budget’s guidance on regulatory analysis (OMB, 2003) discusses how to develop a baseline against which to measure the costs and benefits of a rule. The baseline should be the best assessment of conditions absent the proposed standard, and is frequently assumed to resemble the present practice broadly observed among affected employers (although the more technically correct approach from a benefit cost analysis viewpoint, where feasible, is to project the hypothetical future state of the world in the absence E:\FR\FM\18NOR7.SGM 18NOR7 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations srobinson on DSK5SPTVN1PROD with RULES6 of the rule). The baseline for this final cost analysis, then, includes rates of compliance with existing subparts D and I, as well as with applicable national consensus standards. For a discussion on the theoretical underpinnings for the use of consensus VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 standards as a baseline in OSHA’s cost analysis, see ERG, 2007. OSHA analyzed Agency inspections for fiscal year 2005 that resulted in a citation (OSHA, 2006a); see Table V–15. The first column in the table presents cases for which OSHA issued a citation for any reason, and the other columns PO 00000 Frm 00313 Fmt 4701 Sfmt 4700 82805 in the table indicate cases of noncompliance with a section of 29 CFR part 1910, subpart D. Table V–15 may overstate the noncompliance rate because it does not include inspections for which no citations were issued. BILLING CODE 4510–29–P E:\FR\FM\18NOR7.SGM 18NOR7 srobinson on DSK5SPTVN1PROD with RULES6 Inspections With Subpart D Citations §1910.23 §1910.24 §1910.25 §1910.26 §1910.27 Jkt 241001 Fixed Industrial Portable Wood Portable Metal Floor Guarding Ladders Fixed Ladders Stairs Ladders §1910.28 §1910.29 Scaffolding Manually Propelled Aerial Platforms Frm 00314 Fmt 4701 Sfmt 4700 18NOR7 § 1910.23 vary by industry. For example, the Finance, Insurance, and E:\FR\FM\18NOR7.SGM upper-bound non-compliance rates for floor-guarding requirements in current PO 00000 Sector Total Manufacturing 6,773 732 10.8% 168 2.5% 18 0.3% 23 0.3% 60 0.9% 16 0.2% 19 0.3% 1,301 115 8.8% 15 1.2% 0 0.0% 7 0.5% 11 0.8% 3 0.2% 5 0.4% Retail trade 680 58 8.5% 14 2.1% 2 0.3% 6 0.9% 3 0.4% 1 0.1% 2 0.3% Wholesale trade 670 91 13.6% 18 2.7% 1 0.1% 7 1.0% 8 1.2% 4 0.6% 0 0.0% 107 3 2.8% 0 0.0% 0 0.0% 2 1.9% 0 0.0% 1 0.9% 0 0.0% Services 1,938 106 5.5% 19 1.0% 4 0.2% 5 0.3% 10 0.5% 15 0.8% 3 0.2% IAII sectors 11,469 1,105 9.6% 234 2.0% 25 0.2% 50 0.4% 92 0.8% 40 0.3% 29 0.3% Transportation and Finance, Insurance, and Real Estate Source: ERG, 2007, based on analysis of OSHA's Integrated Management Information System inspection database (OSHA, 2006a). Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations With Citations ts ~ Inspections Utilities ER18NO16.210</GPH> r 82806 23:45 Nov 17, 2016 Based on the analysis presented in Table V–15, OSHA determined that VerDate Sep<11>2014 c Table V-15 "th Existina 29 CFR 1910 R' Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations Real Estate category has the lowest noncompliance rate (2.8 percent), while Wholesale Trade has the highest noncompliance rate (13.6 percent). For the requirements for fixed industrial stairs, the non-compliance rates are quite low, ranging from 0 percent (Finance, Insurance, and Real Estate) to 2.7 percent (Wholesale Trade). For the remaining sections (portable wood ladders, portable metal ladders, fixed ladders, scaffolding, and manually propelled mobile ladder stands and scaffolds), non-compliance rates do not exceed 1.9 percent. Thus, for §§ 1910.25 through 1910.29, the assumption of 100 percent industry compliance with the existing requirements may be reasonable.119 That is, employers will incur costs only when the final requirements exceed the existing requirements. OSHA requested comments on rates and levels of noncompliance with respect to existing requirements in subpart D, but received no comments; therefore, OSHA applied the preliminary compliance estimates for existing subpart D in this FEA. If meeting an existing requirement also would meet the final requirement, OSHA did not assign costs to the provision. For example, the existing language for § 1910.27(b)(1)(iii) states that the clear length of a rung or cleat in a fixed ladder shall be a minimum of 16 inches. Final § 1910.23(b)(4)(iii) states that rungs and steps on rolling ladders used in telecommunication centers must have a minimum clear step or rung width of 8 inches (20 cm). A srobinson on DSK5SPTVN1PROD with RULES6 119 OSHA implicitly considered the costs for all industrial sectors to meet the existing standards when it published those standards. VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 rolling ladder in telecommunications that meets existing requirements (16 inches) would also meet the new requirements (a minimum of 8 inches); hence, OSHA assigned no costs to the final requirement. Later in this cost analysis, a detailed provision-byprovision examination of potential costs will provide further concrete examples of OSHA’s application of estimates of current industry compliance and practices. b. Compliance With National Consensus Standards In some instances, the final rule’s provisions reflect existing national consensus standards, and OSHA used information on adherence to those standards to estimate compliance rates with the concerned provisions. Due to general adherence to national consensus standards, for purposes of this analysis, national consensus standards serve as the ‘‘baseline’’ against which OSHA measured the incremental costs and benefits of the final standard. If the final standard requires a level of safety equivalent to that in an existing consensus standard, then there is no difference between the final standard and the baseline except that the final standard would be mandatory rather than voluntary. Thus, the costs are those costs associated with the change from a voluntary standard to a mandatory standard. In such cases, OSHA assumes employers in compliance with the voluntary consensus standard incur no additional costs to meet the final rule’s requirements. Only that part of the employer population that currently does not comply with the voluntary PO 00000 Frm 00315 Fmt 4701 Sfmt 4700 82807 standards would incur these costs. If, however, the final standard is more stringent than the consensus standard, OSHA assumed that employers who are not already following practices that would constitute compliance with the final standard would incur compliance costs solely attributable to the final OSHA standard. ERG developed a logic-flow diagram outlining the process for identifying costs associated with new regulatory language (see ERG, 2007, Figure 3–2). The starting point is a side-by-side, provision-by-provision comparison of the existing and final regulatory language. In many cases, the language changed to enhance comprehension of the regulation without changing the scope of activities covered or its requirements. In some cases, the final language gives the employer alternative methods of compliance that provide protection for employees equivalent to the original standard, thereby resulting in no costs to the employer. If there is a change from the existing to the final standard, the second decision point is to determine whether the final standard is equivalent to an existing consensus standard. If it is, then there would be no costs associated with the final standard for those employers already meeting the consensus standard, but there would be costs for those employers currently not meeting the consensus standard. Table V–16 lists the national consensus standards used in subparts D and I and the associated section of the final rule for subparts D and I that refer to each of these consensus standards. E:\FR\FM\18NOR7.SGM 18NOR7 82808 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations Table V-16 Final Subpart D Requirements and Associated National Consensus Standards Subpart D Section National Consensus Standard §1910.22 General ANSI/ASSE A1264.2-2012, Standard for the Provision of Slip Resistance on Requirements Walking/Working Surfaces. ANSI A14.1-2007, American National Standard for Ladders- Wood Safety Requirements. ANSI A14.2-2007, American National Standard for Ladders- Portable MetalSafety Requirements. §1910.23 Ladders ANSI A14.3-2008, American National Standard for Ladders- Fixed- Safety Requirements. ANSI A14.5-2007, American National Standard for Ladders- Portable Reinforced Plastic - Safety Requirements. ANSI A 14.7-2011, Safety Requirements for Mobile Ladder Stands and Mobile VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 PO 00000 Frm 00316 Fmt 4701 Sfmt 4725 E:\FR\FM\18NOR7.SGM 18NOR7 ER18NO16.211</GPH> srobinson on DSK5SPTVN1PROD with RULES6 Ladder Stand Platforms. Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 82809 Table V-16 Final Subpart D Requirements and National Consensus Standards (continued) Subpart D Section National Consensus Standard ASTM C478-13, Standard Specification for Precast Reinforced Concrete Manhole Sections. ASTM A394-08, American Society for Testing and Materials Specification for Steel Transmission Tower Bolts, Zinc-Coated and Bare. §1910.24 Step Bolts and ASTM C497-13, American Society for Testing and Materials Test Methods for Manhole Steps Concrete Pipe, Manhole Sections, or Tile. IEEE120 1307-2004, IEEE Standard for Fall Protection for Utility Work. TIA 121_222-G-2009, Structural Standard for Antenna Supporting Structures and Antennas. 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. §1910.25 Stairways NFPA 101-2012, National Fire Protection Association Life Safety Code. ICC IBC-2012, International Code Council International Building Code. ITSDF B56.1-2012, Industrial Truck Standards Development Foundation, Trucks, Low and High Lift, Safety Standard. ANSI/MH30.1-2007, Specification for Dock Leveling Devices. §1910.26 Dockboards ANSI/MH30.2-2005, Portable Dock Loading Devices: Safety, Performance, and Testing. 120 121 VerDate Sep<11>2014 IEEE: Institute of Electrical and Electronics Engineers. TIA: Telecommunications Industry Association. 23:45 Nov 17, 2016 Jkt 241001 PO 00000 Frm 00317 Fmt 4701 Sfmt 4725 E:\FR\FM\18NOR7.SGM 18NOR7 ER18NO16.212</GPH> srobinson on DSK5SPTVN1PROD with RULES6 ASME/ANSI MH14.1-1987, Loading Dock Levelers and Dockboards 82810 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations Table V-16 Final Subpart D Requirements and National Consensus Standards (continued) Subpart D Section National Consensus Standard ANSI/IWCA 1-14.1-2001, Window Cleaning Safety. ANSI/ASCE 7-2010, American National Standard for Minimum Design Loads for Buildings and Other Structures. §1910.27 Scaffolds and Rope Descent Systems ANSI/ASSE Z359.4-2012, Safety Requirements for Assisted-Rescue and SelfRescue Systems, Subsystems and Components. §1910.28 Duty to Have ANSI A10.11-2010, Safety Requirements for Personnel and Debris Nets. Fall Protection ANSI A14.3-2008, American National Standard for Ladders- Fixed- Safety § 191 0.29 Fall Protection Systems Criteria and Practices Requirements. ANSI A 1264.1-2007, Safety Requirements for Workplace Walking/Working Surfaces and Their Access; Workplace, Floor, Wall and Floor Openings; Stairs and Guardrail Systems. § 191 0.30 Training VerDate Sep<11>2014 23:45 Nov 17, 2016 ANSI/IWCA 1-14.1-2001, Window Cleaning Safety. Jkt 241001 PO 00000 Frm 00318 Fmt 4701 Sfmt 4725 E:\FR\FM\18NOR7.SGM 18NOR7 ER18NO16.213</GPH> srobinson on DSK5SPTVN1PROD with RULES6 Requirements Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 82811 Table V-16 Final Subpart D Requirements and National Consensus Standards (continued} Subpart D Section National Consensus Standard ANSI 2359.0-2012, Definitions and Nomenclature Used for Fall Protection and Fall Arrest. ANSI 2359.1-2007, Safety Requirements for Personal Fall Arrest Systems, Subsystems and Components. §1910.140 Personal fall protection systems ANSI 2359.2-2007, Minimum Requirements for a Comprehensive Managed Fall Protection Program. ANSI 2359.3-2007, Safety Requirements for Positioning and Travel Restraint Systems. ANSI 2359.4-2013, Safety Requirements for Assisted-Rescue and Self-Rescue Systems, Subsystems and Components. VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 PO 00000 Frm 00319 Fmt 4701 Sfmt 4725 E:\FR\FM\18NOR7.SGM 18NOR7 ER18NO16.214</GPH> srobinson on DSK5SPTVN1PROD with RULES6 Source: U.S. Department of Labor, OSHA, Directorate of Standards and Guidance, Office of Regulatory Analysis-Safety. 82812 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations srobinson on DSK5SPTVN1PROD with RULES6 At the next decision point, if the final standard differs from the existing requirements, the presence or absence of a ‘‘grandfather’’ provision determines whether employers incur costs to retrofit and upgrade to the new requirements when the standard becomes effective or when employers replace infrastructure or equipment at a time of their choosing. OSHA discusses the cost effects of grandfather provisions in more detail below and in the ERG report (ERG, 2007). Some equipment addressed by the final standard, such as portable ladders or mobile ladder stands, is commercially available to employers in ready-to-use condition. OSHA believes that manufacturers design and fabricate such equipment, in virtually all cases, to meet current consensus standards because equipment manufacturers seek to avoid: (1) The small market represented by employers that would purchase non-compliant equipment, and (2) the liabilities associated with manufacturing non-compliant equipment. Typically, employers use architects, engineers, and/or contractors to design, fabricate, and install certain types of site-specific equipment. While it is conceivable that an employer might insist on installing nonconforming equipment, OSHA believes that professional standards for architects and engineers, local building codes, and potential liability concerns dictate that virtually all employers voluntarily use equipment conforming to existing national consensus standards. For these reasons, OSHA concludes that compliant equipment will be available to meet the final requirements of VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 subparts D and I. For example, final § 1910.23(b)(1) specifies that ladder rungs and steps must be parallel, level, and uniformly spaced when the ladder is in a position for use. While existing § 1910.25(c)(2)(i)(b) covers steps, no existing OSHA standard covers rungs. However, current national consensus standards cover both rungs and steps (see Table V–16). Likewise, the spacing requirements for the steps of step stools and the rungs, steps, and cleats of ladders covered by final paragraphs § 1910.23(b)(3) and (4) are new (i.e., not in the existing standard); however, the current consensus standard for ladders includes these spacing requirements. Similarly, final § 1910.23(d)(7) requires that grab bars on fixed ladders extend 42 inches (1.1 m) above the access level or landing platform served by the ladder. While the existing standard does not have a similar provision, the provision is in the ANSI 14.3–2008 standard for fixed ladders. Therefore, OSHA did not assign costs to final § 1910.23(d)(7). In conclusion, for establishing a baseline, OSHA assumed that equipment and work practices met the national consensus standard in effect at the time of installation, and did not estimate costs when the provisions in the final standard and the current national consensus standards were equivalent. For additional analysis of the interface between national consensus standards and OSHA standards, see ERG, 2007, pp. 3–6 and 3–14. c. Compliance Using the Least-Cost Method Consistent with past practice, OSHA assumed that employers would meet a PO 00000 Frm 00320 Fmt 4701 Sfmt 4700 regulatory requirement by choosing the least expensive means to do so. For example, under final § 1910.28(b)(1), an employer can meet the duty to have fall protection for an employee on a walking-working surface with an unprotected side or edge by using: (A) Guardrail systems, (B) safety net systems, or (C) personal fall protection systems such as personal fall arrest, travel restraint, or work-positioning systems. If (A)–(C) are not feasible or create a greater hazard for residential roofing work, the final standard permits a fourth option, i.e., developing and implementing a specified fall protection plan. The existing standard only specifies options (A)–(C); therefore, OSHA assigned no costs to § 1910.28(b)(1) except when there were ambiguities in the scope of the existing standard, such as its application to loading docks or teeming platforms. In some cases, when the final rule gives an employer a lower-cost compliance option than is currently available, the employer could realize a cost savings. However, OSHA did not estimate such savings in this analysis. d. No Costs Due to Grandfathering Provision Table V–17 lists the paragraphs in the final standard with new requirements, but which also have a ‘‘grandfather’’ provision for existing conditions. A grandfather provision exempts equipment that currently is in place from requirements that strengthen or upgrade the safety features of the equipment. Therefore, employers do not incur costs associated with modifying or replacing equipment covered by these paragraphs. E:\FR\FM\18NOR7.SGM 18NOR7 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 82813 Table V-17 Paragraphs in Final Subpart D with Grandfather or DelayedImplementation Prov1s1ons Paragraph Subject The employer must ensure that step bolts installed on or after January §1910.24(a)(1) 17, 2017 in an environment where corrosion may occur are constructed of, or coated with, material that protects against corrosion. The employer must ensure that step bolts installed on or after January §1910.24(a)(7) 17, 2017 are capable of supporting at least four times their maximum intended load. The employer must ensure that manhole steps are capable of §1910.24(b)(1) supporting their maximum intended load. The employer must ensure that manhole steps installed on or after January 17, 2017: (i) Have a corrugated, knurled, dimpled, or other surface that minimizes the possibility of an employee slipping; (ii) are constructed of, or coated with, material that protects against corrosion in an environment where corrosion may occur; (iii) have a minimum clear step width of 10 inches (25 em); (iv) are uniformly spaced at a §1910.24(b)(2) vertical distance not more than 16 inches (41 em) apart, measured center to center between steps. The spacing from the entry and exit surface to the first manhole step may differ from the spacing between the other steps; (v) have a minimum perpendicular distance between the centerline of the manhole step to the nearest permanent object in back of the step of at least 4.5 inches (11 em); and (vi) are designed, constructed, and maintained to prevent the employee's foot from VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 PO 00000 Frm 00321 Fmt 4701 Sfmt 4725 E:\FR\FM\18NOR7.SGM 18NOR7 ER18NO16.215</GPH> srobinson on DSK5SPTVN1PROD with RULES6 slipping or sliding off the end. 82814 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations Table V-17 Paragraphs in Final Subpart D with Grandfather or DelayedImplementation Provisions (continued) Paragraph Subject The employer must ensure that, when a door or a gate opens directly on a stairway, a platform is provided, and the swing of the door or gate does not reduce the effective usable depth to: (i) Less than 20 inches §1910.25(b)(5) (51 em) for platforms installed before January 17, 2017; and (ii) less than 22 inches (56 em) for platforms installed on or after January 17, 2017. The employer must ensure that dockboards put into service on or after January 17, 2017 are designed, constructed, and maintained to prevent transfer vehicles from running off the dockboard edge. Exception: §1910.26(b) When the employer demonstrates there is no hazard of transfer vehicles running off the dockboard edge, the employer may use dockboards that do not have run-off protection. The employer must ensure: (A) Existing fixed ladders. Each fixed ladder installed before November 19,2018 is equipped with a personal fall arrest system, ladder safety system, cage, or well; (B) New fixed ladders. Each fixed ladder installed on or after November 19, 2018, is equipped with a personal fall arrest system or a ladder safety system; (C) Replacement. When a fixed ladder, cage, or well, or any portion of §1910.28(b)(9) 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; and (D) Final deadline. On and after November 18, 2036, all fixed ladders are equipped with a personal fall arrest system or a ladder safety system. The employer must ensure: (A) The height of stair rail systems installed before January 17, 2017 is not be less than 30 inches (76 em) § 191 0.29(f)(1 )(ii) from the leading edge of the stair tread to the top surface of the top rail; and (B) the height of stair rail systems installed on or after January 17, 2017 is not less than 42 inches ( 107 em) from the leading edge of the Source: U.S. Department of Labor, OSHA, Directorate of Standards and Guidance, Office of Regulatory Analysis-Safety. VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 PO 00000 Frm 00322 Fmt 4701 Sfmt 4725 E:\FR\FM\18NOR7.SGM 18NOR7 ER18NO16.216</GPH> srobinson on DSK5SPTVN1PROD with RULES6 stair tread to the top surface of the top rail. Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations srobinson on DSK5SPTVN1PROD with RULES6 4. Cost Impacts for Final Subparts D (Walking-Working Surfaces) This subsection provides a brief paragraph-by-paragraph review of the final rule. OSHA took a two-step approach to determining the cost impacts of the final rule. First, the Agency looked at requirements that represent changes from the existing walking working surfaces and personal protective equipment standards to determine whether they might involve additional incremental costs. That analysis is described in this subsection and subsection 5. In subsection 6, ‘‘Cost Estimates,’’ OSHA discusses how it reached an estimate of the costs for each provision OSHA identified as involving additional costs. Table V–18 summarizes the paragraphs in the final subparts D and I that represent changes from the VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 existing standards and might result in costs to employers if current industry practice falls short of the requirements of the rule. In the PEA, these costs primarily involved inspection and training; for this FEA, OSHA also identified significant costs for engineering and administrative controls and personal protective equipment. For the purpose of this analysis, OSHA distinguished between informal and formal training. For example, final § 1910.23(b)(11) states that an employee must face the ladder when ascending or descending. For this provision, OSHA assumed that employers provide such instruction on an in-house basis (e.g., ‘‘on-the-job’’ training), using materials such as OSHA training videos. When employers deliver training on an ongoing, less formal basis, OSHA did not assign a tracking or recordkeeping PO 00000 Frm 00323 Fmt 4701 Sfmt 4700 82815 cost to it. However, as indicated in the table, OSHA attributed employer costs (and employee benefits, as discussed later in this FEA) to such provisions, where OSHA judged that additional training would be required beyond baseline practice.122 When the regulatory text uses the words ‘‘trained’’ or ‘‘training,’’ OSHA assumed that employers would deliver the instruction on a more formal basis, possibly hiring a contractor to deliver the training. OSHA assumed that an employer would maintain documentation of all formal training and, thus, assigned a cost for this administrative task. 122 See the discussion later in this section and Ex. [OSHA Excel Workbook], tabs one_time_23 and annual_23, for details on the training costs attributed to the final requirements for ladders under § 1910.23(b) and (c). E:\FR\FM\18NOR7.SGM 18NOR7 82816 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations Table V-18 Paragraphs of the Final Standards for Subparts D and I Evaluated Further for COSt Impacs t Paragraph Subject The employer must ensure that each walking-working surface can §1910.22(b) support the maximum intended load for that surface. The employer must inspect walking-working surfaces regularly and as §191 0.22(d)(1) necessary, and maintain them in a safe condition. The employer must correct and repair any hazardous conditions on walking-working surfaces before employees use the surfaces. If the employer cannot make the correction or repair immediately, then they §191 0.22(d)(2) must guard the hazardous conditions to prevent employees from using the surfaces until the hazard is corrected or repaired. The employer must ensure that a qualified person performs or supervises § 191 0.22(d)(3) any correction or repair that involves the structural integrity of the walking working surface. §1910.23(b)(11) The employer must ensure that when ascending or descending a ladder, the employee faces the ladder. [This is a training requirement.] The employer must ensure that each employee uses at least one hand to §191 0.23(b)(12) grasp the ladder when progressing up and down the ladder. [This is a training requirement.] The employer must ensure that an employee climbing up or down a §1910.23(b)(13) ladder must not carry any object or load that could cause the employee to lose balance and fall. [This is a training requirement.] Employers may not use portable, single-rail ladders. [This is a training §1910.23(c)(5) requirement.] The employer must ensure that ladders are not moved, shifted, or §1910.23(c)(6) extended while occupied by employees. [This is a training requirement.] The employer must ensure that ladders used on slippery surfaces are §1910.23(c)(9) secured and stabilized. [This is a training requirement.] The employer must ensure that both rails support the top of non-self- §1910.23(c)(10) supporting ladders, unless the ladder is equipped with a single support attachment. [This is a training requirement.] The employer must ensure that the side rails of a ladder used to access §1910.23(c)(11) an upper landing extend at least 3 feet above the landing surface. [This is a training requirement.] §1910.23(e)(1)- (e)(3) requirements for such design specifications as step width, load capacity, work surface height, and the provision of stair handrails. VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 PO 00000 Frm 00324 Fmt 4701 Sfmt 4725 E:\FR\FM\18NOR7.SGM 18NOR7 ER18NO16.217</GPH> srobinson on DSK5SPTVN1PROD with RULES6 The employer must ensure mobile ladder stands and platforms meet Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 82817 Table V-18 Paragraphs of the Final Standards for Subparts D and I Evaluated Further for Cost Impacts (continued) Paragraph Subject The employer must ensure that mobile ladder stands and platforms are §191 0.23(e)(1 )(viii) not moved when occupied by an employee. [This is a training requirement.] The employer must inspect 123 each step bolt at the start of the workshift §1910.24(a)(8) and maintain the step bolts in accordance with §1910.22. § 191 0.24(b)(2)(i) § 191 0.24(b)(2)(ii) The employer must provide manhole steps with slip resistant surfaces. The employer must provide manhole steps that are protected against corrosion The employer must ensure that manhole steps are designed, § 191 0.24(b)(2)(vi) constructed, and maintained to prevent the employee's foot from slipping or sliding off the end of the manhole step. The employer must inspect 124 each manhole step before each workshift § 191 0.24(b )(3) and maintain the steps in accordance with §1910.22. The employer must ensure that employees who use rope descent § 191 0.27(b)(2)(iii) systems receive training in accordance with §1910.30. §1910.27(b)(2)(iv) and (b)(2)(v) The employer must ensure that rope descent systems used by employees are inspected at the start of each workshift and have proper rigging, including anchorages and tiebacks. Employee must be protected while working on a surface with an 1910.28(b)(1) unprotected side or edge from falling 4 feet (1.2 m) or more to a lower level. §191 0.28(b)( 4)(i) The employer must install guardrails or handrails on deckboards. Employers must ensure that existing, new, and replaced ladders and § 191 0.28(b )(9)(i)(A)- ladder sections are equipped with the specified fall protection systems, (D) cages, or wells (depending on implementation date, cages and wells may not be considered fall protection systems). The employer must ensure that each employee who climbs fixed ladders §191 0.28(b)(10)(ii)(A) on billboards receives the training and demonstrates the physical capability to perform the necessary climbs in accordance with § 191 0.29(h). The requirement in the proposed standard that step bolts be "visually inspected" was revised in the final standard to read that step bolts be "inspected." 124 The requirement in the proposed standard that manhole step be "visually inspected" was revised in the final standard to read that manhole steps be "inspected." VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 PO 00000 Frm 00325 Fmt 4701 Sfmt 4725 E:\FR\FM\18NOR7.SGM 18NOR7 ER18NO16.218</GPH> srobinson on DSK5SPTVN1PROD with RULES6 123 82818 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations Table V-18 Paragraphs of the Final Standards for Subparts D and I Evaluated Further for Cost Impacts (continued) Paragraph Subject The employer must ensure that employees have both hands free of tools § 191 0.28(b )(1 O)(ii)(C) or material while ascending or descending fixed ladders on billboards. (This is a training requirement.] The employer must protect employees from falls on low slope roof by §1910.28(b)(13) using a guardrail systems, safety net system, travel restraint system, personal fall arrest system, or designated area . The employer must protect employees on slaughtering facility platforms § 191 0.28(b)(14)(i) falling 4 feet or more by using: (A) Guardrail systems; or (B) Travel restraint systems. The employer must protect employees from fall hazards on surfaces not §1910.28(b)(15) otherwise addressed through guardrails, safety net systems, or personal protection systems. The employer must inspect top rails or mid rails made of manila or §1910.29(b)(15) synthetic rope to ensure the rope continues to meet strength requirements Employers must determine, through observation of actual climbing §191 0.29(h)(1) activities or by physical examination, that each employee who climbs a fixed ladder in outdoor advertising operations is physically capable of performing the assigned duties. §1910.29(h)(2) Employers must train, and retrain as necessary, employees to safely climb fixed ladders in outdoor advertising operations. The employer must provide training for each employee who uses personal fall protection systems or who requires training as specified §1910.30(a) elsewhere in the standard before exposing the employees to fall hazards. The employer must train each employee on the proper: care, inspection, storage, and use of equipment covered by the standard before the §1910.30(b) employee uses the equipment such as dockboards, rope descent systems, and designated areas. The employer must retrain an employee when the employer has reason §191 0.30(c) to believe that the employee does not have the understanding and skills required by paragraphs (a) and (b) of §1910.30. The employer must conduct a hazard assessment of the workplace to determine the need for personal fall protection equipment; select, and have affected employees use, the requisite personal fall protection equipment; communicate the selection decisions to each affected employee; select equipment that fits the affected employees properly; and verify in writing that the hazard assessment was performed. VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 PO 00000 Frm 00326 Fmt 4701 Sfmt 4725 E:\FR\FM\18NOR7.SGM 18NOR7 ER18NO16.219</GPH> srobinson on DSK5SPTVN1PROD with RULES6 §1910. 132(d) srobinson on DSK5SPTVN1PROD with RULES6 Finally, three requirements in the standard specify that employers must provide training in accordance with § 1910.30 or the equivalent: • § 1910.27(b)(2)(iii): Rope descent systems; • § 1910.28(b)(1)(ii)(C): Unprotected sides and edges; and • § 1910.28(b)(4)(ii)(C): Dockboards. The costs for § 1910.30 include the costs for the three paragraphs listed above. In the following subsection, organized by regulatory provision, OSHA discusses the potential cost implications of the new requirements. OSHA described earlier in this cost analysis final changes to the existing standard that likely will result in little or no costs; OSHA does not address these changes in the discussion below. General Requirements (§ 1910.22) § 1910.22(b). This provision specifies general requirements, one of which is that employers must ensure that the walking-working surface has the strength to support employees safely. From the standpoint of compliance costs, OSHA believes that employers can meet this requirement by performing a 5- to 10-minute inspection of the surface or reviewing engineering diagrams of the structure. In rare circumstances, an employer might need to spend 15 to 30 minutes determining if the work can proceed. OSHA discusses the costs for this provision later in this subsection in connection with the duty to inspect walkingworking surfaces as part of the general requirements specified under § 1910.22(d) (see ‘‘Cost estimates’’ below). § 1910.22(c). The employer must provide employees with, and ensure that they use, a safe means of access to, and egress from, one walking-working surface to another. The language in existing § 1910.22(b) specifies that VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 employers must keep aisles and passageways clear, in good repair, and with no obstruction across or in the aisles that could create a hazard to employees. For the PEA, OSHA generalized the terms ‘‘aisles’’ and ‘‘passageways’’ in proposed § 1910.22(c) to cover all means of access and egress. The terminology in the proposed rule was consistent with that in a National Fire Protection Association consensus standard (NFPA 101). Thus, OSHA assigned no costs to proposed § 1910.22(c) in the PEA and, with no comment in the record objecting to that decision, OSHA assigned no costs to § 1910.22(c) in this FEA. § 1910.22(d). This new provision sets forth requirements for the employer to inspect regularly and as necessary, and maintain in a safe condition, walkingworking surfaces; guard hazardous conditions to prevent employee use until the employer corrects or repairs the hazard; and have a qualified person inspect perform or supervise any correction or repair work that involves the structural integrity of a walkingworking surface. OSHA considered the costs for these safe work practices below under ‘‘Cost estimates’’ (for the duty to have fall protection; § 1910.28). Ladders (§ 1910.23) § 1910.23(a). This paragraph specifying the application final standard covers all ladders, except when the ladder is used in emergency operations such as firefighting, rescue, and tactical law enforcement operations, or training for these operations or designed into or is an integral part of machines or equipment. Special wood ladders specifically excluded in the existing standard, including fruit picker’s ladders, combination step and extension ladders, stockroom step ladders, aisleway step ladders, shelf ladders, and library ladders are now included under the final standard. In the PEA, OSHA PO 00000 Frm 00327 Fmt 4701 Sfmt 4700 82819 assumed that these ladders met consensus standards for wooden ladders (see Table V–16) and, therefore, OSHA expected that employers would incur no costs with the expanded application. After reviewing the record, OSHA reached the same conclusion for this FEA. Final § 1910.23(b)(4) specifies a minimum clear rung, step, or cleat width of 11.5 inches for portable ladders and 16 inches for fixed ladders; thus, the distance from the centerline to the inside edge of the ladder ranges from roughly 6 to 8 inches. Adding the existing requirement of 2.5 inches from the nearest edge of the ladder to the nearest edge of the structure or equipment to the 6- to 8-inch centerline width required by the final standard results in a step-across width of 8.5 to 10.5 inches for the purposes of the final standard. Thus, any fixed ladder that meets the existing requirements also meets the final requirements. OSHA assigned no costs to this paragraph in the PEA. Therefore, absent comment by the public or any other evidence in the record that would alter this preliminary assessment, the Agency assigned no costs for this paragraph in this FEA. § 1910.23(b)(4)(iii). This paragraph concerns rolling ladders in communications centers, which OSHA moved to this final rule from existing § 1910.268(h)(5), Telecommunications. Thus, as this is not a new requirement, it has no costs. § 1910.23(b)(4)(iv). This paragraph is a new requirement that addresses the minimum clear width for stepstools, which OSHA defines as a type of portable ladder (§ 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, the Agency E:\FR\FM\18NOR7.SGM 18NOR7 ER18NO16.220</GPH> Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations srobinson on DSK5SPTVN1PROD with RULES6 82820 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 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). OSHA assigned no costs to this paragraph in the PEA, and absent comment by the public or any other evidence in the record that would alter this preliminary assessment, the Agency assigned no costs for this paragraph in this FEA. § 1910.23(b)(9). Both the existing and proposed standards had a requirement to inspect ladders before use. In the PEA, OSHA determined that the inspection frequency would not increase under the proposed standard. Therefore, OSHA concluded that employers would incur no additional costs associated with this requirement and, after reviewing the record following publication of the NPRM, reached the same conclusion for this FEA. § 1910.23(b)(11)–(13); § 1910.23(c)(5) and (6) and (9)–(11). These eight paragraphs include instructions to employees on the proper use of ladders. Final § 1910.23(c)(5) prohibits the use of single rail ladders, which OSHA finds is a training requirement. The wide availability of permitted ladders means that there are no equipment costs associated with this prohibition. In the PEA, OSHA also concluded that training would cover the other six provisions, and reached the same conclusion for this FEA. OSHA considered training costs below under ‘‘Cost estimates.’’ § 1910.23(c)(12) and (13). These provisions state that employers are not to tie or fasten ladders and ladder sections together to provide added length unless the design of the ladders permits such use, nor are employers to place ladders on boxes, barrels, or other unstable bases to obtain additional height. These provisions are essentially identical to current paragraphs §§ 1910.25(d)(2)(v) and 1910.26(c)(3)(vi), which specify that neither wood nor metal portable ladders may be spliced, tied, or fastened together or elevated on unstable surfaces to create a longer section or higher reach unless the manufacturer has designed the equipment for such a purpose. These provisions, both in the existing and final standards, might cause employers to incur a cost if it is necessary to purchase longer ladders, or ladders that they can fasten together. During the comment period, OSHA received no data estimating the frequency of such occurrences but, presumably, they are rare. Thus, OSHA did not assign a cost to these paragraphs in this final analysis. VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 § 1910.23(d)(1). As proposed, fixed ladders installed 90 days after the effective date of the final standard must be capable of supporting two live loads of at least 250 pounds each, additional concentrated loads of 250 pounds each, plus anticipated loads caused by ice build-up and other conditions. Each rung must be capable of supporting at least a single concentrated load of 250 pounds. The language in this proposed requirement reflected the consensus standard in ANSI A14.3–2002. The language in the existing standard, however, specifies a single concentrated load of 200 pounds. As discussed earlier in this preamble, OSHA removed paragraph (d)(2) of the proposed rule from the final rule because OSHA believes that the performance criteria specified in final § 1910.23(d)(1) provide an adequate level of safety for employees. Therefore, because paragraph (d)(1) reflects industry practice as documented in ANSI A14.3–2002, there are no costs associated with this provision. § 1910.23(d)(12)(i). This final provision requires that employers measure ‘‘step-across distance’’ from the centerline of the steps or rungs of a fixed ladder. The existing definition measures step-across distance from the nearest edge of the ladder to the nearest edge of the structure or equipment. The minimum distance under the final standard is 7 inches, and under the existing standard it is 2.5 inches; the maximum distance in the final standard is 12 inches, identical to the current standard. OSHA assigned no costs to this paragraph in the PEA and, although the minimum step-across distance in the proposed standard differed significantly from that in the current standard, no commenters objected to the proposed expansion in minimum step-across distance. Therefore, OSHA assigned no costs to this provision in this FEA. § 1910.23(d)(12)(ii). The final standard specifies that the step-across distance from the centerline of the steps or rungs of a fixed ladder to the access point of the platform edge for side-step ladders must be not less than 15 and not more than 20 inches. Based on Figure D–10 in the existing standard, the maximum space from the edge of the ladder to the platform (i.e., access point) is 12 inches. As noted in the previous paragraph, the centerline width for a fixed ladder ranges from roughly 6 to 8 inches. The total step-across distance under the existing standard ranges from 18 to 20 inches. Thus, a fixed ladder that meets the existing requirements also meets the final requirements. Therefore, OSHA assigned no costs to this paragraph in the PEA and OSHA PO 00000 Frm 00328 Fmt 4701 Sfmt 4700 assigned no costs to this provision in this FEA. § 1910.23(e). Paragraph (e)(1)(viii) (which impede or prohibit moving occupied mobile ladder stands and platforms) are the only paragraphs in this provision that do not have a corresponding requirement in a national consensus standard. However, these are work practice requirements that employers can meet through ladder safety training and enforcement. See the subsection titled ‘‘Cost estimates’’ below. All other provisions in § 1910.23(e) meet the national consensus standard in the ANSI A14 series. An analysis of fiscal year 2005 OSHA inspection data for violations of existing subpart D indicate that the failure to provide safe ladders is low (e.g., 0.2 percent of the violations were for portable wood ladders, 0.4 percent were for metal ladders, and 0.8 percent were for fixed ladders). Based on these data, OSHA infers that there is nearly 100 percent compliance with the provisions of the current consensus standards. Therefore, OSHA assigned no costs for equipment upgrades required by these paragraphs. However, OSHA assigned costs for the time it would take to ensure new ladders meet the technical specifications found in § 1910.23(e); see ‘‘Cost estimates’’ below. Step Bolts and Manhole Steps (§ 1910.24) The requirements for step bolts are new to subpart D. In the preliminary regulatory impact analysis for the 1990 proposed rule, OSHA noted, ‘‘Manufactured products, such as ladders, step bolts, manhole steps . . . generally meet or exceed proposed OSHA specifications’’ (OSHA, 1990a). A 2003 OSHA interpretation document comments that OSHA believes that the IEEE 1307–1996 consensus standard, in most cases, prevents or eliminates serious hazards (OSHA, 2003a). IEEE 1307–1996 defines ‘‘failure’’ in a step bolt as occurring when it is bent more than 15 degrees below the horizontal, and § 1910.24(a)(9) in the final standard for subpart D mirrors that definition. Because IEEE revised the standard in 2004, OSHA, in the most recent PEA for subparts D and I, assumed that industry was using the more up-to-date consensus standard. For this FEA, OSHA continues to assume that industry is complying with the 2004 IEEE standard. § 1910.24(a)(1). This provision reads, ‘‘[The employer must ensure:] Each step bolt installed on or after January 17, 2017] in an environment where corrosion may occur is constructed of, E:\FR\FM\18NOR7.SGM 18NOR7 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations or coated with, material that protects against corrosion.’’ The national consensus standard applicable to this requirement is ASTM A394–08, Specification for Steel Transmission Tower Bolts, Zinc-Coated and Bare. The appendix to the consensus standard notes that the purchaser shall specify the dimensions of ladder bolts, step bolts, and equipment-support bolts. The ASTM standard describes three types of bolts covered by the standard: • Type 0: Hot-dip, zinc-coated bolts made of low or medium carbon steel (ASTM 394–08, Section 1.1.1); • Type 1: Hot-dip, zinc-coated bolts made of medium carbon steel, quenched and tempered (ASTM 394–08, Section 1.1.2); and • Type 3: Bare (uncoated), quenched and tempered bolts made of weathering steel (ASTM 394–08, Section 1.1.4).125 Appendix A.2 of the consensus standard mentions that bolts should be Type 0 unless agreed upon by the manufacturer and purchaser. That is, the default condition is to use zinccoated bolts; therefore, such bolts would meet the OSHA requirement for corrosion resistance. Presumably, the use of any other bolt type means that the manufacturer and purchaser agreed that the bolt is appropriate for the intended environment and use. Since manufacturers of step bolts are unlikely to make non-compliant step bolts, OSHA assigned no costs to § 1910.24(a)(1) in the PEA and also assigned no cost to this provision in this FEA. § 1910.24(a)(6). This provision reads, ‘‘[The employer must ensure:] Each step bolt installed before January 17, 2017 is capable of supporting its maximum intended load.’’ In the final standard, OSHA revised the proposed text by reducing the implementation period after the publication date of the final standard from 90 days to 60 days, a srobinson on DSK5SPTVN1PROD with RULES6 125 ATSM removed type 2 bolts from the standard in 2005. VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 change that OSHA believes will not impose significant costs on employers. The requirement that a step bolt must be capable of supporting its maximum intended load is consistent with IEEE 1307–2004, Standard for Fall Protection for Utility Work. Section 9.1.1.1(d) in that standard reads: Step bolts shall [b]e capable of supporting the intended workload [as defined for the application specified by the appropriate ANSI standard(s)], but in no case shall the minimum design live load be less than a simple concentrated load of 271 kg (598.4 lb) applied 51 mm (2 inches) from the inside face of the step bolt head. Therefore, OSHA assigned no costs to this provision in the PEA and, after considering all factors associated with this provision, did not alter this estimation for this FEA. § 1910.24(a)(7). This paragraph requires that step bolts installed on or after 60 days after publication of the final rule be capable of supporting four times their maximum intended load. As discussed in the preamble to the proposed rule, OSHA considered a 5⁄8-inch bolt as meeting this requirement, and bolts of that size are readily available. Therefore, in the PEA OSHA determined that there would be no incremental costs associated with this provision. In prehearing comments, The Southern Company questioned OSHA’s proposed load criterion, stating, ‘‘Instead of using the four times the maximum intended load, OSHA should consider using the criteria of the NESC or IEEE 1307’’ (Ex. 192, p.3). OSHA noted earlier in the summary and explanation for this paragraph that, under this performance-based final rule, employers may use a range of methodologies, including criteria found in consensus standards, to determine the load capabilities of step bolts. Therefore, since bolt manufacturers are producing bolts that meet these design criteria, OSHA believes that there will be little, if any, additional cost burden PO 00000 Frm 00329 Fmt 4701 Sfmt 4700 82821 on employers who must use step bolts that meet OSHA’s load requirement, and, therefore, assigned no compliance costs to this provision in the final rule. § 1910.24(a)(8) and § 1910.24(b)(3). Under these paragraphs of the final standard, employers must inspect step bolts and manhole steps at the start of each workshift. OSHA considered inspection costs below under ‘‘Cost estimates.’’ § 1910.24(b). Table V–19 summarizes the language in the final standard for manhole steps, along with the corresponding section of ASTM C478– 13. The following three requirements in this provision exceed the requirements specified in a national consensus standard for steps in precast concrete manhole sections: • Manhole steps must have slipresistant surfaces such as corrugated, knurled, or dimpled surfaces; • Manhole steps must be constructed of, or coated with, material that protects against corrosion in an environment where corrosion may occur; and • The design of manhole steps must prevent the employee’s foot from slipping or sliding off the end of the manhole step. ASTM C478–13 permits the use of uncoated or untreated ferrous steps as long as they are at least 1 inch in crosssection, but is silent with regard to a slip-resistant surface or design. Because the final requirements appear to exceed the requirements in the consensus standard, the PEA determined that there would be incremental costs for slipresistant and corrosion-resistant surfaces when employers rebuild or replace a manhole section. Moreover, the specifications in the final standard, unlike the consensus standard, define when a step fails while still in the manhole; thus, as noted in the PEA, there would also be step replacement costs associated with this provision. OSHA discusses these costs below under ‘‘Cost estimates.’’ E:\FR\FM\18NOR7.SGM 18NOR7 82822 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations Table V-19 Manhole Steps Provision Related ASTM C478-13 Language The employer must ensure that manhole steps are capable of §1910.24(b)(1) §1910.24(b)(2) 16.6.1.3 supporting their maximum intended load. The employer must ensure that manhole steps installed on or after January 17, 2017. Are provided with slip-resistant surfaces such as corrugated, §1910.24(b)(2)(i) knurled, or dimpled surfaces. §191 0.24(b)(2)(ii) Are constructed of, or coated with, material that protects against 16.5.1 corrosion in an environment where corrosion may occur. §191 0.24(b)(2)(iii) Have a minimum clear step width of 10 inches (25 em). 16.5.2 Are uniformly spaced at a vertical distance of not more than 16 inches (41 em) apart, measured center to center between steps. §191 0.24(b)(2)(iv) The spacing from the entry and exit surface to the first manhole 16.4.1 step may differ from the spacing between the other steps. Have a minimum perpendicular distance between the centerline of §191 0.24(b)(2)(v) the manhole step to the nearest permanent object in back of the 16.5.3126 step of at least 4.5 inches (11 em). §191 0.24(b)(2)(vi) Are designed, constructed, and maintained to prevent the employee's foot from slipping or sliding off the end. The employer must ensure that manhole steps are inspected §1910.24(b)(3) before initial use during a workshift, and is maintained in accordance with §1910.22. (a) Empty cells in this column indicate that no comparable ASTM C478-13 provision exists. 126 ASTM C478–13, Section 16.5.3, specifies that the rung or cleat shall project a uniform clear VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 distance of four inches minimum ±1⁄4 in. from the wall to the embedment side of the rung. The OSHA distance in the final standard measures from the centerline of the manhole step. Thus, if a step is at PO 00000 Frm 00330 Fmt 4701 Sfmt 4700 least an inch wide, a step that meets the ASTM 4inch requirement also would meet the OSHA 4.5-inch requirement. E:\FR\FM\18NOR7.SGM 18NOR7 ER18NO16.221</GPH> srobinson on DSK5SPTVN1PROD with RULES6 Source: U.S. Department of Labor, OSHA, Directorate of Standards and Guidance. Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations Stairways (§ 1910.25) § 1910.25(b)(5). The existing standard states that employers must provide a platform for doors or gates that open directly onto a stairway, and the swing of the door must not reduce the effective width to less than 20 inches. In the final standard, platforms installed before 60 days after the publication date of the final rule need only comply with the existing requirements; therefore, there are no retrofit costs to employers. For platforms installed on or after 60 days from the publication date of the final rule, the effective width increases to 22 inches.127 Employers will have an incremental cost when replacing a platform with one that has two inches of additional clearance. Commenting on the proposed revision to this paragraph, Ameren Corporation expressed concerned about the proposed 90-day grandfathering timeline: srobinson on DSK5SPTVN1PROD with RULES6 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, p. 6.) In response, OSHA recognizes that, as Ameren indicates, some large projects may require a lead-time longer than 60 to 90 days. However, OSHA also believes that most, if not all, manufacturers of such platforms should be familiar with the associated consensus standard, ANSI A1264.1– 2007, and, therefore, produce platforms now that meet the 22-inch clearance requirement. OSHA believes that most contracts, as a usual and customary practice, already incorporate into the cost of the product the minimal increase in material cost borne by the employer to meet the clearance specification. For the reasons given above under the subsection titled ‘‘Compliance with national consensus standards,’’ OSHA estimated no incremental costs for this provision (§ 1910.25(a)(6)) in the PEA and, for these same reasons, did not take incremental costs for the provision (§ 1910.25(b)(5)) in the final standard. § 1910.25(d). Existing § 1910.24(b) does not permit spiral stairways except under special conditions. Employers cannot use spiral stairs under final § 1910.25(d) unless the stairs meets 127 The 22-inch clearance requirement for new structures matches ANSI A1264, Section 6.11. VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 specific design specifications. Therefore, employers must modify or replace existing spiral staircases that do not meet these requirements. However, spiral staircases are likely to be relatively rare in commercial or industrial settings given that they are exceptions to the existing rule. Thus, OSHA did not assign costs to § 1910.25(d) in the PEA. Given that no commenters objected to this preliminary cost estimate, OSHA is estimating no costs for this paragraph in this FEA. § 1910.25(e). OSHA developed this paragraph in response to a comment made to an OMB-initiated, governmentwide effort to reform regulation in the U.S. manufacturing sector. This comment, submitted by the Copper and Brass Fabricators Council, stated that OSHA required the use of fixed stairs when ship stairs or spiral stairways would be safer (OMB, 2005). Employers typically install ship stairs with slopes of 50 degrees or greater; however, the existing standard for fixed stairs addresses stairs installed at angles between 30 and 50 degrees, but does not specifically address ship stairs. Recently, OSHA issued an interpretation stating that if ship stairs conformed to the 1990 proposed standard for subpart D,128 the Agency would consider slopes up to 70 degrees to be de minimis violation of the existing standard 129 (OSHA, 2006b and 2006c). OSHA believes that most existing ships stairs conform to the 1990 proposed standard, and therefore the Agency assigned no costs to § 1910.25(e) in the PEA, nor did it assign costs to § 1910.25(e) in this FEA. § 1910.25(f). The existing standard does not expressly mention alternating tread-type (tread) stairs. A letter of interpretation from OSHA to a manufacturer of alternating tread stairs concluded that these stairs are safe (OSHA, 1981). NFPA 101, Section 7.2.11 (NFPA, 2012) also addresses alternating tread stairs. As discussed in the PEA, any alternating tread stair that meets the requirements of NFPA 101 would also meet the requirements in § 1910.25(f); accordingly, the PEA determined that this provisions does not impose a new cost burden on 128 The 1990 proposed standard allowed ship stairs that are designed with slopes between 50 degrees and 70 degrees from the horizontal; have open risers; have treads that are four inches (10 cm) in depth, 18 inches (46 cm) in width, and a vertical rise between tread surfaces of six and one-half inches to 12 inches (16 cm to 30 cm); and have handrails that are installed on both sides of the ship stairs and meet § 1910.28 (within the existing standard). (55 FR 13400.) 129 See OSHA’s Field Operation Manual: https:// www.osha.gov/OshDoc/Directive_pdf/CPL_02-00148.pdf. PO 00000 Frm 00331 Fmt 4701 Sfmt 4700 82823 employers. Thus, in this FEA, OSHA did not assign costs to this provision. Dockboards (§ 1910.26) § 1910.26(b). The text for this provision states that the employer must ensure dockboards put into initial service on or after January 17, 2017 are designed, constructed, and maintained to prevent transfer vehicles from running off the dockboard edge. Exception: When the employer demonstrates there is no hazard of transfer vehicles running off the dockboard edge, the employer may use dockboards that do not have run-off protection. The definition of a dockboard in ANSI MH30.2–2005, Section 2.2, contains the language ‘‘as well as providing a run-off guard, or curb,’’ similar to the requirement in this final provision. OSHA believes, as it stated in the PEA, that nearly all dockboards manufactured currently conform to the ANSI standard; however, should an employer encounter an older, out-of-compliance dockboard, OSHA believes that the costs for them to comply with the final standard will be minimal. Therefore, in the absence of comment on this analysis, OSHA is not assigning costs in this FEA for final § 1910.26(b). § 1910.26(e). The text for this provision reads, ‘‘[The employer must ensure:] Portable dockboards are equipped with handholds or other means to permit safe handling of dockboards.’’ The requirement in final § 1910.26(e) that portable dockboards have handholds or other means to permit safe handling is essentially the same requirement specified in existing § 1910.30(a)(4), which OSHA based on ANSI/ASME B56.1, American Society of Mechanical Engineers, Safety Standard for Low Lift and High Lift Trucks. Therefore, OSHA believes that commercial dockboards likely come equipped with handholds and that any additional costs associated with this provision will be minimal. Thus, OSHA in this FEA did not assign costs for final § 1910.26(e). Scaffolds and Rope Descent Systems (§ 1910.27) § 1910.27(a). This paragraph extends the construction industry requirements for scaffolds (except rope descent systems) to general industry. OSHA believes that many general industry employers who use scaffolds also perform work covered by the construction industry standards and are already familiar, and in compliance, with the construction industry scaffold standards. Therefore, linking the final standard for scaffolds in general E:\FR\FM\18NOR7.SGM 18NOR7 82824 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations industry to the scaffold requirements in 29 CFR part 1926 resolves any inconsistencies between the scaffold requirements for the construction and general industries. OSHA received no comment on this analysis in the PEA. Thus, as in the PEA, OSHA attributed no costs to this paragraph in this FEA. § 1910.27(b)(1). When employers use rope descent systems (RDS; also known as controlled-descent devices) for building maintenance, the final standard requires that the building owner or its representative provide to the building-maintenance contractor (the employer) written documentation of identified, tested, certified, and maintained anchorages capable of supporting at least 5,000 pounds (268 kg), in any direction, for each employee attached. As OSHA noted in the PEA, it would appear from the documentation associated with the industry consensus standard, ANSI/IWCA I–14.1, that the International Window Cleaning Association (IWCA) customarily finds from information its members receive that many buildings lack the required anchorages. A key provision of that consensus standard is a written work plan (Section 1.7), and the IWCA Web site urges window cleaning enterprises to develop written plans and coordinate their operations with building owners. Accordingly, the IWCA Web site states: srobinson on DSK5SPTVN1PROD with RULES6 The intent of the [IWCA I–14.1] standard was not to stop window cleaning, it was to improve the level of safety of our industry by having a shared responsibility between the window cleaner and the building owner. If you have outdated equipment or are using equipment that doesn’t meet the standard, phase it out. If you have buildings you’re working on that are dangerous and are using creative rigging, phase them out and work with the building owners toward compliance. (IWCA, 2014.) ANSI/IWCA I–14.1, Section 17, lists options for roof support equipment, including: • Parapets, cornices, and building anchorages (Section 17.1); • Davits and davit fixtures (a cranelike structure, Section 17.2); • Sockets (Section 17.3); • Tiebacks (Section 17.4); • Counterweighted outriggers (Section 17.5); • Parapet clamps and cornice hooks (Section 17.6); and • Overhead monorail tracks and trolleys (Section 17.7); Several of these options, such as counterweighted outriggers, are transportable and likely supplied by the contractor. Thus, the work plan delineates how the employer is to perform the work using a mix of contractor and property-owner VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 equipment. The consensus standard provides several acceptable options for roof support equipment, and specifies that both the contractor and property owner concur with the work plan, and that the work plan describe how the contractor will perform the job safely. For the PEA, OSHA presumed that voluntary compliance with the consensus standard is likely to be high. However, as described in detail below, comments in the record indicate that industry compliance with the provision for sound anchorages varies considerably. In the PEA, OSHA assigned no costs for equipment; however, the Agency did estimate costs for inspections and certification that anchorages meet requirements. OSHA discusses these costs below in the subsection titled ‘‘Cost estimates.’’ § 1910.27(b)(2)(i). Rope descent systems are an alternative to powered platforms. The final rule states that employers cannot use rope descent systems at heights greater than 300 feet unless they demonstrate that it is not feasible to access such heights by any other means or that those means pose a greater hazard to employees than using a rope descent system. The wording of the final rule is consistent with the industry consensus standard, ANSI/ IWCA I–14.1, 2001. Accordingly, both the IWCA consensus standard and the final OSHA standard (1) prohibit the use of rope descent systems for descents exceeding 300 feet, and (2) contain an exclusion clause, which, in the case of the IWCA standard, provides that the requirement apply unless ‘‘access cannot safely and practicably be obtained by other means.’’ Because both the IWCA and OSHA standards contain a similar exclusion clause, the OSHA requirement is no more restrictive than the consensus standard. Since this is a work-practice as opposed to an equipment-specification requirement, incremental costs are attributable to the OSHA standard only to the extent that employers would not voluntarily comply with the IWCA standard and to the extent that employers provide excess-risk documentation to OSHA. Employers, therefore, would incur costs from this provision only when (1) a building is 300 feet tall or higher, and (2) there is an alternative to the rope descent system that is feasible and at least as safe as an RDS. For the PEA, ERG examined a database developed by the Council on Tall Buildings and Urban Habitat (CTBUH) and identified slightly more than 1,900 buildings in the United States that are 300 feet (91.7 m) tall or higher (CTBUH, 2006). Over 25 percent of these buildings are in New York City, PO 00000 Frm 00332 Fmt 4701 Sfmt 4700 where state law does not allow the use of rope descent systems for window cleaning (DiChacho, 2006). Accordingly, ERG derived an estimate of 1,500 potentially affected buildings nationwide (ERG, 2007). For the PEA, OSHA assumed that some of these 1,500 buildings have permanently installed power platforms for access to the exterior of the building, and further assumed that using a platform would be less expensive than setting up an RDS. For this FEA, OSHA examined the CTBUH database described above and determined that, currently: Approximately 1,960 existing buildings are 300 feet or higher; of that total, roughly 600 buildings with a height of 300 feet or greater are in New York City; and two states—California and Minnesota—have statutes that limit the RDS descent distance to, respectively, 130 feet and 300 feet (CA–DIR, 2012; Minnesota, 2012). After subtracting the number of buildings in those three states from the total, OSHA conservatively estimates that the 300foot limit specified by this final standard would affect 1,300 buildings with a height of 300 feet or greater.130 The final set of buildings for which § 1910.27(b)(2) could result in costs are those buildings for which employers use RDS due to technical factors specific to a building’s history, architecture, or style of operation. For example, to wash regularly the windows of a tall building with many sharp angles or tiered levels, management may find it cost-effective to contract for RDS rather than powered platforms. OSHA expects that there will be additional costs to the building owners in these situations because of factors discussed below under ‘‘Cost estimates.’’ § 1910.27(b)(2)(ii)–(xiii). With one exception, these paragraphs in the final standard codify safety provisions presented in the 1991 memorandum to OSHA’s Regional Administrators, which are similar to the requirements now specified in the national consensus standard, ANSI/IWCA I–14.1 (OSHA, 1991b). The safety provisions in this ANSI standard that mirror the OSHA memo are: • Training employees in the use of the equipment; 130 Valcourt Building Services estimated that 2.6 percent of its window washing operations involve buildings that are 300 feet or greater in height (Ex. 358). If OSHA applies that percentage to the number of all commercial buildings subject to the suspended scaffolds standard and, therefore, potentially affected by the 300-foot limit (DOE, 2006), the resulting estimate is significantly greater than the CTBUH estimate. This finding suggests that Valcourt’s operations involve an unusually large proportion of buildings that are taller than 300 feet. E:\FR\FM\18NOR7.SGM 18NOR7 srobinson on DSK5SPTVN1PROD with RULES6 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations • Inspecting the equipment each day before use and removing of damaged equipment from service; • Using proper rigging, including sound anchorages and tiebacks, in all cases, with particular emphasis on providing tiebacks when using counterweights, cornice hooks, or similar non-permanent anchorage systems; • Using a separate personal fall arrest system; • When installing lines, using knots, swages, or eye splices when rigging RDS that are capable of sustaining a minimum tensile load of 5,000 pounds; • Providing prompt rescue of employees; • Effectively padding ropes where they contact edges of a building, anchorage, obstructions, or other surfaces that might cut or weaken the rope; and • Providing stabilization at the work location when descents are greater than 130 feet. A provision in the OSHA memo not duplicated in the ANSI standard is the requirement in final § 1910.27(2)(b)(xi), which specifies that no employee may use an RDS under hazardous weather conditions, such as storms or gusty or excessive wind. OSHA estimates that this new provision is not likely to present a significant burden on employers because of the relatively high levels of current compliance with the provision (see, for example, Ex. 329 (1/ 19/2011), pp. 213, 346, 411–412) and the Agency’s expectation, based on comments in the record (Ex. 329 (1/19/ 2011), pp. 235–236, 361), that employers will respond to wind conditions by adjusting window cleaning operations to minimize lost revenue and added project costs (for example, scheduling window cleaning operations on short buildings when weather conditions would create a hazard for window cleaning operations on tall buildings). The proposed regulatory text updated the 1991 OSHA memo by using terminology such as ‘‘prompt rescue’’ rather than ‘‘rescue’’ and ‘‘harness’’ rather than ‘‘body belt,’’ but, as it stated in the PEA, OSHA did not believe that these revision would increase compliance costs. Other revisions to the 1991 OSHA memo made in the proposal, and now in the final standard, include the addition of three safety provisions to the original list of safety provisions described above. These three provisions include: • Using equipment in accordance with the instructions, warnings, and design limitations set by manufacturers VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 or qualified persons (final § 1910.27(2)(b)(ii)); • Securing equipment by a tool lanyard or similar method to prevent equipment from falling (final § 1910.27(2)(b)(xii)); and • Protecting suspension ropes from exposure to open flames, hot work, corrosive chemicals, or other destructive conditions (final § 1910.27(2)(b)(xiii)). In the PEA, OSHA stated that the eight safety provisions listed in the 1991 OSHA memo, the provision dealing with wind and other weather hazards, and the additional three provisions described in the previous paragraph, would not impose significant costs on employers. None of the comments submitted to the proposal provided any evidence contradicting this analysis. OSHA determined in the PEA that the training requirements in proposed § 1910.27(b)(2)(ii), now codified as final § 1910.27(b)(2)(iii), imposed costs on employers. Final § 1910.27(b)(2)(iii) specifies that employers provide training in accordance with § 1910.30. Therefore, OSHA assigned the costs for training beyond that noted in its 1991 memorandum to § 1910.30. OSHA discusses these costs under ‘‘Cost estimates’’ below. The Agency identified two additional provisions, final § 1910.27(b)(2)(xii) and (b)(2)(xiii), in the PEA as having potential costs.131 The requirement specified by final § 1910.27(b)(2)(xii) to secure equipment is consistent with consensus standard IWCA I–14.1–2001, Section 3.10. Thus, OSHA did not assign incremental costs to this requirement in either the PEA or this FEA. The requirement in final § 1910.27(b)(2)(xiii) that employers protect suspension ropes from exposure to open flames, hot work, corrosive chemicals, or other destructive conditions, is an extension of the requirement to protect the integrity of the ropes specified in OSHA’s 1991 OSHA memorandum. OSHA attributed the costs for meeting this requirement under the training costs estimated in § 1910.30, and described below under ‘‘Cost estimates.’’ Duty To Have Fall Protection and Falling Object Protection (§ 1910.28) The revised regulatory text for final § 1910.28 consolidates the fall protection requirements in the existing rule, with two major revisions. First, comments submitted in response to the reopening of the rule in 2003 recommended that the fall protection 131 In the proposal, these two provisions are § 1910.27(b)(2)(x) and (xi). PO 00000 Frm 00333 Fmt 4701 Sfmt 4700 82825 requirements in subpart D be consistent with the requirements in subpart M of the construction standards. The final text for § 1910.28 makes the general industry fall protection requirements consistent with the construction requirements, which may impose additional costs on employers in general industry. In addition, the existing standard does not address the use of restraint systems, designated areas, or safety net systems, nor does the existing standard clarify when employers can use personal fall protection systems. In contrast, the final standard allows employers to choose from various options in providing fall protection, i.e., it is not as restrictive as the existing standard, which primarily requires use of guardrails. In the proposal, OSHA requested public comment on the expenses that employers typically would incur to comply with this requirement. Stakeholders raised concerns about the compliance burden of this provision when conducting routine inspections on roofs. These stakeholders included the Property Casualty Insurers Association of America (Ex. 98), the Massachusetts Institute of Technology (MIT; Ex. 156), the National Roofing Contractors Association (NRCA; Ex. 197), and the U.S. Chamber of Commerce (Ex. 202). MIT’s comments, presented below, are typical of these responses: Under Subpart D—Walking-Working Surfaces, Section 1910.21(a) reads as follows: (a) Scope and application. This subpart applies to all general industry workplaces. It covers all walking-working surfaces unless specifically excluded by individual sections of this subpart. Following paragraph (a), MIT recommends adding the following narrow exception: ‘‘Exception: The provisions of this subpart do not apply when employees are making routine inspections, investigations, or assessments of workplace conditions.’’ Reason for comment: Periodic routine inspections, investigations, and assessments should be allowed on flat roof tops without installing guard rails, designated areas, or fall restraint/arrest systems. Employees engaged in routine inspections, investigations, and assessments of workplace conditions are exposed to fall hazards for very short durations, if at all, since they most likely would be able to accomplish their work without going near the danger zone. Requiring the installation of fall protection systems under such circumstances would expose the employee who installs those systems to falling hazards for a longer time than the person performing an inspection or similar work. As a result, the Proposed Rule could potentially create a greater hazard, rather than reducing a hazard. As stated above, the fall protection exemption anticipates that inspectors likely would be able to accomplish their work without going near the danger zone; yet installing such protections for a short time period would be E:\FR\FM\18NOR7.SGM 18NOR7 82826 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations srobinson on DSK5SPTVN1PROD with RULES6 expensive and time-consuming. If the exception is not included, the Proposed Rule would have a significant impact on EHS personnel checking monitors, researchers inspecting research equipment on roofs, facilities operations investigating roof drains, facilities operations assessments prior to beginning project work, and other similarlysituated employees who regularly conduct such inspections. In addition, individuals who conduct these types of inspections are trained to be very focused on their footing, ever alert, and aware of the hazards associated with falling. Therefore, employees who inspect, investigate, or assess workplace conditions will be more aware of their proximity to an unprotected edge. This proposed exception would be in line with the existing OSHA Construction Standard, 29 CFR 1926.500(a)(1). (Ex. 156.) OSHA notes that final § 1910.28(a)(2)(ii) provides an exemption stating that when employees are making an inspection, investigation, or assessment of workplace conditions prior to the starting work or after completing all work, the employer does not have to provide fall protection unless fall protection systems or equipment meeting the requirements of § 1910.29 have been installed and are available for workers to use for pre-work and postwork inspections, investigations, or assessments. § 1910.28(b)(1). Under this final provision, if a walking-working surface (vertical or horizontal) has an unprotected side or edge that is four feet or more above a lower level, an employer must protect employees from falling by using a guardrail system, safety net system, or personal fall protection system. If the work is on residential roofs and the employer demonstrates that it is infeasible or creates a greater hazard to use a guardrail system, safety net system, or personal fall protection system, then the employer must develop a fall protection plan that meets the requirements of 29 CFR 1926.502(k) and training that meets the requirements of 29 CFR 1926.503(a) and (c). In the existing rule, employers must implement fall protection under the following provisions when the fall hazard is four or more feet: • § 1910.23(b): Wall openings; • § 1910.23(c)(1): Open-sided floors or platforms; and • § 1910.23(c)(2): The open sides of any runway. Thus, there is no change in the height requirement for fall protection between the existing and final rules. OSHA believes that the language and organization for the final rule is less complex than for the existing rule and provides additional flexibility in the methods used for fall protection. The final rule also allows for exceptional VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 conditions. For example, if it is not feasible or creates a greater hazard to install guardrails or other fall protection systems on a residential roof, then the employer does not have to install these systems and must instead develop and implement the requisite fall protection plan, including implementing other control measures to eliminate or reduce fall hazards for workers, and training. As discussed below under ‘‘Cost estimates,’’ OSHA anticipates that the costs for fall protection plans will not exceed the costs for guardrails and fall protection systems and, as demonstrated in employer response to the Construction standard (29 CFR 1926.502(k); 29 CFR 1926.503(a) and (c)), those compliance costs are economically feasible. Comments to the proposal informed OSHA that chimney cleaning exposes workers to fall hazards resulting from work on residential roofs, and that protection from these fall hazards would require additional control measures. OSHA’s analysis of the compliance costs for chimney cleaning, one industry among several industries found in NAICS 56179, Other Services to Buildings and Dwellings, appears below under ‘‘Cost estimates.’’ § 1910.28(b)(2). This final provision requires fall protection in hoist areas when the fall hazard is four feet or greater, and also clarifies the requirements for hoist areas found in existing § 1910.23(b)(1) and (c)(1). Therefore, OSHA assigned no costs to this paragraph in either the PEA or in this FEA. § 1910.28(b)(3). The existing rule requires guarding every hole and skylight floor opening. This final provision specifies that employers must use fall protection when an employee might fall more than four feet through a hole. Thus, the new language harmonizes the fall protection requirement for holes with the requirements for unprotected sides and edges and hoist areas. The new language also permits employers to meet the requirement using covers, guardrail systems, travel restraint systems, or personal fall arrest systems. The final revision to § 1910.28(b)(3) also provides protection for stairway floor holes, ladderway floor holes, and hatchways and chute-floor holes, and updates existing § 1910.23(a) by incorporating the best practices found in industry consensus standards (notably ANSI/ASSE A1264.1–2007). This subparagraph also clarifies application of the provision (e.g., provides an exception for stairways used less than once per day). Furthermore, employers must construct guardrail systems to PO 00000 Frm 00334 Fmt 4701 Sfmt 4700 protect holes in accordance with final § 1910.29, Fall protection criteria. OSHA noted in the PEA that these requirements have been part of an OSHA standard or industry consensus standards for at least 15 years and, therefore, the incremental cost burden to employers would likely be minimal. OSHA could identify no data in the record that contradicted its preliminary finding of minimal cost impact and, therefore, carried the minimal impact estimate forward in this FEA. § 1910.28(b)(4). This final provision requires guardrails or handrails on dockboards to protect an employee from falls of four feet or more. There is an exception for cases when employers use dockboards exclusively for material handling operations performed with motorized equipment. In these cases, neither guardrails nor handrails are necessary if the fall hazard is 10 feet or less and employees received the training specified by § 1910.30. OSHA discusses the costs for installing handrail or guardrail systems for dockboards later in this subsection, and assigned the training costs to § 1910.30 (see ‘‘Cost estimates’’ below). § 1910.28(b)(6). The existing rule § 1910.23(c)(3) requires a standard railing and toe board for walkingworking surfaces above dangerous equipment. This final provision bases the required controls on the potential fall distance. For potential falls of less than four feet onto or into dangerous equipment, the employer can cover or guard the dangerous equipment to eliminate the hazard. For potential falls of four feet or more, the employer must use guardrail systems, safety net systems, travel restraint systems, or personal fall arrest systems to protect employees from the fall hazard. For both the PEA and this FEA, OSHA assumed that employers already implemented the required controls under the existing standard using the least-cost method; therefore, OSHA assigned no costs to this paragraph in either the PEA or this FEA. § 1910.28(b)(7). For openings, the final standard limits the need for fall protection to cases for which the inside bottom edge of the opening is less than 39 inches above a walking-working surface and the bottom edge of the outside of the opening is four feet (1.2 m) or more above a lower level. The employer can use a guardrail system, a safety net system, a travel restraint system, or a personal fall arrest system to meet this requirement. In the PEA, OSHA stated that it believed that current industry practice was to protect employees exposed to openings; therefore, the Agency estimated no costs E:\FR\FM\18NOR7.SGM 18NOR7 srobinson on DSK5SPTVN1PROD with RULES6 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations for this paragraph in the PEA. OSHA received no comments in the record that contradicted this preliminary assessment and, therefore, assigned no costs to paragraph (b)(7) in this FEA. § 1910.28(b)(8). Existing § 1910.21(a)(2) classified pits, in general, as floor openings. In this final provision, pits that are 4 feet and less than 10 feet in depth used for repair, service, or assembly operations need not have a fall protection system provided employers demarcate, with floor markings, warning lines, stanchions, or some combination thereof, a (minimum) 6-foot perimeter around the pit, limit access to that demarcated area to trained and authorized employees, and post readily visible caution signs. In the PEA, OSHA did not assign incremental costs to paragraph (b)(8) because an employer would only incur costs for caution signs and floor markings if they were less expensive than the fall protection system required under the existing standard. In addition, existing § 1910.145 already requires an employer to post caution signs where needed, and existing § 1910.144 specifies the content of the signs. OSHA assumed that most employers have signs and marking materials readily available and, therefore, assigned no incremental costs to this paragraph in the PEA. There was no evidence submitted to the record to justify revising this preliminary assessment; therefore, OSHA in this FEA estimates that any additional compliance costs associated with this paragraph will be minimal. The final rule provides more than one method to comply with § 1910.28(b)(8). That is, an employer may use a conventional fall protection system or implement specific safe work practices (i.e., marking, stanchions, posting, and limiting access). When the alternative method—the use of safe work practices—is less expensive than the method specified in the existing rule (guardrails), an employer likely would incur lower costs to comply with the paragraph. As stated in the PEA, OSHA concluded that the new provision may reduce costs for some employers; however, OSHA did not quantify the cost savings in the preliminary analysis, nor did it do so in this final analysis. § 1910.28(b)(9). The existing regulatory text specifies landing platforms, cages, wells, or ladder safety devices as means of providing fall protection for fixed ladders. The 1990 proposal for subpart D permitted some workers to climb fixed ladders without the use of ladder safety devices, cages, or wells if they were qualified climbers and met other, specified conditions. In particular, employers could use VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 qualified climbers to climb fixed ladders only if they did so no more than twice a year and it would be a greater hazard to the employee to install the fall protection system than to climb the ladder without fall protection (which OSHA believed rarely occurs). In paragraph (b)(9) and elsewhere in the final standard, OSHA no longer permits employers to use qualified climbers beginning two years after publication of the final rule. In addition, after two years employers must equip new fixed ladders and replacement ladders and ladder sections with ladder safety systems or personal fall arrest systems. However, employers still can meet the fall protection requirement for existing fixed ladders extending more than 24 feet above a lower level by using cages, wells, personal fall arrest systems, and ladder safety systems for 20 years after publication of the final rule; after 20 years, employers must use either personal fall arrest systems or ladder safety systems for fixed ladders. For this FEA, OSHA assigned costs for using ladder safety systems on fixed ladders. OSHA’s describes its analysis of costs for fall protection on fixed ladders below in ‘‘Cost estimates.’’ § 1910.28(b)(10). These final paragraphs address fall hazards in outdoor advertising, also known as billboards. Existing subpart D has no requirements specific to billboards. However, for analytical purposes, the existing fixed ladder requirements cover the fixed ladder portion of a billboard. Existing § 1910.27(d)(1) requires cages or wells for ladders more than 20 feet in length. In the PEA, OSHA assumed that under proposed § 1910.28(b)(10)(i), an employee climbing the fixed ladder portion of a billboard up to 50 feet in length would need to use either a body belt or a body harness with an appropriate 18-inch rest lanyard to tie off to the fixed ladder, and that these additional options, when not already deployed, would be less expensive than cages or wells. Further, proposed § 1910.28(b)(10)(iv) required employers to properly maintain and use any ladder safety system installed on fixed ladders; according to ERG, this requirement is consistent with widespread industry practice (ERG, 2007). Thus, in the PEA, OSHA assigned no incremental compliance costs to these paragraphs. However, OSHA received a comment from the outdoor advertising industry in response to the proposal stating that ladder safety systems are not in widespread use for the initial 50-foot climb (or 65 feet from grade) on fixed ladders connected to billboards (see Exs. 329 (1/18/2011), pp. 143–146; 359, pp.7–8). Therefore, OSHA revised its PO 00000 Frm 00335 Fmt 4701 Sfmt 4700 82827 preliminary analysis in this FEA to indicate that a significant percentage of outdoor advertising employers will need to install ladder safety systems on fixed ladders. OSHA presents its estimate of the costs for those systems below in ‘‘Cost estimates.’’ Final § 1910.28(b)(10)(ii)(A) requires employees in outdoor advertising who climb a fixed ladder be qualified climbers as specified in § 1910.29(h) when the fixed ladder does not come equipped with a cage, well, personal fall arrest system, or a ladder safety system. Therefore, OSHA assigned the costs for this paragraph to § 1910.29(h). In doing so, the Agency conservatively assumed in both the PEA and in this FEA that all employees in NAICS 5418 (Advertising and Related Services) who climb fixed ladders will receive training as qualified climbers (see the discussion for § 1910.29(h) below). OSHA notes that the provision for qualified climbers in outdoor advertising will expire two years after publication of the final rule, at which time employers must use other means and methods of fall protection. The Agency assigned the costs of fall protection for these workers after the second year as initial and ongoing costs (see the discussion below under ‘‘Cost estimates).’’ Final § 1910.28(b)(10)(ii)(B) requires that qualified climbers in outdoor advertising wear a body harness equipped with an 18-inch (46 cm) rest lanyard. Both the proposed rule at paragraph (b)(10)(i) and OSHA’s outdoor advertising directive contain a similar requirement. The lanyard allows workers to tie off to the fixed ladder and rest during the climb. Proposed paragraph (b)(10)(i) and outdoor advertising directive both include a requirement permitting employers to provide, and allow workers to use, a body harness or body belt. However, 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 § 1910.28(b)(10)(ii)(B). This also makes the final provision consistent with OSHA’s construction industry rule, which does not allow body belts to be used for personal fall arrest (§ 1926.502(d)). According to comment from the Outdoor Advertising Association of America (OAAA), OAAA’s training program emphasizes ‘‘the duty to provide fall protection for employees working above 4–6 feet including equipment such as harnesses, lanyards and any supplemental PPE uses.’’ (Ex. 359) Therefore, because the use of harnesses and lanyards is central to the training program of the leading outdoor advertising industry association, OSHA E:\FR\FM\18NOR7.SGM 18NOR7 srobinson on DSK5SPTVN1PROD with RULES6 82828 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations anticipates that there will be no additional costs associated with the requirement in the final standard that qualified climbers be outfitted with full body harnesses. Proposed § 1910.28(b)(10)(vi), now codified as final § 1910.28(b)(10)(ii)(C), specifies that the employee is to have both hands free of tools and material while climbing up or down the ladder. In the PEA, OSHA assigned a cost to this paragraph; in this FEA, the Agency discusses these costs below under ‘‘Cost estimates.’’ Under final § 1910.28(b)(10)(ii)(D), climbers must use an appropriate fall protection system after they reach their work positions. OSHA attributed the cost of these systems to the existing standard for fixed ladders. Thus, the Agency estimated no additional costs for equipment required by this provision in either the PEA or in this FEA. Proposed § 1910.28(b)(10)(iii) required that employers follow inspection procedures for ladder safety systems. Final § 1910.29(i) now delineates the inspection procedures identified in the proposed requirement. OSHA did not specify in the proposed rule the frequency of inspection, but in the PEA assumed that inspections would occur prior to each use. OSHA assigned costs to this paragraph in the PEA, and discusses these costs below under ‘‘Cost estimates’’ in this FEA. Final 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 § 1910.21(b)), includes standard stairs, ship stairs, spiral stairs, and alternating tread-type stairs. As noted earlier in the summary and explanation of the final standard, 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 or stair rail system. The final requirement is consistent with the requirements for stairway landings specified by the existing general industry standard in § 1910.24(h) and the construction standard in § 1926.1052(c)(12). The final provision is also consistent with A1264.1–2007 (Section 7.1), NFPA101–2012 (Sections 7.1.8 and 7.2.2.4.5), and ICC IBC–2012 (Section 1013.2), except that NFPA and IBC require guards on open-sided walking surfaces that are located more than 30 inches above the floor or grade below. Final paragraph (b)(11)(ii), consistent with existing § 1910.23(d)(1) and proposed paragraph (b)(11)(ii), requires VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 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. Final paragraph (b)(11)(iii), like the proposal, requires that employers ensure ship stairs and alternating treadtype 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 ICC IBC–2012 (Section 1009.15) and NFPA 101–2012 (Section 7.2.11.2). In the PEA, OSHA recognized that compliance with existing consensus standards for stairways and stairway landings will eliminate much of the employee exposure to fall hazards addressed by proposed § 1910.28(b)(11). Therefore, the Agency estimated no costs for this paragraph in the PEA. OSHA received no comments in the record that contradicted this preliminary assessment. Because as shown above in Table V–16, updated versions of the same consensus standards for stairways apply to the final standard, OSHA assigned no costs to paragraph (b)(11) in this FEA. § 1910.28(b)(12). Final § 1910.28(b)(12)(i), which addresses the duty to provide fall protection for employees on scaffolds, refers to the construction standards at 29 CFR part 1926, subpart L (Scaffolds), thereby avoiding any inconsistencies between the general industry and construction standards. Fall protection on scaffolds in the construction standards generally follows consensus standards; thus, in the PEA, based on the estimated high level of current compliance with the construction standards or consensus standards, OSHA assigned no costs to this paragraph, and retained that cost estimate for this FEA. Final § 1910.28(b)(12)(ii) requires that employers ensure that each employee using a rope descent system more than four feet (1.2 m) above is protected from falling by a lower level using a personal fall arrest system. Such systems must meet the requirements of 29 CFR part 1910, subpart I. OSHA addresses the costs associated with rope descent systems in ‘‘Cost estimation’’ below as part of the discussion of § 1910.27, Scaffolds and rope descent systems. § 1910.28(b)(13) and (14). These two paragraphs are new to final subpart D and introduce additional compliance costs for employers specializing in, respectively, rooftop services (paragraph (b)(13)) and work on platforms and other elevated surfaces in animal PO 00000 Frm 00336 Fmt 4701 Sfmt 4700 slaughtering and animal processing plants (paragraph (b)(14)). Discussion of these costs appears in the next subsection, ‘‘Cost estimates.’’ § 1910.28(b)(15). OSHA proposed this paragraph covering walking-working surfaces not otherwise addressed by the standard to clarify existing § 1910.23(c)(3), which requires a railing and toeboard for these types of surfaces. In the final rule, the revised language restricts the requirement to working surfaces four feet or more above a lower level, and permits the employer to comply with the paragraph by using a guardrail, safety net system, travel restraint system, or personal fall arrest system. Assuming that employers will choose the least-cost compliance option and that current industry use of conventional fall protection is widespread, OSHA in the PEA assigned costs to one surface, stepbolts, that appeared to be newly affected. OSHA determined that this requirement for protection on stepbolts will primarily affect establishments in NAICS 51, Information, and NAICS 7113, Promoters of performing arts, sports, and similar events, and that the preferred fall protection will be ladder safety systems. In the next subsection, ‘‘Cost estimates’’, OSHA discusses its final analysis of costs for this paragraph. § 1910.28(c). Final paragraph (c) requires that employers protect workers from being hit by falling objects, such as objects falling through holes or off the sides or edges of walking-working surfaces onto workers below. In addition, final paragraph (c) requires that employers protect workers using one or more of the following measures: • 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 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 final rule by consolidating into a single paragraph all of the provisions that address falling objects found in the existing standard at § 1910.23(b)(5) and (c)(1) and the proposed rule at paragraphs (b)(3)(iii), (b)(5)(i), (b)(14)(ii)). The final rule is consistent with the proposal and patterned on the construction standard (§ 1926.501(c)). E:\FR\FM\18NOR7.SGM 18NOR7 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations srobinson on DSK5SPTVN1PROD with RULES6 Therefore, because the final standard introduces no additional burden on employers beyond existing requirements, and because there were no comments in the record suggesting that additional economic impacts would result, OSHA expects that final paragraph (c) will impose no new costs. Fall Protection Systems and Falling Object Protection—Criteria and Practices (§ 1910.29) Final § 1910.29, like the proposed rule, establishes system criteria and work practice requirements for fall protection systems and falling object protection specified by final § 1910.28, Duty to have fall protection and falling object protection, and § 1910.140, Personal fall protection equipment. Final § 1910.29 requires that employers ensure the fall protection system and falling object protection they select meets the specified criteria and practice provisions. In general, OSHA patterned the system criteria and work practice requirements in final § 1910.29 to be consistent with its construction standards (§§ 1926.502 and 1926.1053). As mentioned in the preamble to final § 1910.28 and § 1910.29, many commenters supported making the general industry fall and falling object protection requirements consistent with those in the construction industry (e.g., Exs. 124; 155; 194). Final § 1910.29 reorganizes the existing rule so that the format of the final rule is consistent with the format in the construction fall protection standard at § 1926.502 and 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 (ANSI/ASSE 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 Construction and Demolition Operations (ANSI/ASSE A10.18–2012) (Ex. 388). 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 VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 revision, many of the requirements from the existing rule (e.g., existing § 1910.23), and drew the requirements from the construction fall protection standard at § 1926.502(b). OSHA analyzed the potential economic impacts of final § 1910.29(b) and anticipates that only paragraphs (b)(13) and (15) could potentially impose significant cost impacts, while the existence of the consensus standards listed above and other factors affecting current practice will result in no costs for all other paragraphs in § 1910.29(b). The Agency’s review of the impacts associated with paragraphs (b)(13) and (15) is given immediately below. § 1910.29(b)(13). This final paragraph revises a related provision in the proposed standard by specifying that guardrail systems used around points of access (e.g., ladderways) must have a self-closing gate that slides or swings away from the hole, with the gate constructed with a top rail, midrail, and latch or, alternatively, are offset to prevent a worker from walking or falling into the hole. In two separate comments, Intrepid Industries, Inc. (Intrepid), recommended that OSHA clarify the proposed requirement by recognizing recent technological developments in ladderway gates. Intrepid noted in its comments that when OSHA published the 1990 proposal, multiple horizontal rails were ‘‘ ‘foreign’ to industry,’ ’’ that since publication of the 1990 proposal, ‘‘a majority of protection devices have both a top rail and a mid rail similar to that of the guardrail . . . ,’’ and that such gates are equivalent in strength and design to guardrail systems and are widely available throughout industry (Exs. 68; 366). Therefore, having adopted Intrepid’s recommended clarification in the final rule, OSHA estimates that few affected employers will need to replace current ladderway gates, resulting in a negligible cost burden for employers. Accordingly, as in the PEA, OSHA did not assign any costs to this provision. § 1910.29(b)(15). This final paragraph, as did the proposal, requires that employers inspect manila, plastic, or synthetic rope used for top rails or midrails as frequently as necessary to ensure that it meets the specified strength requirements. OSHA addresses the inspection costs for this final paragraph below in ‘‘Cost estimates.’’ § 1910.29(c). Both the proposed and final paragraphs require that employers ensure safety net systems meet the requirements in the construction standards at 29 CFR part 1926, subpart M, thus avoiding any inconsistencies between general industry and PO 00000 Frm 00337 Fmt 4701 Sfmt 4700 82829 construction standards. Given that the safety net system requirements in the construction standards follow current consensus standards, OSHA in the PEA estimated that this requirement had no incremental costs. OSHA received no comments to the proposal addressing this analysis and, therefore, attributed no costs to final § 1910.29(c) in this FEA. § 1910.29(h). This final paragraph outdoor advertising operations, and sets forth the criteria for the use of qualified climbers, which it limits to these operations. In the PEA, OSHA modeled the costs to train and, as necessary, retrain qualified climbers. That is, OSHA assumed that qualified climbers required training beyond that now required for fixed ladders and, furthermore, OSHA believed that employers would incur additional costs associated with the requirement that the employer observe the performance to ensure the qualified climber has the skills necessary to perform the climb safely. The final standard permits the use of qualified climbers up to two years after publication of the rule, after which outdoor advertising employers must protect employees engaged in outdoor advertising from fall hazards in accordance with provisions of § 1910.28. Therefore, although OSHA’s estimate of costs associated with the criteria enumerated in § 1910.29(h) would not apply two years after publication of the final rule, OSHA retained those costs in this final analysis to account for any training costs connected with transitioning to the use of ladder safety systems or other fall protection measures on fixed ladders. OSHA discusses the cost estimates for final § 1910.29(h) below under ‘‘Cost estimates.’’ The other requirements in final § 1910.29, include the requirements found in final paragraphs (d) Designated areas, (e) Covers, and (f) Handrail and stair rail systems, (g) Cages, wells, and platforms used with fixed ladders, (i) Ladder safety systems, (j) Personal fall protection systems, (k) Protection from falling objects, and (l) Grab bars (specified as ‘‘Grab handles’’ in the NPRM). OSHA in the PEA noted that there already is significant, widespread compliance with the proposed requirements among general industry employers, resulting in the proposed requirements imposing minimal incremental cost burden on employers. OSHA requested feedback from the public on this analysis, but received no comments to this request. Therefore, in this FEA, OSHA assigned no costs to paragraphs (d) Designated areas, (e) E:\FR\FM\18NOR7.SGM 18NOR7 82830 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations Covers, (f) Handrail and stair rail systems, (g) Cages, wells, and platforms used with fixed ladders, (i) Ladder safety systems, (j) Personal fall protection systems, (k) Protection from falling objects, and (l) Grab bars. srobinson on DSK5SPTVN1PROD with RULES6 Training Requirements (§ 1910.30) This new section requires that employers in general industry train their employees regarding fall and equipment hazards, and retrain them when necessary. In the PEA, OSHA assumed that an employer that trains employees in compliance with § 1910.30 would choose to maintain records of the training, and the cost estimates in the PEA took account of this time burden on employers. The training costs estimated for proposed § 1910.30 included requirements from other proposed paragraphs that specify that the employer must conduct the training in accordance with proposed § 1910.30 (see Table V–18 for examples). OSHA discusses these costs in more detail below under ‘‘Cost estimates’’; in this analysis, incremental training costs apply only to the percentage of establishments that do not already provide regular safety training. 5. Cost Impacts for Final Subpart I (Personal Protective Equipment) In the NPRM, OSHA proposed to add a new section, § 1910.140, to 29 CFR part 1910, subpart I, to address personal fall protection equipment. The proposed text for § 1910.140 added specific design and performance requirements for personal fall protection systems to existing subpart I. In addition, the proposed standard required that the provisions for hazard assessment found in existing § 1910.132 apply as well to personal fall protection systems. The text of the final standard is virtually identical to that of the proposed rule, and although a number of commenters raised concerns about the technical specifications and criteria that would apply to personal fall protection systems, OSHA received few, if any, comments directly addressing the PEA. The discussion below describes OSHA’s general treatment of costs for subpart I; the next subsection, ‘‘Cost estimates,’’ provides additional details on the specific method for estimating costs. § 1910.132(g). Existing § 1910.132(g) lists the personal protective equipment standards under 29 CFR part 1910, subpart I, that are subject to the requirements specified in existing § 1910.132(d) and (f). Paragraph (d) of § 1910.132 requires employers to assess the workplace to identify any potential hazards and the need for PPE, while VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 § 1910.132(f) requires employers to train employers, at specified times, on the application limits of the equipment; proper hook-up, anchoring, and tie-off techniques; methods of care, use, and disposal; and proper methods of equipment inspection and storage. Final § 1910.132(g) adds the personal fall protection equipment regulated under § 1910.140 to the list of covered personal protective equipment. In the PEA, OSHA identified significant costs in connection with the proposed requirement; the Agency discusses the costs associated with this final requirement below under ‘‘Cost estimates’’ (for §§ 1910.140, Personal fall protection systems, and 1910.30, Training). § 1910.140(c)(18). 29 CFR 1910.140 is a new section that OSHA is adding to subpart I Personal Protective Equipment (PPE) (29 CFR part 1910, subpart I) to address personal fall protection systems, which include personal fall arrest, travel restraint, and positioning systems. The new section establishes requirements for the design, performance, use, and inspection of personal fall protection systems and system components (e.g., body harnesses, lifelines, lanyards, anchorages). Similar to the final rule revising 29 CFR part 1910, subpart D, final § 1910.140, when appropriate, also draws from national consensus standards addressing personal fall protection systems, details of which are provided in Section IV.B. of this document. Therefore, with the exception of one paragraph in § 1910.140, paragraph (c)(18), OSHA in the PEA estimated that current industry practice is widespread, and there were no comments objecting to that preliminary estimate. Final § 1910.140(c)(18) requires that employers inspect personal fall protection systems prior to the initial use during each workshift. In the PEA, OSHA identified significant costs in connection with the proposed requirement; the Agency discusses costs for this final paragraph below under ‘‘Cost estimates.’’ 6. Cost Estimates This subsection presents OSHA’s detailed estimates of the costs associated with the final rule, provision by provision. These compliance costs represent the incremental burden incurred by employers beyond the current baseline of fall-related safety expenditures. OSHA did not estimate potential cost savings to industry from increased flexibility in meeting specific requirements, such as using personal fall protection systems rather than the PO 00000 Frm 00338 Fmt 4701 Sfmt 4700 currently mandated handrail/guardrail systems, even if some of the new requirements might be safer than the currently mandated requirements.132 For a number of cost categories, there were no public comments on the PEA. For those cases, OSHA updated the applied unit wage and the numbers of affected employers and employees to reflect the revised profile, but retained the cost methodology used in the PEA. For provisions in the final standard for which OSHA adjusted the preliminary cost estimate, the Agency describes the form of the cost revision and the public comments that lead to the final cost estimate. a. Estimated Compliance Costs by Provision in the Final Standard for Subpart D Labor costs associated with compliance with the final standard generally involve additional employer and supervisor time for training and inspection. OSHA took the number of establishments and employees from Statistics of U.S. Businesses: 2007. The Agency based the number of employees covered by subparts D and I on the share of employees working in building and grounds; construction; 133 installation, maintenance, and repair; production; and material-moving occupations reported by the Bureau of Labor Statistics, Occupational Employment Statistics (BLS, 2007). See section C above in this FEA for additional industry-profile information. OSHA based employee and supervisor wages (see Table V–5) on data reported by the Bureau of Labor Statistics through their Occupational Employment Statistics program (BLS, 2010). OSHA adjusted wages to include the cost of benefits, and determined estimated benefits from data provided from the Bureau of Labor Statistics, Employer Costs for Employee Compensation— 132 The Agency assumed that the new requirements are at least as effective in employee protection as the requirements provided by the existing requirements. 133 As noted earlier in this FEA, production workers include workers in building and grounds; construction; installation, maintenance, and repair; production; and material-moving occupations. It is possible that employees in construction and related occupations, even though not employed by establishments in construction industries, might perform work regulated by OSHA under its construction standards in 29 CFR part 1926. Therefore, the employers of these workers, depending on the type of work performed, also may have to meet the requirements for fall protection and walking-working surfaces specified in the construction standards. For the purpose of estimating costs, however, OSHA assumed that the general industry standards cover these employees. E:\FR\FM\18NOR7.SGM 18NOR7 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations June 2011 (released September 2011).134 The Agency based current compliance rates on OSHA inspection statistics for fiscal year 2005 (see Table V–15); it determined the fraction of businesses that already provide regular safety training from information in the National Occupational Exposure Survey 82831 conducted by the National Institute for Occupational Safety and Health (NIOSH, 1988). See Table V–20, below. Table V-20 t .. Frae f1on ofB us1nesses Prov1'd'mg Reguar Sa~ery T ra1mng NAICS Fraction Providing Regular Safety Training Industry 11 Agriculture, Forestry, Fishing, and Hunting .796 21 Mining (2111 Oil and Gas Extraction) .751 22 Utilities .890 Table V-20 Fraction of Businesses Providing Regular Safety Training NAICS 31-33 Fraction Providing Regular Safety Training Industry Manufacturing .855 Wholesale Trade .668 44-45 Retai I Trade .668 48-49 Transportation .890 51 Information .664 52 Finance and Insurance .664 53 Real Estate .664 54 Professional, Scientific, and Technical Services .664 55 Management .664 42 56 Administrative and Support, Waste Management .664 and Remediation Services 61 Educational Services .83 62 Health Care .957 71 Arts, Entertainment, and Recreation .664 72 Accommodation and Food Services .664 81 Other Services .664 srobinson on DSK5SPTVN1PROD with RULES6 Final § 1910.22 contains three paragraphs with new requirements: working surfaces, and guard unsafe conditions until corrected or repaired; and • § 1910.22(d)(3): Have a qualified person perform or supervise any 134 Throughout the discussion below, wages that include benefits are also referred to as ‘‘loaded’’ wages. VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 PO 00000 Frm 00339 Fmt 4701 Sfmt 4700 E:\FR\FM\18NOR7.SGM 18NOR7 ER18NO16.222</GPH> • § 1910.22(d)(1): Perform regular and periodic inspection, and maintenance, of walking-working surfaces; • § 1910.22(d)(2): Correct and repair hazardous conditions on walking- General Requirements (§ 1910.22) ER18NO16.223</GPH> Source: ERG, 2007, based on NIOSH, 1988. 82832 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations srobinson on DSK5SPTVN1PROD with RULES6 correction or repair that involves the structural integrity of a walking-working surface. There were no public comments that addressed OSHA’s preliminary approach to estimating costs the costs for these paragraphs. For the final standard, OSHA revised all three provisions from the proposed language for clarification. For the purpose of estimating costs for § 1910.22(d)(1), OSHA in the PEA assumed that a significant percentage of facilities already include regular and periodic inspections of walking-working surfaces. OSHA used the noncompliance rates for floor-guarding in proposed § 1910.23 (which has the highest non-compliance rates, see Table V–15) to estimate the number of establishments that need to perform regular and periodic inspections of walking-working surfaces. OSHA assumed that a supervisor would spend 15 minutes every quarter performing the inspection, for a total of 1 hour per year. Based on these unit costs, OSHA preliminarily estimated that the total annual inspection cost would be $15.3 million. Relative to the existing and proposed standards, the final standard provides more specificity in the types of hazards for which employers will be inspecting walking-working surfaces (namely, protruding or sharp objects, loose boards, corrosion, leaks and spills). Included among the inspected surfaces will be residential roofs (addressed in § 1910.28(b)(1)), low-slope roofs (§ 1910.28(b)(13)), and slaughtering VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 facility platforms (§ 1910.28(b)(14)), surfaces whose inclusion in the scope of the proposed standard is recognized by OSHA in this final notice. As a result of further analysis of these affected surfaces, OSHA believes that regular and periodic inspections will be more extensive than determined in the PEA. For this final analysis, OSHA raised the quarterly inspection time from 15 minutes to 30 minutes. Therefore, OSHA estimated the final cost for paragraph § 1910.22(d)(1) to be $32.8 million.135 For estimating the costs of § 1910.22(d)(2), OSHA in the PEA projected that within a year, 10 percent of affected establishments would identify an unsafe condition, and that it takes an employee 15 minutes to set up a guard mechanism (e.g., cones, barriers). The Agency assumed incremental material costs to be negligible since it is likely that most employers currently stock guard equipment but only occasionally deploy it. Estimated compliance costs for this provision were $0.23 million in the PEA and are $0.25 million in this FEA.136 135 For timber tract operations (NAICS 1131), costs are estimated by multiplying together 450 establishments (see Table V–1), 9.6 percent noncompliance rate for existing floor guarding requirements (see Table V–15), two hours per supervisor, and a $26.10 hourly loaded wage (see Table V–5), yielding a result of $2,263. Analogous calculations are performed for each industry and summed to produce the total of $32.8 million. 136 For example, OSHA estimated the costs to correct unsafe conditions for timber tract operations (NAICS 1131) in the following way. Total guarding cost = no. of affected establishments * (1 ¥ current PO 00000 Frm 00340 Fmt 4701 Sfmt 4700 For § 1910.22(d)(3), OSHA in the PEA estimated that it takes five minutes for a supervisor or qualified person to inspect the repair of the unsafe condition. Final § 1910.22(d)(3) was revised to read that when any correction or repair involving the structural integrity of the walking-working surface is conducted, a qualified person must perform or supervise the correction or repair. Applying the five-minute time unit across all affected employers, OSHA preliminarily estimated that the costs for a supervisor or qualified person to inspect repairs would total $0.13 million, and, applying the fiveminute unit for this FEA, determined that final costs will be slightly higher, at $0.14 million for performance or supervision of the correction or repair. Summing costs for the three paragraphs in final § 1910.22(d) with cost impacts, the total estimated cost for compliance with § 1910.22(d) is, after rounding, $33.2 million per year. Ladders (§ 1910.23) In the PEA, eight paragraphs in proposed § 1910.23 specify new training requirements for protecting employees from slip, trip, and fall hazards during operations involving ladders. Table V–21 summarizes these eight new training requirements. compliance rate) * percent with an unsafe condition * time to set up guarding * employee hourly loaded wage = 450 establishments (1 ¥ 90.4 percent) * 10 percent * 0.25 hours * $19.99 = $22. Analogous calculations are performed for each industry and summed to produce the total of $0.25 million. E:\FR\FM\18NOR7.SGM 18NOR7 The PEA determined that employers could address all eight of these new provisions in a single training session. In addition, OSHA determined that employers can comply with these provisions using informal training; therefore, the Agency did not include administrative costs for employers. For this FEA, OSHA added a ninth provision, § 1910.23(c)(9), addressing stabilization of ladders on slippery surfaces, to its analysis of costs, and applied the same cost modeling parameters here as it did in the PEA. OSHA’s Web site includes a resource center with a loan program for training videos (OSHA, 2012b). The index lists 12 training videos for ladders and stairways, with run times ranging from 5 to 19 minutes, for an average of 12 minutes. Accordingly, for the purposes of estimating costs for ladder safety training, OSHA in the PEA and this FEA VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 applied a 15-minute training period per video. In OSHA’s cost model, employers can train 10 employees per session, with one supervisor in attendance. OSHA further assumed that employers incur $1 in materials cost for handouts for each employee trained. Some establishments already provide regular safety training. For each affected NAICS industry, OSHA applied an estimate for the percentage of employees already providing training. OSHA’s derived its industry-by-industry baseline estimate for safety training from the NIOSH National Occupational Exposure Survey (NOES) database (NIOSH, 1988). Although these data are over 25 years old, the NIOSH NOES survey is still the primary source for such information, and covers a broad range of industries. No comment in the record suggested that the NIOSH NOES PO 00000 Frm 00341 Fmt 4701 Sfmt 4700 82833 survey data are no longer accurate. Furthermore, OSHA believes that the proportion of employees already offered regular safety training likely increased over the past two decades; hence, the Agency most likely overestimated the training costs. The cost to train employees at establishments that do not offer regular safety training is a one-time cost annualized over a 10-year period at a discount rate of 7 percent. Summing across all affected employers, the total first-year cost is $11.5 million, with an annualized cost of $1.6 million.137 137 For gambling industries (NAICS 7132), costs are estimated by first multiplying together 5,240 employees (see Table V–1) and the 33.6 percent rate of not yet providing training (=1–0.664 shown in Table V–20), yielding an estimate of 1,761 employees that do not yet receive training. Next, this estimate is multiplied by the sum of worker E:\FR\FM\18NOR7.SGM Continued 18NOR7 ER18NO16.224</GPH> srobinson on DSK5SPTVN1PROD with RULES6 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 82834 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations hires data collected by the Bureau of Labor Statistics (ERG, 2007) formed the basis in the PEA for OSHA’s analysis of the annual costs of training employees new to the workforce; for this FEA, OSHA used 2007 BLS industry hiresrate data to correspond to the employment levels (2007) used in the analysis. Table V–22 below summarizes these data for the NAICS codes affected by this final standard. Under these assumptions, the estimated cost is $5.4 million per year to train new employees in ladder safety. In the PEA, to estimate the costs of mobile ladder stands and mobile ladder stand platforms that conform to the design requirements specified in § 1910.23(e), OSHA’s cost formula included all establishments potentially covered by proposed subpart D. OSHA assumed that the typical lifetime for a ladder is five years; thus, one-fifth of the establishments would purchase a ladder meeting the design requirements each year.138 Furthermore, OSHA assumed that a supervisor from each establishment would take five minutes to read ladder specifications to ensure that, prior to purchase, the ladder met the requirements for that type ladder. With these assumptions, the estimated annual cost for § 1910.23(e) was $3.8 million in the PEA; in this FEA, allowing for the increase in the number of affected establishments and updated wage rates (generally upward), annual total costs for final § 1910.23(e) are $4.2 million.139 Step Bolts and Manhole Steps (§ 1910.24) time costs (0.25 hours times an $18.80 hourly production worker loaded wage (see Table V–5)), materials costs ($1 per employee) and instructor time costs (0.25 hours times a $38.66 hourly supervisor loaded wage (see Table V–5), divided by 10 to reflect a 10-worker class size), yielding a result of $11,736 (= $8,274 labor cost + $1,761 materials cost + $1,701 instructor cost). Analogous calculations are performed for each industry and summed to produce the total of $11.5 million. 138 Underlying this assumption is the likelihood that some establishments will purchase more than one ladder in a given year, or will purchase more than one ladder over the five-year span. 139 For grantmaking and giving services (NAICS 8132), costs are estimated by first multiplying together 16,356 establishments (see Table V–1) and the 20 percent rate applied in ladder replacement, yielding an estimate of 3,271 establishments that will be purchasing a ladder. Next, this estimate is multiplied by the sum of worker time costs (5 minutes/60 minutes = 0.083 hours times a $29.89 hourly production supervisor loaded wage (see Table V–5)), yielding a result of $8,147. Analogous calculations are performed for each industry and summed to produce the total of $4.2 million. VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 PO 00000 Frm 00342 Fmt 4701 Sfmt 4700 Step bolts. In estimating the cost of the step-bolt inspection requirement specified by proposed paragraph (a)(8) in the PEA, OSHA identified three types of structures requiring step bolts and pole steps: • Utility poles; • Communication structures; and • Pole-mounted lights in sports and performance arenas. Final paragraph (a)(8) requires that employers ensure step bolts are E:\FR\FM\18NOR7.SGM 18NOR7 ER18NO16.225</GPH> srobinson on DSK5SPTVN1PROD with RULES6 New employees who begin affected jobs also will need training. For the purpose of estimating this cost, OSHA in the PEA assumed that training received from a prior employer was not sufficient to meet the proposed subpart D requirement. ERG’s analysis of 2002 srobinson on DSK5SPTVN1PROD with RULES6 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations inspected at the start of each work shift and maintained in accordance with § 1910.22. OSHA addresses the cost impacts of final paragraph (a)(8) in the following discussion. Utility poles. According to the 2007 Utility Data Institute Directory of Electric Power Producers and Distributors, there are 6,297,596 miles of distribution lines in the United States (Platts, 2007).140 According to ERG, the most recent mileage estimate available for overhead distribution lines was 4.1 million miles in 1996, or about twothirds of total line miles (NCAMP, 1997). Considering the maturity of the electric-power industry in the United States, OSHA assumed that there has not been a significant increase in overhead line miles since 1996, with most new lines probably built underground. Assuming one utility pole for every 100 feet of line, OSHA estimated that there are 216,480,000 utility poles in the United States. According to a 2004 highway safety study, this estimate is 2.5 times the number of reported utility poles on highways in 1999 (NCHRP, 2004); therefore, OSHA’s estimate appears to be reasonable. OSHA assumed that employees in the affected industry group—NAICS 2211, Electric Power Generation, Transmission and Distribution—climb one percent of the poles once each year and that it takes a production worker (at an hourly wage of $45.11, including benefits) one minute to inspect the step bolts on a pole. Therefore, the estimated annual cost in the PEA for inspecting step bolts was $1.5 million. In the absence of any comment on the record taking exception to this analysis, in this FEA, OSHA estimated the cost for this requirement to be $1.6 million, allowing for an increase in wages since publication of the NPRM. Communication structures. For the PEA, ERG estimated that there are roughly 190,000 fixed-ladder structures in the communications industry (see ERG, 2007, Appendix A). This estimate encompasses communication structures with fixed ladders and step bolts. Fixed ladders, however, have an existing requirement for inspection, while step bolts do not. To narrow the estimate to fixed ladders with step bolts, ERG searched an FCC database (Antenna Structure Registration (ASR)) and determined that most communication 140 The final Electric Power Generation, Transmission, and Distribution; Electrical Protective Equipment standard requires that employers follow the fall protection requirements in 29 CFR part 1910, subpart I (79 FR 20315 (4/11/ 2014); see § 1910.269(g) in this final rule). VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 structures meet at least one of the following criteria: • Height is 200 feet or higher; • Height <199 feet if within 5 miles of an airport and fails the glide calculation (part 17 requirement); or • Height of the extension (e.g., beyond the building roof) is 20 feet or more. ERG assumed that these structures are more likely to have fixed ladders rather than step bolts. As of May 2007, there were approximately 93,000 structures in the ASR database. Communication structures that are not in the ASR database are smaller and, thus, more likely to have step bolts. ERG calculated that the difference between the total number of structures (190,000) and the number in the ASR database (93,000) would represent the number of structures that could potentially have step bolts. Following ERG’s methodology, OSHA’s cost model projected that employees climb each of the 97,000 structures with step bolts once a year and that spend one minute inspecting the structure before climbing it. These unit estimates resulted in an annual cost of $0.05 million ($50,000) for NAICS 51 (Information) in the PEA; with 2010 loaded hourly wages ranging from $21.64 to $32.60 for production workers across sixteen four-digit industry codes in NAICS 51, the annual cost is approximately $0.04 million ($43,000) in this FEA (average wages for production workers in NAICS 51 fell from 2008 to 2010). Sports and performance arenas. According to the 2002 census, there were 1,699 establishments in NAICS 7113, Promoters of performing arts, sports, and similar events, with facilities (Census, 2002). For the PEA, ERG was unable to estimate the number of step bolts at each facility, but instead assumed that employers spent one hour per year inspecting all step bolts at each facility (OSHA assumed that a production worker would conduct the inspection). Therefore, in the PEA, OSHA calculated that annual costs would total $0.034 million ($34,000) for NAICS 7113. For this FEA, annual costs for NAICS 7113 total $0.050 million ($50,000) after updating the number of facilities (2,613) per the 2007 Census and applying the 2010 loaded hourly wage of $19.08 for production workers in NAICS 7113. Summing costs for utility poles, communication structures, and sports and performance arenas, OSHA estimated in the PEA that the total annual inspection costs for step bolts would be $1.54 million; for this FEA, total inspection costs are $1.72 million. PO 00000 Frm 00343 Fmt 4701 Sfmt 4700 82835 In the proposal, OSHA requested, but did not receive: (1) Comment on the extent to which employers currently conduct visual inspection 141 of step bolts in the telecommunications and electric-utility industries, and in sports and performance arenas; (2) comment on the assumptions underlying its analysis of costs; and (3) information on the potential impacts of the proposed requirements on climbing surfaces with step bolts safely. Therefore, in this FEA, OSHA adjusted the cost estimates in the PEA only to the extent that wages and the number of establishments changed since it published the PEA. For this final economic analysis, OSHA included, within the total costs for the final standards for step bolts under final § 1910.24, the costs for repairing or replacing defective step bolts identified in inspections required by the final rule. Based on a review of OSHA 2005 inspection data for the Transportation and Utility sectors, OSHA calculated that 0.34% of inspected step bolts will be found to be out of compliance.142 Applying this step bolt failure rate to the total number of step bolts in affected NAICS industries (see above) yields an estimated 7,727 step bolts repaired or replaced yearly. At a unit cost of $4.50 or $14.75 per step bolt depending on the NAICS code 143 and an installation time of fifteen minutes, annual costs for repair or replacement of step bolts are expected to total approximately $0.3 million. (See Ex. [OSHA Excel Workbook], Tab annual_24_stepbolts.). Summing costs for inspection of step bolts and repair or replacement of defective step bolts, OSHA estimates that the costs for the provisions addressing step bolts under final § 1910.24 will total $2.0 million. Manhole steps. Final paragraph (b) addresses the design, capacity, and use of manhole steps. As discussed earlier, 141 The requirement in the proposed standard that step bolts be ‘‘visually inspected’’ was revised in the final standard to read that step bolts be ‘‘inspected’’. 142 Of 38,714 OSHA inspections in 2005, 11,469 resulted in citations, of which 1,301 were in Transportation or Utility industries. One hundred and fifty-six citations in Transportation/Utility referenced Subpart D, and of that total, 15 citations referenced 1910.24, Fixed industrial stairs, the existing standard judged by OSHA to be most closely associated with the final provision for step bolts. (See https://www.osha.gov/dep/enforcement/ enforcement_results_05.html). Therefore, (11,469 citations/38,714 inspections) * (156 Transportation/ Utility citations in Subpart D/1,301 total Transportation/Utility citations) * (15 industrial stairs citations/156 Subpart D citations) = 0.34% probability of a scaffolds citation in Transportation/ Utility sector. 143 NAICS 22: $4.50; NAICS 51, 71: $14.75. See Ex. [OSHA Excel Workbook], Tab annual_24_ stepbolts). E:\FR\FM\18NOR7.SGM 18NOR7 srobinson on DSK5SPTVN1PROD with RULES6 82836 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations three requirements in final paragraph (b)(2) exceed the requirements specified in a national consensus standard, ASTM C478–13, for steps in precast concrete manhole sections: • Manhole steps must have slipresistant surfaces such as corrugated, knurled, or dimpled surfaces; • Manhole steps must be constructed of, or coated with, material that protects against corrosion in an environment where corrosion may occur; and • The design of manhole steps must prevent the employee’s foot from slipping or sliding off the end of the manhole step. OSHA expects that employers will identify any deficiencies in manhole steps through compliance with final paragraph (b)(3); that provision requires that employers ensure manhole steps are inspected at the start of the work shift, and maintained in accordance with § 1910.22. In estimating the cost of the manhole-step inspection requirement specified by proposed paragraph (b)(3) in the PEA, OSHA estimated there are between 6.6 million and 13.2 million manholes, with a midpoint estimate of 9.9 million, nearly all of which are in water, sewage, and related utilities. Of these manholes, approximately 85 percent, or 8.4 million manholes, are 20 feet or less in depth, while the remainder, 15 percent or 1.5 million manholes, are more than 20 feet in depth. In the PEA, OSHA estimated that employees would enter 10 percent of all manholes, on average, and that it would take one minute to inspect the steps prior to entering the manhole. That analysis resulted in an estimated annual cost of $0.4 million for the industry most affected by this requirement, NAICS 2213 (Water, sewage, and other systems). After updating the wage rate for production workers in NAICS 2213, OSHA’s final estimate for inspection of manhole equipment, including steps, totals $0.5 million. Other industries also use manholes for access, such as electric-power generation, transmission, and distribution (NAICS 2211) and naturalgas distribution (NAICS 2212). ERG, however, had no data on the number of manholes for those industry groups, and although OSHA assumed in the PEA that the costs would be proportional to the number of manholes estimated for water and sewage systems, OSHA was not able to estimate costs for NAICS 2211 and 2212. The Agency requested, but did not receive, public comment in the proposal on the impact of the inspection requirement on these and any other affected industries. Therefore, for this FEA, OSHA assumed that, for VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 NAICS 2211 and 2212, employers seldom encounter manholes, and that when they do encounter manholes, they routinely inspect the manhole steps to ensure that the steps meet or exceed the requirements of the final rule. Therefore, OSHA determined that, under the final standard, any incremental costs for manhole fall protection in NAICS 2211 and 2212 will not be significant. Employers would incur costs for slipresistant and corrosion-resistant manhole step surfaces required by proposed paragraphs (b)(2)(i) and (ii) in the future because employers would replace manholes with steps at the end of their useful life. As described above, OSHA estimates there are 9.9 million manholes, of which 85 percent are 20 feet or less in depth and 15 percent are more than 20 feet in depth. In the PEA, OSHA assumed that manholes less than or equal to 20 feet in depth used portable ladders, fixed ladders, and steps in equal shares, resulting in 2.9 million manholes with steps, while it assumed that manholes more than 20 feet in depth used fixed ladders and steps in equal shares, resulting in 0.7 million manholes with steps. This analysis, therefore, indicates that the proposed requirement would affect 3.6 million manholes. The manhole step selected from vendor lists in the PEA had a per-unit cost of $8.50, and OSHA assumed that this price included a 10 percent premium for the steps to meet the proposed requirements (ERG, 2007). Applying the unit values and methodological assumptions described above for this FEA, OSHA estimated annual replacement costs for steps by applying a 10 percent rate for annual entry of manholes and, of that number, applying a 10-percent rung failure rate. At the incremental cost of $0.85 each (10 percent of $8.50 per rung), the estimated annual replacement cost for steps is $0.03 million ($31,000). OSHA estimated annual replacement costs for all manhole-access equipment (including steps, but excluding manhole covers) assuming a baseline of ten percent and further assuming that employers would replace 5 percent of this equipment each year and would install steps every 16 inches. Accordingly, the estimated yearly manhole replacement cost is $1.6 million, and combining this cost with OSHA’s final estimate of costs for inspection of manhole equipment, including steps ($0.5 million), OSHA derives a total cost of $2.1 million for manhole fall protection under the final rule (after rounding). For this FEA, OSHA has included the labor costs for annual replacement of PO 00000 Frm 00344 Fmt 4701 Sfmt 4700 manhole steps or rungs that are judged to be out of compliance with the final standard. OSHA applied a baseline compliance rate of ten percent for affected utilities, estimated that removal of the old rung or step and replacement with a new one will involve 15 minutes of labor per rung or step (hourly loaded wage of $30.47 for a production worker in NAICS 2213 (water, sewage utilities)), and multiplied unit labor cost times the total number of affected steps, or 1.83 million steps after adjusting for baseline.144 Combining those cost factors, the Agency estimates that labor costs for removal and replacement of defective rungs or steps will total $13.9 million. Combining costs for inspections and repair of step bolts and manhole steps, OSHA estimates that the final costs associated with § 1910.24, Stepbolts and manhole steps, will total $16.0 million. Scaffolds and Rope Descent Systems (§ 1910.27) Training. Paragraph (b)(2)(ii) of proposed § 1910.27 and paragraph (b)(2)(iii) of the final § 1910.27 specify training requirements for rope descent systems. As described earlier in this ‘‘Costs of Compliance’’ section, OSHA attributed costs for any training beyond what is done as a result of the 1991 OSHA memorandum on descent-control devices to final § 1910.30 (see below). Sound anchorages. In the PEA, costs assigned to ensure sound anchorages as required by proposed § 1910.27(b)(iv) involved: (1) A qualified/competent person who would inspect the rigging and anchorages on buildings annually, and (2) a professional engineer who would certify the soundness of the rigging and anchorages every 10 years. According to an industry expert contacted by ERG, an estimated 3.0 million window cleaning descents take place annually at 750,000 buildings in the U.S. (ERG, 2007). In the absence of comments on the PEA in the proposal, OSHA is retaining these estimates in this FEA for the inspection and certification requirements specified by final § 1910.27(b)(1)(i). Using data collected by the Department of Energy (DOE) for surveys on energy use, ERG compared this estimate with the number of commercial and residential buildings with four or more floors. The 2003 144 1.06 million steps or rungs in manholes less than 20 ft. deep (28,611 in single-rung manholes and 1,144,440 in multi-rung manholes) + 780,000 steps or rungs in manholes more than 20 ft. deep (7,425 in single-rung manholes and 853,875 in multi-rung manholes) = 2.03 million steps or rungs (100%¥10% baseline) = 1.83 million steps or rungs. See Document ID [OSHA Excel Workbook], Tab materials_24_manholes. E:\FR\FM\18NOR7.SGM 18NOR7 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 82837 professional engineer. Zeolla (2003) stated that most buildings that invest in anchors are inspecting them. On the basis of these comments, OSHA in the PEA estimated that 25 percent of the approximately 750,000 buildings cleaned every year undergo anchor certification on a consistent basis. OSHA’s final standard provides more detailed requirements for anchorages used with rope descent systems than the proposed standard. Final § 1910.27(b)(1)(i) states that before any rope descent system is used, the building owner must inform 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 (268 kg), in any direction, for each employee attached. The information must be based on an annual inspection by a qualified person and certification of each anchorage by a qualified person, as necessary, and at least every 10 years. Therefore, for this FEA, OSHA revised upward its estimate of the baseline level for anchor certification. Accordingly, OSHA believes that the current baseline is at least 35 percent nationwide, and may be much higher in some markets. For example, the owner of Chicago’s largest window cleaning company testified in OSHA’s public hearings on the NPRM that in Chicago, 60 to 70 percent of building owners provide documentation of anchor certification (Ex. 329 (1/19/2011), p. 218). Similarly, the owner of one of Houston’s leading window cleaning companies testified that every building owner that he works with provides certification of anchorages (Ex. 329 (1/19/2011), p. 310). Recognizing that in some smaller markets, anchor certification may not be as widespread or frequent as suggested by these commenters, OSHA applied a baseline level of 35 percent for anchor certification and inspection in estimating costs for this requirement in the FEA. Therefore, if 65 percent of the approximately 750,000 buildings that have windows cleaned each year must now comply with the final inspection and certification requirement, then OSHA estimates that 487,500 buildings will require annual inspections and decennial certifications. In the PEA, OSHA further assumed that a production supervisor would perform the annual inspections, and that it would take this supervisor one hour to perform the inspection. Annual costs in the PEA for the building inspections totaled $16.7 million; after adjusting wage rates to 2010 levels and applying the revised baseline estimate, OSHA in this FEA estimates annual costs of $14.1 million for the inspection of building roof anchorages. Table V–23 summarizes the range in costs for a professional engineer to certify building anchorages; OSHA drew these cost estimates from comments in the record, and adjusted the estimates to 2003 dollars using as the deflator the Consumer Price Index—All Urban Consumers (BLS, 2007). The costs range from a low of $175 to a high of $2,500; this range probably represents the variation in building sizes, complexity of anchorage arrangements, and regional standards. The median value is $1,000, which is the estimate (in 2005 dollars) applied by OSHA in the PEA. 145 Since publication of the PEA, DOE released the results from its 2009 Residential Energy Consumption Survey (RECS) (DOE, 2013). According to the 2009 RECS, 1.9 million apartment buildings have 5 to 10 floors, 0.9 million apartment buildings have 11 to 20 floors, and 0.4 million apartment buildings have more than 20 floors. Summing the three categories of residential buildings, OSHA estimates that there are approximately 3.3 million residential buildings with five or more floors, a total that is identical to OSHA’s preliminary estimate of 3.3 million residential buildings with at least five floors. Therefore, OSHA applied its preliminary estimate of tall residential buildings for this final analysis. 146 OSHA notes that in the 2010 Proposed Rule, the Agency requested comment on inspection and maintenance of rooftop anchorages but nowhere stated that a revised OSHA standard would require an engineer to perform those duties. VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 PO 00000 Frm 00345 Fmt 4701 Sfmt 4725 E:\FR\FM\18NOR7.SGM 18NOR7 ER18NO16.226</GPH> srobinson on DSK5SPTVN1PROD with RULES6 Commercial Buildings Energy Consumption Survey identified about 140,000 commercial buildings nationwide (DOE, 2006). The 2001 Residential Energy Consumption Survey (RECS) identified about 2.4 million apartment buildings with 5 to 10 floors, 0.9 million apartment buildings with 11 to 20 floors, and an unspecified number of buildings with more than 20 floors (DOE, 2004). Summing the three categories of residential buildings, ERG estimated that there are approximately 3.3 million residential buildings in the U.S. with five or more floors.145 OSHA assumed that each commercial building has its windows cleaned annually, thereby accounting for 140,000 of the estimated 750,000 window cleanings per year. If the 3.3 million residential buildings account for the remaining 610,000 cleanings, each of these buildings would, on average, have its windows cleaned every five to six years. ERG’s industry expert estimated that a minimum of 20 percent of the building owners complied with the anchorageinspection requirement, and that the number was increasing. However, comments submitted to the Agency in response to the 2003 reopening were inconsistent regarding the likelihood that building owners inspect their anchorages on a periodic basis. Amodeo (2003) noted that some clients view ANSI I–14.1 as voluntary and resist having inspections. Kreidenweis (2003) commented that engineers seldom inspect anchorages.146 In contrast, Lebel (2003) noted that many buildings have a roof plan and identified anchorages (i.e. anchorages designated for use in window cleaning), certified by a 82838 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations A cost breakdown of inspections and anchor installations provided by Valcourt Building Services (Valcourt; Ex. 358) confirms OSHA’s preliminary estimate of the cost for the certification of building anchorages; Valcourt’s quote for initial roof certification was $1,090. For this final cost analysis, OSHA applied the ratio of the 2011 GDP deflator and the 2005 GDP deflator to its preliminary estimate to derive an estimate of $1,122 in 2011 dollars for initial roof anchor certifications. Assuming, as indicated earlier, that building owners would certify building anchorages every 10 years, OSHA estimates that 48,750 buildings (onetenth of 487,500 buildings) would need anchorage certification each year. At an average cost of $1,122 for certification, annual costs for anchorage certification would total $54.7 million. During the course of decennial certifications and annual inspections, engineers will determine that a small percentage of anchorages will need replacement due to failure to meet building codes or other applicable requirements. For this final economic analysis, OSHA has included the cost for the purchase and installation of replacement anchorages. Based on a review of OSHA 2005 inspection data for the Service industry sector (NAICS 54–81), OSHA calculated that 0.23% of inspected anchorages will be found to be out of compliance.147 Applying this srobinson on DSK5SPTVN1PROD with RULES6 147 Of 38,714OSHA inspection in 2005, 11,469 resulted in citations, of which 1,938 were in Service industry sector (NAICS 54–81). One hundred and sixty-two citations in the Service industry sector referenced Subpart D, and of that total, 15 citations referenced 1910.28, Scaffolds, the existing standard judged by OSHA to be most closely associated with the final provision for anchorages stabilizing suspended scaffolds. (See https://www.osha.gov/ dep/enforcement/enforcement_results_05.html and Document ID [OSHA Excel Workbook], Tab Compliance.) Therefore, (11,469 citations/38,714 inspections) * (162 Service industry sector citations in Subpart D/1,938 Service industry sector citations) * (15 Scaffolds citations/162 Subpart D VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 anchorage failure rate to the annual number of affected buildings, 750,000 building, yields an estimated 1,734 anchors replaced yearly. At a unit cost of $1,000 per anchor 148 and an installation time of three hours, annual costs for replacement of roof anchors are expected to total approximately $1.9 million. (See Ex. [OSHA Excel Workbook], Tab annual_27.) Summing costs for inspecting and certifying building anchorages and replacing faulty anchors, OSHA estimates that annual costs would total $71.1 million for employer compliance with the anchorage inspection and certification requirements specified by final § 1910.27(b)(1). RDS distance limitation. Final § 1910.27(b)(2)(i) prohibits the use of a rope descent system (RDS) for heights greater than 300 feet (91 m) above grade unless the employer can demonstrate that it is not feasible to access heights above 300 feet by any other means or that these other means result in a greater hazard to employees than an RDS. Based on comments in the record (Exs. 126; 163; 219; 222; 358), and as discussed earlier in this section, OSHA expects that there are 1,300 buildings over 300 feet tall subject to this limitation. In written testimony, Valcourt Building Services estimated that limiting the RDS distance to 300 feet would lead to an increase in window cleaning costs ranging from 10 to 20 percent (Ex. 358, p. 4). In a comment submitted in response to the 2003 Notice, Braco Window Cleaning Service, Inc. estimated that the 300-ft. limit to RDS would lead to an increase in prices of 30 percent for building owners (Kreidenweis, 2003). As noted earlier in this analysis of costs, Corporate Cleaning Services estimated citations) = 0.23% probability of a scaffolds citation in Service industry sector. 148 Google shopping: Grainger roof anchor. PO 00000 Frm 00346 Fmt 4701 Sfmt 4700 that the RDS distance limit would increase costs for use of suspended scaffolds by up to 30 percent (Ex. 126). Combining the Braco and Corporate Cleaning estimates of percentage cost increase with the Valcourt range of percentage cost increase, OSHA estimates that if a typical window cleaning job on a tall building takes 24 hours for a 4-person crew (production worker loaded wage in NAICS 5617— Services to Buildings and Dwellings is $19.39), then applying the midpoint of the range of 10 percent to 30 percent (i.e., 20 percent) to the number of affected buildings results in an annual increased labor cost of $484,000. In addition to the labor costs associated with this distance limitation, a small fraction of affected buildings will now need to acquire suspended scaffolds (i.e., swing stages) or powered platforms to service windows at distances over 300 feet from the building roof. OSHA believes that building owners will elect to purchase or contract with window cleaning services to purchase the least expensive system that delivers the appropriate level of safety. According to Valcourt, transportable swing-stage systems are available for $25,000 per unit, and that approximately 10 percent of the affected buildings that they service would need to purchase such units (Ex. 358, p. 4). Therefore, applying the unit cost for suspended scaffolds to 10 percent of affected buildings (10 percent of 1,300 buildings, or 130 buildings), OSHA estimates that employers will incur firstyear costs of $3.25 million. Annualized over 10 years, equipment costs associated with the RDS height limitation will total $463,000. Duty To Have Fall Protection and Falling-Object Protection (§ 1910.28) Table V–24 lists the requirements in this section that are likely to result in new cost burdens on employers. E:\FR\FM\18NOR7.SGM 18NOR7 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 82839 Table V-24 New Requirements in Final §1910.28, Duty to Have Fall Protection Subject Paragraph The employer must protect employees working on a surface from falls of four feet §1910.28(b)(1) or greater to a lower level by any of the controls detailed in this paragraph. § 1910.28(b)(4)(ii)(C) Those employee have been trained [on deckboards] in accordance with §1910.30. Requirements for proper fall protection systems for fixed ladders that extend §1910.28(b)(9) more than 24 feet above a lower level; prohibits after specified dates the use of cages and wells for the purpose of fall protection in the absence of personal fall protection systems or ladder safety systems. Employees who climb fixed ladders on billboards not equipped with fall protection must receive training and demonstrate the physical capability to perform the §1910.28(b)(10)(ii) necessary work in accordance with §1910.29(h), and meet other requirements specified for qualified climbers; prohibits use of qualified climbers two years after publication of the final rule. Costs associated with training assigned to final §1910.29(h). For work performed on low-sloped roofs that are 4 feet (1.2 m) or more above a lower level, the employer must protect each employee from falling by using a §1910.28(b)(13) guardrail system, safety-net system, travel restraint system, personal fall arrest systems, or designated areas; requirements for fall protection depends on the distance the employee is from the roof edge and the type of work being performed. For slaughtering facility platforms, the employer must protect each employee from fall hazards on the unprotected working side of a platform that is 4 feet (1.2 m) or more above a lower level by using a guardrail system or a travel restraint system. When the employer can demonstrate the use of a the use of a guardrail §1910.28(b)(14) or travel restraint system is not feasible, the work may be done without guardrails or a travel restraint system provided: (A) The work operation for which fall protection is infeasible is in process; (B) Access to the platform is limited to authorized employees; and VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 PO 00000 Frm 00347 Fmt 4701 Sfmt 4725 E:\FR\FM\18NOR7.SGM 18NOR7 ER18NO16.227</GPH> srobinson on DSK5SPTVN1PROD with RULES6 (C) The authorized employees are trained in accordance with §1910.30. Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations The following discussion presents, by requirement, the details of OSHA’s cost analysis for this section. Chimney-cleaning services. OSHA received comments indicating that the chimney cleaning industry would incur additional costs, when compared to its current practices, and therefore OSHA has included these costs in its analysis. To protect chimney sweeps from falls after they ascend to residential and commercial roofs using ladders or lifting devices, OSHA’s cost model determined that, for the roughly 6,000 chimneysweep companies nationwide, affected employers will use a roof anchor kit that includes a 14-inch steel roof anchor, 50foot lifeline and hardware assembly, and a 3-foot shock-absorbing lanyard and full-body harness with a unit cost of $368. In addition, employers will need two harnesses, at $118 per unit, to equip the typical two-man or three-man crews involved in each job; the cost model assigned three calls daily for each chimney-sweep crew. Based on comments in the record (Ex. 329 (1/18/ 2011), pp. 97, 101, 162, 176–178), OSHA estimates that 10 percent of chimney-sweep employers currently protect their workers from falls in accordance with the requirements of this final standard. In addition to the initial equipment costs annualized over 10 years, employers will incur the following labor and equipment costs: • Pre-installation of anchors requiring one-half hour of a production worker’s time, at a loaded wage = $19.39/hour, per anchor; • Monthly replacement of roof anchors due to deterioration; and • A production worker’s time of five minutes per job to use the lifeline and lanyard system (productivity loss). Combining annualized initial costs and annual recurring costs for fall protection of chimney sweeps (NAICS 56179), OSHA estimates that the new costs associated with this industry will VerDate Sep<11>2014 00:22 Nov 18, 2016 Jkt 241001 total $12.7 million, or $2,124 per chimney-sweep company each year.149 In post-hearing comments, the National Chimney Sweep Guild stated that compliance with the proposed standard is infeasible and would pose a greater hazard during sweep activities typically performed by their members (Ex. 342, p. 3). However, the sweeps guild did not provide information or data on the extent of the infeasibility that the requirement would impose on NCSG members. Indeed, OSHA notes that NCSG’s quoted price for the initial installation of a roof anchor-system ($578) (Ex. 365) is consistent with OSHA’s estimate of combined up-front cost for (1) a roof anchor kit ($368), (2) monthly replacement of a worn roof anchor ($67) per company, (3) a fullbody harness ($118) for each of the sweeps, and (4) labor for installation of each new or replaced anchor ($18); Section H of this FEA demonstrates that these costs are feasible economically. In response to NCSG’s concerns, OSHA notes that final § 1910.28(b)(1) provides an exception to the duty for fall protection for work on residential roofs when an employer can 149 Initial equipment (capital) cost = roof anchor kit * no. of chimney sweep companies * (1¥industry baseline) + full body harness unit cost * no. of chimney sweep companies * sweeps needing harness * (1 ¥ industry baseline) = $368 * 6,000 * (100% ¥ 10%) + $118 * 6,000 * 2 * (100% ¥ 10%) = $3,261,600 Initial system installation = no. of chimney sweep companies * time to pre-install anchors * production worker loaded wage * (1 ¥ industrybaseline) = 6,000 * 0.5 hour * $19.39 * (100% ¥ 10%) = $52,581. Annual costs = roof anchor unit costs * no. of chimney sweep companies * monthly anchors per company * months per year + production worker loaded wage * lifeline productivity loss * sweep calls per day * workdays per year * no. of chimney sweep companies * (1 ¥ industry_baseline) = $66.95 * 6,000 * 1 * 12 + $19.39 * .083 hours * 3 * 250 * 6,000 * (100% ¥ 10%) = $4,820,400 + $6,572,621 = $11,393,021. Additional, relatively minor training and other costs related to hazard communication and rule familiarization bring the total annualized costs for chimney cleaning services to approximately $12.7 million. PO 00000 Frm 00348 Fmt 4701 Sfmt 4700 demonstrate that it is not feasible, or creates a greater hazard, to use guardrail, safety-net, or personal fall arrest systems. In such a case, the employer must develop and implement a fall protection plan that meets the requirements of 29 CFR 1926.502(k) and training that meets the requirements of 29 CFR 1926.503(a) and (c). Based on comment in the record by NCSG (Exs. 342; 365), OSHA determined that, for a small percentage of chimney-sweep jobs, chimney-sweep employers will find it infeasible to install roof anchors or other fall protection systems for technological, contractual, or other reasons. In these cases, the employer must develop a fall protection plan and provide training in accordance with the requirements in subpart M of the construction standards cited above. For this FEA, OSHA did not estimate the costs for fall protection plans and training because it believes that these costs will not exceed the equipment and labor costs described previously. Therefore, OSHA determined that the total cost for employers to protect their employees from fall hazards during chimney-sweep jobs ($12.8 million, or $2,128 per chimney-sweep company) is the maximum or worst-case value. Dockboards. Final § 1910.28(b)(4) would require installation of guardrails or handrails to protect employees on dockboards from falls of four feet or more to a lower level. Employers with dockboards having maximum heights that are less than four feet would not incur costs under this paragraph. This final provision exempts dockboards presenting a fall hazard of four feet up to 10 feet from this requirement when the employer uses the ramp exclusively for material-handling operations with motorized equipment. To qualify for the exception, employers must train their employees in accordance with § 1910.30. OSHA discusses the training costs for this provision later in this section. E:\FR\FM\18NOR7.SGM 18NOR7 ER18NO16.228</GPH> srobinson on DSK5SPTVN1PROD with RULES6 82840 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations srobinson on DSK5SPTVN1PROD with RULES6 ERG estimated that a substantial proportion of dockboards would either not incur costs due to height or would fall under the exception. Thus, OSHA believes that any costs incurred under this provision are unlikely to be substantial. In the proposal, OSHA requested, but did not receive, comment on the potential impacts associated with the duty to protect employees on dockboards from falls. Therefore, OSHA applied its preliminary estimate of nonsubstantial costs associated with dockboard fall protection in this final analysis. Fixed Ladders. To address fall safety on fixed ladders that extend more than 24 feet above a lower level, as specified under final § 1910.28(b)(9), OSHA estimates that, of the approximately 3.1 million fixed ladders over 20 feet in height (ERG, 2007, Table A.1), around 328,000 fixed ladders are between 24 and 30 feet high. Beginning 20 years after publication of the final rule, employers would face additional requirements for fixed ladders beyond those found in voluntary consensus standards (notably ANSI–ASC A14.3– 2008150) and the existing OSHA standards. Accordingly, employers must provide workers making climbs of 24 to 30 feet on fixed ladders 20 years after publication of the final standard with additional protections not currently provided by existing voluntary and mandatory industry standards. While much of general industry uses the affected ladders, this use occurs mainly in manufacturing and industrial buildings (105,000 ladders), silos (85,000), water tanks and water towers (53,000), ski lift towers (29,000), communications towers (25,000), and six other types of structures with fixed ladders (30,000) (see Ex. [OSHA Excel Workbook], Tab retrofit_28). The total for all affected fixed ladders is approximately 328,000 (after rounding). OSHA assigned costs for fall protection on fixed ladders as follows: • The Agency distributed ladders among NAICS codes according to the number of affected establishments in the industry represented by a NAICS code; for example, if the 85,000 silos with 150 In ANSI–ASC A14.3–2008, American National Standard for Ladders—Fixed—Safety Requirements, the following provisions lead OSHA to infer that the use of ladder safety systems for ladder heights above 24 feet has become accepted industry practice. 4.1.2 A cage or ladder safety system shall be provided where the length of climb is less that [sic] 24 feet but the top of the ladder is at a distance greater than 24 feet above ground level, floor, or roof (See Fig. 3). 4.1.3 A ladder safety system shall be provided where a single length of climb is greater than 24 feet . . . . VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 fixed ladders were primarily in NAICS 3111, Animal Food Manufacturing, OSHA distributed the costs of ladder safety systems among the 1,817 establishments in NAICS 3111; • OSHA averaged the cost of two leading ladder safety systems (DBI, Miller; average total upfront cost = $983, including two-hour installation by a production supervisor; the systems are 30 feet in length, and include the cable, cable sleeve, and carabiner); • The Agency estimated that fixed ladders have an average life of 30 years, that replacement of the fixed ladders would occur evenly across a 30-year period (10,921 ladders replaced each year by new ladders equipped with a safety system), and, with a phase-in date 20 years after publication, some ladders still would require replacement anywhere from one to 10 years after the 20-year phase-in date; • OSHA calculated first-year costs, then used a seven percent discount rate to annualize over 10 years; first-year costs total $8.5 million, and annualized costs total $1.2 million; • Billboards with fixed ladders greater than 20 ft. were each assigned a 30-ft. ladder safety system; initial costs of $20.1 million were annualized over ten years, resulting in annualized costs of $2.9 million. Therefore, the initial costs for fall protection on fixed ladders total $28.6 million, with annualized costs of $4.1 million. Outdoor advertising (billboards). This provision, § 1910.28(b)(10), covers the use of fixed ladders on billboards serviced by the outdoor-advertising industry. Based on discussions with the Outdoor Advertising Association of America, ERG estimated that the number of billboards with fixed ladders over 20 feet is approximately 20,500 (ERG, 2007). Employees climb billboards from one to more than 12 times a year, whenever they have to change the copy on the billboard. For the purposes of estimating costs, ERG assumed that an employee climbs each billboard an average of six times a year, totaling 123,000 climbs (20,500 billboards × six climbs). Per the requirement in § 1910.140(c)(18) that personal fall protection systems must be inspected before initial use during each workshift, each time an employee climbs a billboard, ERG estimated that the employee takes two minutes to inspect the ladder safety system (246,000 minutes or 4,100 hours).151 151 The costs for inspecting ladder safety systems prior to use in outdoor advertising are separate from the costs for overall inspection of fall protection systems discussed below under § 1910.140(c)(18). PO 00000 Frm 00349 Fmt 4701 Sfmt 4700 82841 Employees who climb billboards are generally in NAICS 5418 (Advertising and Related Services). In 2010, the average wage, including benefits, for this category was $22.76/hr. Thus, the estimated total cost to inspect ladder safety systems on billboards is approximately $93,000 per year. As specified in § 1910.28(b)(10)(ii), until the requirement for fall protection on fixed ladders in outdoor advertising becomes effective two years after publication of the final standard, employees who routinely climb fixed ladders on billboards must satisfy the criteria for qualified climbers found in § 1910.29(h), i.e., must undergo training, demonstrate the capacity to perform the necessary climbs safely, use a body harness equipped with an 18-inch rest lanyard, have both hands free of tools or material when ascending or descending a ladder, use a fall protection system upon reaching the work position. For the purpose of estimating costs, OSHA determined that all employees who climb billboards are qualified climbers and that the training for a qualified climber includes instruction on having both hands free while ascending or descending the ladder (see final § 1910.29(h)(2)). After the two-year phase-in period, employers will protect employees from fall hazards using on billboards using ladder safety systems, cages or wells, and personal fall arrest systems, which will require substantively identical training to the training specified by final § 1910.29(h)(2). For the PEA, OSHA assigned the costs to train a qualified climber under proposed § 1910.28(b)(10)(v) through § 1910.29(h); for this FEA, OSHA applied the same cost methodology (i.e., assigned costs to § 1910.29(h)). Low-slope roofs. Final § 1910.28(b)(13) standard requires employers to protect employees working on low-sloped roofs and exposed to fall hazards that are four feet (1.2 m) or more to lower levels. If the employee is working less than six feet (1.8 m) from the edge of the roof, the employer must use a guardrail system meeting the requirements of § 1910.29 of the subpart, a travel restraint system meeting the requirements of subpart I of the part, or a personal fall arrest system meeting the requirements of subpart I of the part. If the employee is working at a distance more than six feet (1.8 m) but less than 15 feet from the roof’s edge, employers must protect the employees using a guardrail system meeting the requirements of § 1910.29 of the subpart, a travel restraint system meeting the requirements of subpart I of this part, a personal fall arrest system E:\FR\FM\18NOR7.SGM 18NOR7 82842 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations srobinson on DSK5SPTVN1PROD with RULES6 meeting the requirements of subpart I of this part, or, if the work is infrequent and temporary, work in a designated area meeting the requirements of § 1910.29 of the subpart. Finally, if the work is taking place 15 feet or more from the edge of the roof, the employer is not required to provide fall protection or use a designated area provided the work is both infrequent and temporary and the employer implements and enforces a work rule prohibiting employees from going within 15 feet (4.6 m) of the roof edge without using fall protection in accordance with paragraphs (b)(13)(i) and (ii). To estimate compliance costs for this provision, OSHA determined that the most significant incremental burden involves inspections or assessments of rooftop conditions prior to performing any work on the roof. The Agency assumed that most work on rooftops is infrequent and temporary, and occurs in areas that are six to 15 feet from the roof edge, thereby eliminating the need for guardrails, travel restraint systems, and personal fall arrest systems, and using designated areas instead. Similarly, for work performed 15 feet (4.6 m) or more from the roof edge, OSHA anticipates that most employers will adapt, at minimal cost, existing company work rules and training programs to comply with the final rule. As discussed earlier in this Preamble, OSHA’s choice of regulatory text for § 1910.28(b)(13)(iii) makes the final rule consistent with OSHA policy specified in a series of Agency interpretations of the construction fall protection standard for work performed 15 feet or more from the edge of a roof (see, e.g., letter to Mr. Anthony O’Dea (12/15/2003);152 letter to Mr. Keith Harkins (11/15/2002);153 letter to Mr. Barry Cole (5/12/2000) 154). For work six feet or less from the roof edge with extensive fall exposure, and for work that is less than 15 feet from the edge that is not infrequent and temporary, OSHA believes that, where feasible, the majority of employers currently provide conventional fall protection (guardrails, travel restraint systems, or personal fall arrest systems) and therefore compliance costs will be insubstantial. OSHA bases this estimate in part because the final rule is 152 OSHA letter to Mr. O’Dea available at: https:// www.osha.gov/pls/oshaweb/owadisp.show_ document?p_table=INTERPRETATIONS&p_ id=24682. 153 OSHA letter to Mr. Harkins available at: https://www.osha.gov/pls/oshaweb/owadisp.show_ document?p_table=INTERPRETATIONS&p_ id=24552. 154 OSHA letter to Mr. Cole available at: https:// www.osha.gov/pls/oshaweb/owadisp.show_ document?p_table=INTERPRETATIONS&p_ id=24802. VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 consistent with provisions in the construction standard that require employers to provide conventional fall protection for workers exposed to unprotected sides and edges, and most leading edges (§ 1926.501(b)(1) and (2)). In addition, OSHA recognizes that awareness of existing consensus standards on fall protection—including ANSI A1264.1–2007, Safety Requirements for Workplace Walking/ Working Surfaces and Their Access; Workplace, Floor, Wall and Floor Openings; Stairs and Guardrail Systems—have heightened use of conventional fall protection at roof perimeters and will minimize any incremental costs associated with final § 1910.28(b)(13). Assuming one affected rooftop per affected establishment, OSHA estimated that twice per year, with the exception of establishments in agriculture, forestry, fishing, and hunting, affected employers would direct a production worker to conduct a five-minute assessment of all fall-related conditions on the low-slope roofs of facilities (the inspection time includes any follow-up assessment addressing safety concerns). Summing these labor costs across all affected NAICS codes, OSHA estimates that employer expenditures for inspection of low-slope roofs will total $34.2 million annually in this FEA. A small percentage of roof-top inspections are expected to reveal to employers the need for conventional fall protection near unprotected sides and edges. Basing calculations on 2005 OSHA inspection data, OSHA estimates that, depending on the NAICS sector, the probability of identifying an unguarded hazard during a rooftop climb and inspection will range from 0.07% to 0.28%. Applying these probabilities to the number of inspections (described above) and assuming that any enhancement of fall safety will be roughly equivalent to a fifteen-minute labor expense in the installation of an anchor ($67) suitable for use with a personal lifeline and fullbody harness (fully supplied at the baseline), OSHA estimates that the costs for addressing hazards identified in rooftop climbs and inspections will total $1.85 million. (See Ex. [OSHA Excel Workbook], Tab annual_28.) Summing employer expenditures for roof inspections and the costs of correcting the hazards identified in those inspections, total costs will be approximately $36.1 million. Slaughtering facility platforms. Final § 1910.28(b)(14) is a new provision not in the proposal that requires employers to protect each employee on the unprotected working side of a PO 00000 Frm 00350 Fmt 4701 Sfmt 4700 slaughtering facility platform that is four feet (1.2 m) or more above a lower level from falling by using guardrails or travel restraint systems. When the employer can demonstrate that using guardrail systems or travel restraint systems is not feasible, employees may perform the work without guardrails or a travel restraint system provided that the work operation for which guardrails or travel restraint systems are infeasible is in process, the employer limits access to the platform to authorized employees, and trains the authorized employees in accordance with § 1910.30. To derive compliance costs for this provision, OSHA estimated that, of the 3,817 establishments in NAICS 3116, Animal slaughtering and processing, 25 percent are currently in compliance. The Agency based this estimate on comments by the United Food and Commercial Workers at the OSHA public hearing (Ex. 329 (1/20/2011), pp. 63, 90) indicating that a few large meatpacking plants already installed travel restraint systems for fall protection on slaughter (kill) platforms. OSHA believes that, while the meatpacking plants identified in the rulemaking record determined that travel restraint systems are technologically feasible, other affected plants will choose instead to install guardrails at a cost that is potentially lower than the cost of travel restraint systems. Therefore, the Agency estimated that, on average, 10 platforms per establishment will need fall protection and that each establishment will install two portable guardrails, at an initial cost of $256 per guardrail, on the unprotected working side of slaughter-facility platforms stations, with the installation taking 10 minutes of labor per guardrail (production worker wage = $17.19/hour). OSHA estimates that initial costs for 2,863 establishments in NAICS 3116 will total $14.7 million. Annualized over 10 years at a seven percent discount rate, compliance costs will sum to a little under $2.1 million per year for employers in animal slaughtering and processing facilities. Walking-working surfaces not otherwise addressed. In final § 1910.28(b)(15), OSHA introduces a duty to provide fall protection for surfaces not otherwise addressed in this section. Among the surfaces affected by this catch-all paragraph are stepbolts. OSHA determined that this requirement for protection on stepbolts will primarily affect establishments in NAICS 51, Information, and NAICS 7113, Promoters of performing arts, sports, and similar events, and that the preferred fall protection will be ladder E:\FR\FM\18NOR7.SGM 18NOR7 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations srobinson on DSK5SPTVN1PROD with RULES6 safety systems. For NAICS 51, OSHA estimated there were 97,000 step-bolt structures requiring ladder safety systems across 16 four-digit NAICS industries (6,063 structures per NAICS industry). After accounting for significant baseline use of ladder safety systems (80 percent in OSHA’s estimation), the Agency assigned costs for the purchase and installation of these systems at $908/unit. Similarly, for NAICS 7113, OSHA assigned costs for the purchase and installation of ladder safety systems ($908/unit) for 2,613 structures with stepbolts (the estimated baseline use of ladder safety systems was again 80 percent). Annualized over 10 years at a seven percent discount rate, costs were $2.7 million. Fall Protection Systems and FallingObject Protection—Criteria and Practices (§ 1910.29) For proposed § 1910.29, OSHA determined that two requirements would impose significant new burdens on employers. Below are the details of OSHA’s approach to estimating costs for this section of the standard. Inspection of manila, plastic, or synthetic rope. The final regulatory text for § 1910.29(b)(15) requires inspection of manila, plastic, or synthetic rope used as rails and specifies that employers conduct such inspections as frequently as necessary to ensure that the rope meets the strength requirements specified in that section. The estimated inspection cost, then, would be the product of the: • Number of guardrail systems; • Proportion that use manila, plastic, or synthetic rope used as toprails or midrails; • Number of inspections per year; • Time required for each inspection (hours); and • Average wage per inspector per industry ($/hr.). For the PEA, OSHA lacked data on the proportion of guardrail systems that use manila, plastic, or synthetic rope as top rails or midrails. However, OSHA considered it likely that employers would include the inspection of these alternate materials for toprails and siderails in the inspections performed under § 1910.22, the general inspection requirements for walking-working surfaces for safety. Therefore, OSHA allocated no additional costs to this provision in the PEA. For this FEA, OSHA estimated that a small percentage of employers would identify defective rope (in rail systems) as a result of the inspections implied by final § 1910.29(b)(15) and that these employers would purchase and install VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 replacement rope. At $2.12 per foot for an estimated 20-foot (rescue-grade) guardrail rope with a working load limit of 900 lb. to 1,195 lb., and after accounting for baseline compliance with current floor guarding regulations (see Ex. [OSHA Excel Workbook], tab annual_29_b), and with an installation time of 10 minutes, OSHA estimates that the costs for repair or replacement of guardrail rope will total $0.67 million. Outdoor advertising. Final § 1910.29(h) concerns the use of qualified climbers in the outdooradvertising/billboard industry. Qualified climbers are an option available only to this industry for two years following publication of the final standard. Final paragraph (h) requires that qualified climbers: • Be physically capable of performing the climbing duties (§ 1910.29(h)(1)); • Undergo training or an apprenticeship program (§ 1910.29(h)(2)); • Be retrained as necessary (§ 1910.29(h)(2)); • Have the skill necessary to climb ladders, as demonstrated through formal classroom training or on-the-job training, and personal observation (§ 1910.29(h)(3)); and • Perform climbing duties as one of their routine work activities (§ 1910.29(h)(4)); For the purposes of estimating costs, OSHA in the PEA assumed that 90 percent of the employees in the outdoor advertising industry who climb already had training as qualified climbers. Thus, there would be one-time costs associated with qualifying the remaining 10 percent of climbers. OSHA annualized these costs over 10 years at a rate of seven percent. The industry incurs annual costs for: • Classroom training of new employees (§ 1910.29(h)(2) and (h)(3))); • Retraining of employees as necessary (§ 1910.29(h)(2)); • Employer performance observation (§ 1910.29(h)(3)); and • Administrative costs to document training and retraining. For calculating one-time costs in the PEA, OSHA estimated that 713 out of 7,132 of the employees (10 percent) who perform construction, installation, maintenance, and repair operations in NAICS 5418 (Advertising and related services) would need to undergo training to be qualified climbers. The National Association of Tower Erectors developed a climber-training standard with varying levels of expertise (authorized, competent, and competent rescuer), but does not offer training itself (NATE, 2006). The OSHA Training PO 00000 Frm 00351 Fmt 4701 Sfmt 4700 82843 Institute offers three-day and four-day training courses in fall protection, the fees for which range from $549 to $795. Commercial courses in fall protection reviewed by ERG on the internet in the mid-2000s ranged from one to five days with costs ranging from $500 to $2,500 per course (ERG, 2007). The prices include materials and the trainer’s time. For the purpose of estimating costs, OSHA in the PEA estimated that employers could meet the requirements in the proposed standard by sending employees to a four-day training course at a cost of $1,500 for the course and $684 for the employee’s time (based on an average wage of $21.39/hour for 32 hours), for a total of $2,184. Furthermore, the Agency estimated that the administrative tasks to document the training would require 15 minutes of a supervisor’s time ($36.22/hour) for every 10 employees trained. OSHA in the PEA estimated that the one-time cost to qualify the estimated 713 climbers would be $1.56 million, and the annualized cost would be $0.22 million per year.155 For this FEA, the Agency updated the employee’s wage rate ($22.76/hour), the supervisor’s wage rate ($36.07/hour), and the number of affected employees (10 percent of 8,000, or 800 employees), resulting in an estimated one-time cost of $1.78 million, with an annualized cost of $0.25 million at a seven percent discount rate over 10 ten years. For the purposes of estimating the annual costs associated with this provision, OSHA, consistent with the method presented in the PEA, applied the following unit estimates and assumptions: • A supervisor observes each of the estimated 8,000 qualified climbers for 15 minutes per quarter or 1 hour per qualified climber per year; • A supervisor spends 15 minutes per year per qualified climber on administrative tasks for training and retraining; • Ten percent of the climbers need retraining; • Retraining consists of an eight-hour refresher course at a cost of $500; and • The turnover rate is 47 percent; • In the absence of this rule, no newly-hired workers would receive training that is compliant with the rule’s requirements. Based on these estimates and assumptions, OSHA determined that the annual cost of this provision would be $12.2 million, of which $11.6 million 155 Employers may offer on-the-job training, and would presumably do so if the costs are less than the costs of commercial training. Thus, the estimated costs presented here may be conservative. E:\FR\FM\18NOR7.SGM 18NOR7 82844 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations srobinson on DSK5SPTVN1PROD with RULES6 involves training new hires.156 OSHA requested comment in the proposal on the assumptions and unit-cost estimates that it applied in its analysis of costs for qualified-climber training. In a posthearing comment, the Outdoor Advertising Association of America (OAAA) provided data on the estimated number of sign structures (120,000 units), professional climbers (1,800 climbers), and climbs on fixed ladders (14,400 climbs per day) for OAAA member companies (Ex. 260). Although OAAA’s figure for the number of climbers (1,800) is considerably lower than OSHA’s estimate (8,000), OSHA notes that not all outdoor advertisers are OAAA members. Without further data on the number of professional climbers in the industry, OSHA was not able to further refine its preliminary estimate that all employees in NAICS 5418, Advertising and Related Services, involved with construction, installation, maintenance, and repair operations would be affected by the requirement for qualified-climber training. Therefore, other than applying the Census-related update from 7,132 affected workers to 8,000 affected workers, OSHA applied the PEA methodology to this FEA without change. Training Requirements (§ 1910.30) Fall hazards and equipment hazards. Final § 1910.30(a) addresses training with respect to fall hazards for employees who use personal fall protection systems or who must receive the training specified elsewhere in subpart D before the employer exposes employees to a fall hazard. This provision requires that a qualified person conduct the training and the training: • Include the types of fall hazards found in the workplace; • Describe the procedures employees are to follow to minimize these hazards; • Address the correct and safe procedures for installing, inspecting, operating, maintaining, and disassembling the personal fall protection systems the employee uses; and • Address the correct and safe use of personal fall protection systems and equipment specified by this section, including, but not limited to, proper hook-up, anchoring, and tie-off techniques, and methods of equipment inspection and storage, as specified by the manufacturer. Final § 1910.30(b) addresses training with respect to equipment hazards. In 156 OSHA assumes that qualified climbers could not transfer their training from one employer to another employer. VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 particular, employers must train employees in the proper: • Care, storage, use, and inspection of equipment covered by subpart D before their use in accordance with recognized industry practices and manufacturer’s recommendations; • Placement and securing of dockboards to prevent unintentional movement; • Rigging and safe use of rope descent systems; and • Set-up and use of designated areas. OSHA included the costs for training required under final § 1910.27(b)(2) (Use of rope descent systems), § 1910.28(b)(1) (Unprotected sides and edges), and § 1910.28(b)(4) (Dockboards) in the cost estimate for final § 1910.30. In a previous analysis, ERG estimated the number and percent of employees by industry that use personal protective equipment (PPE) such as body belts and body harnesses (ERG, 1999; Ex. 318). For the PEA, OSHA applied these industry-specific percentages to the number of at-risk employees in 2007 to estimate the number of employees that need the type of training required under § 1910.30. For this FEA, OSHA applied the preliminary industry-specific PPE percentages to the number of at-risk employees to derive an estimate of employees requiring PPE training. Some companies already provide this training. OSHA used data from the NOES survey (described above) to estimate, by NAICS code, the level of training already provided. For the purpose of estimating costs in the PEA, OSHA assumed that employees not already trained and using personal fall protection systems would undergo six hours of training on fall hazards and equipment hazards to address the requirements in proposed § 1910.30(a) and (b)(1). For this FEA, OSHA applied the PEA’s per-employee estimate of six hours of training for determining the costs of final § 1910.30(a) and (b)(1). In the PEA cost model, OSHA assigned employees in the utility, sewage, and communications industry sectors (NAICS 2211–2213 and 5121– 5191) an additional half-day of training to specifically address the proposed requirements for step bolts (for a total of 10 hours of training). Similarly, the Agency assigned employees in NAICS codes 4881 through 4884 (support activities for transportation by air, rail, water, and road, respectively) a half-day of training specifically to address requirements for dockboards. OSHA assigned window washers, found in NAICS 5617 (Services to buildings and dwellings), an entire day of training on rope descent systems (for a total of 14 hours of training). OSHA applied these PO 00000 Frm 00352 Fmt 4701 Sfmt 4700 preliminary training-cost estimates to this FEA. In addition, for this FEA, OSHA applied an hour of training on the use of fall protection equipment to employees in every NAICS code, except those codes listed immediately above, for which OSHA’s PPE cost survey (ERG, 1999) indicated the presence of employees who use fall protection equipment. As specified in the final standard, a qualified person provides the required training. For the purpose of estimating costs, OSHA (as it did in the PEA and also in this FEA) assumed that the qualified person conducts the training at the workplace for a fee of $500 per day. The training fee includes instruction, travel, lodging, and per diem expenses, as well as hand-out materials. Employers incur this fee for every 10 employees (i.e., a class size of 10 employees). OSHA estimates that a supervisor would spend 15 minutes per employee per year performing administrative tasks such as maintaining and updating training records. The estimated total initial one-time cost for final § 1910.30(a) and (b) is $123.6 million. The annualized cost over 10 years at a discount rate of seven percent is $17.6 million. There also is an annual cost for training new employees on PPE and dockboards. OSHA applied BLS hires rates to estimate the annual number of new employees requiring training;157 the estimated annual cost for this requirement is $54.6 million. Ameren Corporation appeared to believe that OSHA’s time estimates of course durations used in its cost algorithms for training implied that the Agency would enforce minimal time standards for training. Ameren stated, ‘‘There should be no time requirement. This moves away from performance based completely. The training should 157 The BLS 2007 hires rates applied in the analysis are as follows: Mining and Logging (NAICS 1133, 2111)—45.4 percent; Durable Goods Manufacturing (NAICS 321, 33)—29.8 percent; Nondurable Goods Manufacturing (NAICS 31, 322, 323, 324, 325, 326)—36.9 percent; Transportation, Warehousing, and Utilities (NAICS 22, 48–49)— 36.3 percent; Wholesale Trade (NAICS 42)—34.9 percent; Retail Trade (NAICS 44–45)—58.8 percent; Information (NAICS 51): 31.2 percent; Finance and Insurance (NAICS 52): 31.7 percent; Real Estate and Rental Leasing (NAICS 53)—47.6 percent; Professional and Business Services (NAICS 54– 56)—63.1 percent; Educational Services (NAICS 61)—30.7 percent; Health Care and Social Assistance (NAICS 62)—35.4 percent; Arts, Entertainment, and Recreation (NAICS 71)—81.8 percent; Accommodation and Food Services (NAICS 72)—82.8 percent; and Other Services (NAICS 81)—41.9 percent. The annual number of affected new employees totals 233,328 within 6.9 million affected establishments, or 0.03 employees per affected establishment. E:\FR\FM\18NOR7.SGM 18NOR7 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations srobinson on DSK5SPTVN1PROD with RULES6 cover the elements of all the fall protection systems that an employee will encounter and the uses, restrictions, etc. of each’’ (Ex. 189). In response, OSHA notes that the time estimates used in its cost analyses for training and other requirements for a safety program are only to illustrate the Agency’s estimates of typical or average times to complete these requirements, and that actual times may vary substantially from these estimates. Retraining. Final § 1910.30(c) concerns the need to retrain employees whenever the employer has reason to believe that retraining is necessary for safety purposes. This need can occur because of changes in the workplace, fall protection systems, or fall protection equipment that render previous training invalid; or finding that employee knowledge or use of fall protection systems or equipment is no longer adequate. In the PEA, OSHA assumed that retraining already occurs at establishments that have training programs in place. For the remaining employees, OSHA assumed that five percent require retraining each year. OSHA estimated that the retraining course consists of a one-hour supervisor-led refresher course that focuses on the areas in which the employee is deficient. For this FEA, the estimated annual costs for retraining total $2.0 million. b. Estimated Compliance Costs by Provision in the Final Standard for Subpart I Hazard assessment. Final § 1910.132(d) requires an employer to assess the workplace to determine if hazards are present or are likely to be present. In the PEA, OSHA assumed that the time needed by an employer to walk around the workplace, assess the potential hazard, and determine the appropriate PPE and training needed by the employees would vary with the size of the establishment. OSHA used the number of employees as an indicator of establishment size. OSHA estimated the time required for the hazard assessment as: • 1 to 19 employees: 1 hour • 20 to 99 employees: 2 hours • 100 to 499 employees: 3 hours • 500+ employees: 4 hours Furthermore, OSHA assumed: • All establishments in the forestry, oil and gas, utility, manufacturing, and transportation sectors (NAICS 1131 through 3399 and 4811 through 4931) would perform a hazard assessment because of the high level of risk involved in these sectors; • Half the establishments in wholesale and retail sales (NAICS 4231 VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 through 4543) would have slip, trip, or fall hazards such that they would be required to perform a hazard assessment; • One-quarter of the establishments in the service industries (NAICS 5111 through 8139) would have slip, trip, or fall hazards such that they would be required to perform a hazard assessment; and • According to the original Regulatory Impact Analysis for PPE and as reported in the 2013 Information Collection Request for PPE in general industry, 47 percent of establishments conduct the initial hazard assessment as a usual and customary practice.158 This analysis resulted in a one-time cost of $79.0 million in the PEA, with an annualized cost of $11.3 million at seven-percent discount rate over 10 years. For this FEA, after adjusting for differences in wages and industry size and composition since the publication of the NPRM, one-time costs for the hazard-assessment requirement were $85.2 million, with annualized costs of $12.1 million. In addition to the costs for assessing hazards in walking-working environments where the use of fall protection will be necessary, OSHA anticipates that employers will incur expenditures to address any hazards identified during the assessments. According to 2005 OSHA inspection data, the likelihood of a compliance violation of current Subpart D ranges from 0.24 percent (of inspections) for the Finance and Insurance industry sector to 0.81 percent for Wholesale Trade sector. Multiplying these noncompliance rates by the annual number of new employers entering business (determined by NAICS code as the product of a 7 percent establishment turnover rate and the number of establishments) and the cost of a typical correction—the purchase and tenminute installation of a 6-ft. portable guardrail ($256 per guardrail + labor)— OSHA estimates that the costs for correcting hazards identified by the assessments required under § 1910.132(d) will total $0.52 million. (See Ex. [OSHA Excel Workbook], tabs Compliance and Hazard Assessment & Training.) Summing the costs for hazard assessment and hazard correction implied by compliance with final § 1910.132(d), OSHA estimates that total 158 See the Information Collection Request For Personal Protective Equipment (PPE) For General Industry (29 CFR Part 1910, Subpart I)) Office of Management and Budget (OMB) Control No. 1218– 0205 (January 2013), p. 5. Docket No. OSHA–2013– 0004, Document ID 0002. PO 00000 Frm 00353 Fmt 4701 Sfmt 4700 82845 costs for this provision will be approximately $12.7 million. Ameren Corporation questioned whether, in light of existing OSHA standards, OSHA’s assignment of costs for this provision was necessary. Ameren stated, ‘‘This seems to be redundant whereas currently assessing fall protection needs is performed in accordance to the specific standard in which it is addressed’’ (Ex. 189). In response, OSHA notes that, prior to the publication of the fall protection requirements in final subpart I, no standard explicitly requiring hazard assessment for fall protection in the workplace existed for general industry; therefore, OSHA must account for the incremental compliance burden resulting from these requirements. PPE training. Final § 1910.132(f) requires that employers train employees before they use PPE in the workplace. OSHA included the costs for this final provision in the costs for § 1910.30, described earlier. PPE inspection. Final § 1910.140(c)(18) requires employers to inspect that personal fall protection systems before the initial use during each work shift for mildew, wear, damage, and other deterioration, and remove defective components from service. For the purposes of estimating costs, OSHA in the PEA assumed that on average each production employee who requires fall protection wears a personal fall protection system regularly, performs the required inspection once a week at the beginning of every workweek, works 50 weeks per year, and takes one minute to inspect the fall protection system (wage rates varied across four-digit NAICS codes). Beginning with a baseline estimate of the number of workers using fall protection (2.1 million employees), OSHA accounted for current PPE inspection (‘‘current compliance’’) by applying results from the NIOSH NOES database. In its use of that survey, OSHA regarded the percentage of employers conducting safety training as a reasonable proxy for PPE inspection. Reducing the affected workforce by the percentage currently conducting PPE inspection, OSHA derived a final estimate of 362,000 affected employees. OSHA’s estimated cost for this provision in the PEA was approximately $7.3 million per year; for this FEA, the Agency estimated the cost to perform the inspection to be $10.2 million a year. Inspection of personal fall arrest systems will likely lead to the discovery of defective PPE, resulting in costs to repair or replace out-of-compliance PPE. OSHA expects that most employers will E:\FR\FM\18NOR7.SGM 18NOR7 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations srobinson on DSK5SPTVN1PROD with RULES6 opt to replace faulty PPE; to simplify the calculation of costs, OSHA conservatively chose one of the most expensive types of PPE needing replacement, a full-body harness ($118 per unit) and applied a non-compliance rate to the percentage of employers who at the baseline (i.e., lacking NIOSH NOES training) are currently not conducting PPE inspection. To estimate the rate of non-compliance, OSHA identified current Subpart M, Fall Protection, § 1926.502, Fall protection systems criteria and practices, in the construction CFR, as the standard analogous to final § 1910.140. The OSHA inspection database for the most recent fiscal year (2015) reports that of 38,029 inspections in NAICS 23, Construction, 544 inspections, or 1.43 percent, resulted in citations for violation of § 1926.502.159 Applying this PPE criteria violation rate in Construction, 1.43 percent, to the number of affected establishments in general industry, and multiplying that product times the unit cost of harnesses, OSHA estimates that the cost for replacing defective PPE under § 1910.140 will total $0.85 million. Summing the costs for PPE inspection and PPE replacement, OSHA estimates that employers will incur $11.0 million in new costs associated with the final provisions under § 1910.140. 159 See https://www.osha.gov/pls/imis/industry profile.stand?p_esize=&p_stand=19260502&p_state =FEFederal&p_type=2 and https://www.osha.gov/ pls/imis/industry.search?p_logger=1&sic=&naics= 23&State=All&officetype=All&Office=All&end month=10&endday=01&endyear=2014&start month=09&startday=30&startyear=2015&owner=& scope=&FedAgnCode=. 160 For example, for NAICS 2211: Electric power generation, transmission and distribution, in the Utility industry sector, the cost calculation was as follows: ((1,529 very small establishments * 0.17 hours) + (152 small establishments * 0.25 hours) + (30 mid-size establishments * 0.33 hours) + (44 large establishments * 0.5 hours)) * ($54.24 production worker supervisor hourly wage for VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 Rule Familiarization For this final economic analysis, OSHA has added an estimate for the compliance expenditures incurred by employers to gain familiarity with the final rule. OSHA estimated costs for rule familiarization by applying the methodology described above for Hazard Assessment and Training (§ 1910.132(d)), shown in the following exhibit. All other training costs associated with the final standard are addressed above under § 1910.30. For the industries with less than 100 percent share needing hazard PO 00000 Frm 00354 Fmt 4701 Sfmt 4725 assessment, OSHA applied the estimated percentage to the time assumptions shown in Exhibit V–3. For example, for a very small (<20 employees) retail establishment: 50% needing familiarization * 10 minutes = 5 minutes per employer. For the industries where 100 percent of establishments will conduct hazard assessment, the average unit time per employment range (1–19, 20–99, etc.) shown in the exhibit was multiplied times the entire number of number of establishments whose employment falls within the range, by four-digit NAICS industry.160 All affected NAICS industries and establishments were costed. Labor costs were calculated using supervisor loaded wage, by NAICS industry. Costs for rule familiarization are expected to total $28.5 million in first-year costs, or $4.1 million per year when annualized over ten years. NAICS 2211) = $17,620. Analogous calculations were performed for each industry and summed to produce a total of $28.5 million in first-year costs. See Ex. [OSHA Excel workbook], tab Rule Familiarization. E:\FR\FM\18NOR7.SGM 18NOR7 ER18NO16.229</GPH> 82846 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 7. Cost Summary srobinson on DSK5SPTVN1PROD with RULES6 Tables V–25 through V–27 summarize the costs by industry for each paragraph in the final standard. Table V–25 lists the first-year costs, which employers incur once to comply with the new requirements. For evaluating economic impacts, OSHA annualized these onetime costs over a 10-year period at a discount rate of 7 percent. Total firstyear costs for final subparts D and I are $319.5 million, with annualized costs for the first year of $45.5 million. Table V–26 lists the recurring annual costs, such as inspections, training new employees, and maintaining safe conditions when fall hazards remain; OSHA estimates these costs to be $259.0 million. Table V–27 lists the annual costs by industry, which include the sum of the recurring costs and the annualized one-time costs; OSHA estimated these costs at $305.0 million. Listing annualized costs in descending order by section of the rule, OSHA projects that the most costly provisions address training programs ($74.2 million), scaffolds and rope descent systems ($71.6 million), duty to have fall protection and falling-object protection ($55.9 million), and general requirements ($33.2 million). Of these final costs, the most significant change in costs from the PEA involve the costs associated with the duty to have fall protection and falling-object protection VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 (§ 1910.28) ($55.9 million in FEA vs. $0.09 million in the PEA) because the strengthened requirements for fixed ladders, roof edges, slaughtering platforms, and step bolts lead to additional employer expenditures for equipment and labor. For the category with the second largest compliance costs, scaffolds and rope descent systems, the final standard provides greater specificity than the proposal regarding the need for proper rigging, including sound anchorages and tiebacks. The final rule at § 1910.27(b)(1)(i) and (ii) states that before any rope descent system is used, the building owner must inform 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 (22.2 kN) in any direction, for each employee attached and, moreover, that the employer must ensure that no employee uses any anchorage before the employer has obtained written information from the building owner that each anchorage meets the requirements of paragraph (b)(1)(i). Finally, the employer must keep the information on building anchorages for the duration of the job. The information must be based on an annual inspection conducted by a qualified person, with certification of each anchorage performed by a qualified person, as necessary, but at least every 10 years. As PO 00000 Frm 00355 Fmt 4701 Sfmt 4700 82847 described earlier in this cost analysis, OSHA assumed that building owners and employers would comply with this requirement by scheduling periodic inspections and certifications of building anchorages. Because of the hazards associated with cleaning windows of office buildings and other tall structures while suspended on scaffolds or other devices (see Table V–6 for the number of reported fatalities in NAICS 561, Administrative and Support Services), OSHA raised the issue of proper safety during window cleaning in the 2003 notice that reopened the rulemaking record, and in the 2010 NPRM. In those notices, OSHA requested comment on the hazards associated with window cleaning and the safe practices recommended and implemented for the use of rope descent systems (68 FR 23534; 75 FR 28862). OSHA based its analysis of the costs of ensuring sound anchorages and rigging, described above, as well as the Agency’s analysis of the costs for protecting workers on rope descent systems and suspended scaffolds, on the experiences and observations of the industry representatives who responded to OSHA’s request for comment in 2003 and in OSHA’s 2010 NPRM; therefore, the Agency believes that the record fully supports this cost analysis. BILLING CODE 4510–29–P E:\FR\FM\18NOR7.SGM 18NOR7 srobinson on DSK5SPTVN1PROD with RULES6 82848 VerDate Sep<11>2014 Jkt 241001 One-Time Compliance Costs §1910.22 §1910.24 §1910.27 §1910.28 §1910.29 §1910.30 PO 00000 Fall Subpart 1- Frm 00356 Step 11 Title Agriculture, Forestry, Fmt 4701 Fishing, and Hunting Bolts and and Rope Personal Rule RequireNAICS Scaffolds General Protection Manhole Descent Have Fall Criteria and Training Protective Familiari- Duty to Systems ments Ladders Steps Systems Protection Practices Program Equipment zation Total $0 $3,499 $0 $0 $0 $0 $82,299 $233,034 $88,181 $407,014 $38,800 $2,647,823 Sfmt 4725 21 Mining $0 $77,574 $0 $0 $0 $0 $2,227,998 $303,452 22 Utilities $0 $255,214 $0 $0 $1,515,369 $0 $5,845,491 $1,340,822 $122,655 $9,079,550 Manufacturing $0 $1,090,980 $0 $0 $19,738,717 $0 $18,101,934 $10,819,814 $7,441,716 $57,193,161 Wholesale Trade $0 $1,041,883 $0 $0 $0 $0 $22,018,269 $7,190,500 $451,397 $30,702,049 Retail Trade $0 $2,269,667 $0 $0 $0 $0 $20,152,641 $19,493,268 $3,438,156 $45,353,732 Transportation $0 $247,720 $0 $0 $22,623 $0 $5,208,568 $7,538,873 $9,129,714 $22,147,499 51 Information $0 $960,867 $0 $0 $19,289,763 $0 $16,927,032 $1,820,813 $155,354 $39,153,828 52 Finance and Insurance $0 $42,339 $0 $0 $0 $0 $394,333 $7,689,196 $505,346 $8,631,214 53 Real Estate $0 $1,122,286 $0 $0 $0 $0 $2,581,443 $3,290,153 $100,622 $7,094,505 $0 $411,344 $0 $0 $20,628,640 $1,783,330 $7,431,045 $6,354,017 $1,653,497 $38,261,872 $0 $167,126 $0 $0 $0 $0 $3,702,958 $881,601 $250,475 $4,998,419 31-33 42 E:\FR\FM\18NOR7.SGM 44-45 18NOR7 54 48-49 Professional, Scientific, and Technical Services Management of 55 Companies and Enterprises ER18NO16.230</GPH> §1910.23 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 23:45 Nov 17, 2016 TableV-25 First-Year Costs for the Final Standards on Walking-Working Surfaces by Paragraph and Industry srobinson on DSK5SPTVN1PROD with RULES6 VerDate Sep<11>2014 Jkt 241001 One-Time Compliance Costs Frm 00357 Step Bolts Scaffolds General and and Rope Duty to Protection Systems Require- Manhole Descent Have Fall Criteria and Training Protective Steps Systems Protection Practices Program $0 $3,250,000 $3,313,958 $0 Fmt 4701 PO 00000 §1910.22 §1910.23 §1910.24 §1910.27 §1910.29 §1910.28 §1910.30 Fall NAICS Title Subpart 1Personal Sfmt 4725 Equipment Rule Familiarization Total $10,254,174 $2,595,784 $1,424,800 $22,026,107 E:\FR\FM\18NOR7.SGM ments Ladders $0 $1,187,391 Educational Services $0 $298,035 $0 $0 $1,557 $0 $0 $714,625 $1,090,094 $2,104,311 Health Care $0 $43,697 $0 $0 $0 $0 $1,079,226 $5,301,379 $1,087,208 $7,511,510 $0 $198,390 $0 $0 $1,255,837 $0 $0 $808,054 $723,482 $2,985,763 $0 $193,370 $0 $0 $0 $0 $2,026,529 $4,709,513 $331,714 $7,261,126 $0 $0 $0 $5,528,678 $4,117,553 $437,534 $11 ,940,569 Administrative and 56 Support, Waste Management and Remediation Services 61 62 Arts, Entertainment, and 71 Recreation Accommodation and 72 Food Services 81 Other Services 18NOR7 l';iSJ . h:')!'.');••.·.'~'~ar~.·j/,·••· ~·,;·.·.. ''' ''"·;,', $0 ... $1,856,804 ~ c$1'1'.468:~11'1. ·..,.~,-~~" ,. .....""""""' $0 $Sis'rsB"46'3 --A,,,;::,,-, 'i_;-:''; . -:~ '" Source: U.S. Department of Labor, OSHA, Directorate of Standards and Guidance, Office of Regulatory Analysis-Safety. {i:~-i ! ··"~~;,;.;;·;;~'); ., . $2a4idt46 ':•''>.;,Y,: .•.• ••,;:-~· -~-~ Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 23:45 Nov 17, 2016 TableV-25 First-Year Costs for the Final Standards on Walking-Working Surfaces by Paragraph and Industry (continued} 82849 ER18NO16.231</GPH> srobinson on DSK5SPTVN1PROD with RULES6 82850 VerDate Sep<11>2014 Recuning Compliance Costs §1910.22 §1910.23 §1910.27 §1910.28 §1910.29 §1910.30 Jkt 241001 Fall Subpart 1- PO 00000 Step Bolts NAICS Title and Rope Duty to Systems Personal Rule Manhole General Scaffolds and Protection Descent Have Fall Criteria and Training Protective Familiari- Frm 00358 Fmt 4701 Requirements Ladders Steps Systems Protection Practices Program Equipment zation [a] Total 11 Agriculture, Forestry, Fishing, and Hunting $77,491 $8,206 $0 $0 $0 $2,055 $37,959 $7,313 NA $133,024 21 Mining $69,064 $41,639 $0 $0 $52,282 $1,050 $1,025,785 $221,975 $1,411,795 Utilities $20,857,296 Sfmt 4725 E:\FR\FM\18NOR7.SGM 18NOR7 $152,035 $106,776 $17,888,009 $0 $114,808 $2,319 $2,169,123 $424,226 Manufacturing $2,706,603 $557,737 $0 $0 $1,299,152 $52,965 $6,119,290 $1,661,117 NA NA NA Wholesale Trade $4,459,417 $634,102 $0 $0 $1,714,428 $87,022 $7,865,600 $1,984,496 NA $16,745,065 44-45 Retail Trade $6,528,405 $1,964,987 $0 $0 $3,900,027 $137,238 $12,246,404 $1,796,394 Transportation $1,519,820 $231,425 $0 $0 $976,066 $29,059 $1,934,756 $490,733 51 Information $1,097,685 $393,559 $75,214 $0 $686,926 $20,731 $5,453,433 $1,178,402 NA NA NA $26,573,456 48-49 52 Finance and Insurance $1,423,407 $432,055 $0 $0 $2,366,678 $21,264 $132,531 $41,942 NA $4,417,877 Real Estate $927,405 $806,534 $0 $0 $1,907,789 $16,032 $1,429,548 $281,073 NA $5,368,381 $4,087,399 $875,058 $0 $0 $4,458,801 $12,225,546 $4,761,927 $804,887 NA $27,213,617 $229,080 $139,923 $0 $0 $251,583 $4,168 $2,366,262 $405,328 NA $3,396,345 22 31-33 42 53 54 55 ER18NO16.232</GPH> §1910.24 Professional, Scientific, and Technical Services Management of Companies and Enterprises $12,396,863 $5,181,859 $8,905,949 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 23:45 Nov 17, 2016 Table V-26 Recurring Annual Costs for the Final Standards on Walking-Working Surfaces by Paragraph and Industry srobinson on DSK5SPTVN1PROD with RULES6 VerDate Sep<11>2014 Recurring Compliance Costs Jkt 241001 §1910.22 §1910.23 §1910.24 §1910.27 §1910.28 §1910.29 §1910.30 Fall Subpart 1- Frm 00359 NAICS Title Protection and Rope Systems Personal Rule Manhole General Scaffolds and PO 00000 Step Bolts Descent Duty to Have Criteria and Training Protective Familiari- Fmt 4701 18NOR7 Ladders Steps Systems Fall Protection Practices Program Equipment zation [a] Total $1,379,070 $956,872 $0 $71 '125,818 $19,276,147 $30,807 $6,232,062 $854,682 NA $99,855,459 $391,706 $150,463 $0 $0 $404,817 $7,106 $53,205 $0 NA $1,007,296 $2,729,005 $426,058 $0 $0 $3,055,553 $63,090 $389,550 $112,151 NA $6,n5,4o1 $512,352 $239,450 $50,491 $0 $1,282,056 $10,097 $34,427 $0 NA $2,128,872 $2,181,327 $488,931 $0 $0 $1,933,120 $44,928 $1,709,797 $198,915 NA $6,557,018 $0 $0 $2,852,594 $59,793 $2,642,283 $585,553 NA 418,!)13,71# • ~1>#li.a1i · . ·.· $46;s3~;aza $12,81s',~fQ Administrative and Support, Waste 56 Management and Remediation Sfmt 4725 E:\FR\FM\18NOR7.SGM Requirements Services 61 62 Educational Services Health Care Arts, 71 Entertainment, and Recreation Accommodation 72 and Food Services 81 Other Services . •• Total .. . . $2,714,124 $1,186,568 ··.)33,185,$11~ ·~;1149.~ [a] Costs for rule familiarization are first-year costs and will not recur in subsequent years. Source: U.S. Department of Labor, OSHA, Directorate of Standards and Guidance, Office of Regulatory Analysis-Safety. ,f56,6o3,94~ · i.1t,o49;18l ······.' $10,040,915 ·.· $:illa~&6,494 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 23:45 Nov 17, 2016 Table V-26 Recurring Annual Costs for the Final Standards on Walking-Working Surfaces by Paragraph and Industry (continued) 82851 ER18NO16.233</GPH> srobinson on DSK5SPTVN1PROD with RULES6 82852 VerDate Sep<11>2014 Annualized Compliance Costs §1910.22 §1910.23 §1910.24 §1910.27 §1910.28 §1910.29 §1910.30 Jkt 241001 Fall PO 00000 Frm 00360 Protection Systems Subpart 1- Duty to Criteria Personal Rule Familiarization Total $12,555 $192,695 Step Bolts Title Descent Systems Have Fall and Training Protection Practices Proaram Protective Equipment $0.00 $2,055 $49,676 $42,213 ReQuire- Ladders and Manhole Steps $77,491 $8,704 $0 $0 General NAICS Scaffolds and Rope Agriculture, 11 Forestry, Fishing, and Hunting Fmt 4701 21 22 Sfmt 4725 31-33 42 44-45 E:\FR\FM\18NOR7.SGM 48-49 51 52 53 18NOR7 Mining $69,064 $52,684 $0 $0 $52,282 $1,050 $1,343,002 $265,887 $5,524 $1,789,493 Utilities $152,035 $143,112 $17,888,009 $0 $330,562 $2,319 $3,001,389 $616,692 $17,463 $22,151,583 Manufacturing $2,706,603 $713,068 $0 $0 $4,109,501 $52,965 $8,696,598 $3,240,843 $1,059,533 $20,579,110 Wholesale Trade $4,459,417 $782,443 $0 $0 $1,714,428 $87,022 $11,000,506 $3,073,123 $64,269 $21,181,208 Retail Trade $6,528,405 $2,288,136 $0 $0 $3,900,027 $137,238 $15,115,687 $4,681,899 $489,516 $33,140,909 Transportation $1,519,820 $266,695 $0 $0 $979,287 $29,059 $2,676,339 $1,584,553 $1,299,866 $8,355,618 Information $1,097,685 $530,365 $75,214 $0 $3,433,355 $20,731 $7,863,461 $1,443,903 $22,119 $14,486,832 $1,423,407 $438,083 $0 $0 $2,366,678 $21,264 $188,675 $1,158,972 $71,950 $5,669,028 $927,405 $966,323 $0 $0 $1,907,789 $16,032 $1,797,087 $766,104 $14,326 $6,395,066 $4,087,399 $933,624 $0 $0 $7,395,855 $12,479,452 $5,819,940 $1,766,095 $235,421 $32,717,786 $229,080 $163,718 $0 $0 $251,583 $4,168 $2,893,480 $533,612 $35,662 $4,111,304 Finance and Insurance Real Estate Professional, 54 Scientific, and Technical Services Management of 55 Companies and Enterprises ER18NO16.234</GPH> Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 23:45 Nov 17, 2016 Table V-27 Annualized Costs for the Final Standards on Walking-Working Surfaces by Paragraph and Industry srobinson on DSK5SPTVN1PROD with RULES6 VerDate Sep<11>2014 Annualized Compliance Costs Jkt 241001 §1910.22 §1910.23 §1910.24 §1910.27 §1910.28 I §1910.29 §1910.30 Fall PO 00000 Step Bolts and Protection Subpart 1- Duty to Systems Personal Rule Criteria and Training Protective Familiari- Ladders Steps Descent Systems Have Fall ments Protection Practices Program Equipment zation Total $1,379,070 $1 '125,930 $0 $71,588,545 $19,747,980 $30,807 $7,692,026 $1,249,160 $202,859 $103,016,377 $391,706 $192,896 $0 $0 $405,039 $7,106 $53,205 $107,403 $155,205 $1,312,559 $2,729,005 $432,280 $0 $0 $3,055,553 $63,090 $543,207 $917,695 $154,794 $7,895,624 $512,352 $267,696 $50,491 $0 $1,460,859 $10,097 $34,427 $123,181 $103,008 $2,562,109 $2,181,327 $516,463 $0 $0 $1,933,120 $44,928 $1,998,329 $910,366 $47,229 $7,631,761 Other Services $2,714,124 $1,450,935 $0 $0 $2,852,594 $59,793 $3,429,442 $1,220,007 $62,295 $11,789,190 ;J"otal ·~~.u~;393 ·~ 1. ;273", 165 $1 ~.01a;714 •lfh.?~~.!i~ .$5l!:.II!IG,4&2 tJ.,;O!i9.176 $74;1)~~.-ti:li Require- Frm 00361 NAICS and Rope Manhole General Scaffolds Title Administrative and Support, Fmt 4701 Waste 56 Management Sfmt 4700 and Remediation Services E:\FR\FM\18NOR7.SGM 61 62 Educational Services Health Care Arts, 71 Entertainment, and Recreation 18NOR7 72 81 c Accommodation and Food Services .• c Source: U.S. Department of Labor, OSHA, Directorate of Standards and Guidance, Office of Regulatory Analysis-Safety. . $:za,ill'lifaa •. $4.Jlli~,l!a4: .· $'Of;~rus5 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 23:45 Nov 17, 2016 TableV-27 Annualized Costs for the Final Standards on Walking-Working Surfaces by Paragraph and Industry (continued) 82853 ER18NO16.235</GPH> 82854 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations BILLING CODE 4510–29–C G. Economic Feasibility and Regulatory Flexibility Screening Analysis 1. Introduction srobinson on DSK5SPTVN1PROD with RULES6 OSHA determined that the costs of complying with the requirements of final subparts D and I will not impose substantial economic impacts on employers in the industries affected by the final rule. The costs imposed by the final standards are modest, and the increased safety and reduction in injuries and fatalities associated with the standards will reduce employers’ direct and indirect costs. OSHA based this final economic-impacts analysis on the PEA, the rulemaking record, and revisions to OSHA’s preliminary data as described above in section C (‘‘Profile of Affected Industries, Firms, and Workers’’) and section F (‘‘Costs of Compliance’’). Table V–28 summarizes OSHA’s final estimate of impacts (annualized costs) for the two-digit NAICS industry groups affected by the final standards. ‘‘Minimum’’ and ‘‘Maximum’’ refer to the lowest and highest costs among the VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 four-digit NAICS industries categorized within the two-digit group. The following section discusses OSHA’s methodology for assessing the significance of the impacts at the aggregate level presented in Table V–29 and at levels of greater industry detail. 2. Economic Screening Analysis To determine whether the final rule’s projected costs of compliance would raise issues of economic feasibility for employers in affected industries, i.e., would adversely affect the competitive structure of the industry, OSHA first compared compliance costs, annualized at a 7 percent discount rate, to industry revenues and profits. OSHA then examined specific factors affecting individual industries for which compliance costs represent a significant share of revenue, or for which the record contains other evidence that the standards could have a significant impact on the competitive structure of the industry. As noted, OSHA examined the potential impacts of the final rule two ways, i.e., as a percentage of revenues PO 00000 Frm 00362 Fmt 4701 Sfmt 4700 and as a percentage of profits. Table V–29 presents the estimated average receipts and profits by establishment and industry. In the PEA, OSHA, applying the methodology employed by ERG (ERG, 2007), estimated 2006 receipts based on 2002 receipts and payroll data from U.S. Census Bureau, Statistics of U.S. Businesses, 2002, and payroll data from U.S. Census Bureau, Statistics of U.S. Businesses, 2006. For that calculation, OSHA assumed that the ratio of receipts to payroll remained unchanged between 2002 and 2006. For this FEA, OSHA applied Statistics of U.S. Businesses, 2007 data on establishments, firms, and revenue at the four-digit NAICS level. OSHA estimated profits from ratios of net income to total receipts as reported for 2000–2008 (nine-year average) by the U.S. Internal Revenue Service, Corporation Source Book (IRS, 2009). Profit data were not available at disaggregated levels for all industries; therefore, OSHA used profit rates at more highly aggregated levels for such industries. BILLING CODE 4510–29–P E:\FR\FM\18NOR7.SGM 18NOR7 srobinson on DSK5SPTVN1PROD with RULES6 VerDate Sep<11>2014 Summary of Cost Impacts Associated with OSHA's Final Standards for Subparts D and I Average Cost per Establishment, Annualized with a Jkt 241001 NAICS Sector Title 7% Discount Rate Ratio of Average Annualized Ratio of Average Cost to Revenues Annualized Cost to Profits Minimum Maximum Minimum Maximum Minimum Maximum $9 $15 0.001% 0.001% 0.015% 0.039% PO 00000 Frm 00363 Fmt 4701 Sfmt 4725 E:\FR\FM\18NOR7.SGM 11 ft'.griculture, Forestry, Fishing, and Hunting 21 22 Mining* $237 $237 0.001% 0.001% 0.005% 0.005% Utilities $240 $3,444 0.000% 0.169% 0.014% 3.114% Manufacturing $17 $634 0.000% 0.002% 0.000% 0.072% ~holesale Trade $18 $91 0.000% 0.001% 0.001% 0.030% 44-45 Retail Trade $10 $94 0.000% 0.004% 0.006% 0.197% 48-49 Ifransportation $18 $321 0.000% 0.004% 0.000% 0.172% 51 52 Information $23 $898 0.000% 0.005% 0.002% 0.083% Finance and Insurance $9 $109 0.000% 0.001% 0.000% 0.017% 53 Real Estate $11 $23 0.000% 0.002% 0.000% 0.046% 54 Professional, Scientific, and Technical Services $13 $414 0.001% 0.020% 0.020% 0.390% 55 Management $81 $81 0.001% 0.001% 0.012% 0.012% $12 $522 0.001% 0.087% 0.010% 2.076% 31-33 42 56 fA.dministrative and Support, Waste Management and Remediation Services Educational Services $11 $71 0.000% 0.003% 0.001% 0.034% 62 Health Care $7 $79 0.000% 0.002% 0.001% 0.036% 71 72 ftvts, Entertainment, and Recreation $11 $97 0.000% 0.006% 0.003% 0.072% ft>,.ccommodation and Food Services $9 $34 0.001% 0.003% 0.021% 0.058% 81 18NOR7 61 Other Services $7 $35 0.000% 0.005% 0.010% 0.152% *Includes oil and gas extraction. Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 23:45 Nov 17, 2016 TableV-28 Source: U.S. Department of Labor, OSHA, Directorate of Standards and Guidance, Office of Regulatory Analysis-Safety. 82855 ER18NO16.236</GPH> srobinson on DSK5SPTVN1PROD with RULES6 82856 VerDate Sep<11>2014 Jkt 241001 Estimated Cost of Final Rule, Annualized with PO 00000 NAICS Frm 00364 1132 Fmt 4701 1141 Average Receipts per 1131 Industry Timber Tract Operations Forest Nurseries and Gathering of Fores Estab. [a] Average Average Ratio of Annualized Average Estimated Profits a 7% Discount Annualized Cost to Annualized per Estab. Profit Rate [b] Rate Cost per Estab. Revenues Cost to Profits $1,669,193 3.46% * $57,813 $4,220 $9.38 0.001% 0.016% $1,522,173 3.46% * $52,720 $2,424 $10.49 0.001% 0.020% Products 1133 Logging $1,086,367 3.46% * $37,626 $142,951 $14.57 0.001% 0.039% Fishing $1,161,385 5.50% * $63,834 $19,731 $9.57 0.001% 0.015% Sfmt 4725 E:\FR\FM\18NOR7.SGM 1142 Hunting and Trapping $687,832 5.50% * $37,806 $3,143 $9.61 0.001% 0.025% 1153 Support Activities for Forestry $819,390 4.60% * $37,689 $20,224 $11.52 0.001% 0.031% 2111 Oil and Gas Extraction $31 ,037,522 13.95% $4,331,076 $1,789,493 $237.27 0.001% 0.005% $45,816,490 4.33% $1,984,050 $5,142,043 $535.02 0.001% 0.027% $54,186,767 3.12% $1,692,526 $546,912 $239.56 0.000% 0.014% 2211 Electric Power Generation, Transmission and Distribution 18NOR7 2212 Natural Gas Distribution 2213 Water, Sewage and Other Systems $2,033,163 5.44% $110,587 $16,462,628 $3,444.06 0.169% 3.114% 3111 Animal Food Manufacturing $21,156,444 4.28% $904,721 $280,026 $154.11 0.001% 0.017% 3112 Grain and Oilseed Milling $87,088,549 4.28% $3,724,202 $168,055 $202.48 0.000% 0.005% $15,750,859 7.74% $1,218,918 $91 '129 $50.97 0.000% 0.004% $38,180,019 6.70% $2,556,980 $139,203 $83.46 0.000% 0.003% $55,896,648 2.60% $1 ,453,511 $139,328 $86.43 0.000% 0.006% 3113 Sugar and Confectionery Product Manufacturing Fruit and Vegetable Preserving and 3114 3115 ER18NO16.237</GPH> Ratio of Specialty Food Manufacturing Dairy Product Manufacturing * Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 23:45 Nov 17, 2016 Table V-29 Average Cost Impacts on Establishments Affected by OSHA's Final Standards for Subparts D and I (per Establishment, by 4-Digit NAICS Code) srobinson on DSK5SPTVN1PROD with RULES6 VerDate Sep<11>2014 Table V-29 (per Establishment, by 4-Digit NAICS Code) (continued) Jkt 241001 Ratio of Final Rule, Average Receipts per NAICS 3116 Industry ~imal Slaughtering and Processing PO 00000 Seafood Product Preparation and Estab. [a] $40,957,523 Average Estimated Profits Annualized with a Annualized Cost Profit Rate [b] Average Annualized Annualized Cost to Cost to * 7% Discount Rate $2,418,692 per Estab. Revenues Profits $880,691 2.15% per Estab. Ratio of Average Estimated Cost of $633.66 0.002% 0.072% $362,631 $32,948 $48.10 0.000% 0.013% Frm 00365 Fmt 4701 Sfmt 4725 $16,864,564 2.15% Bakeries and Tortilla Manufacturing $5,471,622 8.78% $480,359 $482,242 $46.96 0.001% 0.010% 3119 Other Food Manufacturing $22,381 '1 01 5.36% $1,200,230 $203,393 $61.45 0.000% 0.005% 3121 Beverage Manufacturing $22,087,717 6.67% 3122 Tobacco Manufacturing $384,255,294 17.89% 3131 Fiber, Yarn, and Thread Mills $21,210,811 3.45% Fabric Mills $14,424,042 3.45% $6,380,810 Textile Furnishings Mills $7,732,758 3149 Other Textile Product Mills 3151 Apparel Knitting Mills Cut and Sew Apparel Manufacturing 3117 3118 3132 3133 3141 Packaging Textile and Fabric Finishing and Fabric $1,473,559 $201,021 $50.76 0.000% 0.003% $68,725,423 $33,533 $307.64 0.000% 0.000% * $731,436 $43,553 $102.72 0.000% 0.014% * $497,400 $74,503 $56.53 0.000% 0.011% 3.45% * $220,037 $139,896 $103.63 0.002% 0.047% 3.68% * $284,230 $237,842 $92.08 0.001% 0.032% $2,612,342 3.68% * $96,021 $199,917 $48.18 0.002% 0.050% $7,914,945 2.87% $227,138 $77,494 $159.13 0.002% 0.070% $2,602,718 5.00% $130,034 $149,487 $16.67 0.001% 0.013% $1,890,438 3.92% $74,113 $19,153 $20.91 0.001% 0.028% Coating Mills ' E:\FR\FM\18NOR7.SGM 3152 3161 Leather and Hide Tanning and Finishing $5,655,201 5.36% * $302,869 $8,061 $33.04 0.001% 0.011% 18NOR7 3162 Footwear Manufacturing $6,904,902 5.36% * $369,798 $13,218 $43.20 0.001% 0.012% $3,187,810 5.36% * $170,726 $16,148 $19.18 0.001% 0.011% $6,927,646 2.86% * $198,425 $144,935 $34.77 0.001% 0.018% $11 ,371 ,370 2.86% * $325,704 $103,186 $53.63 0.000% 0.016% $4,758,750 2.86% * $136,302 $362,631 $34.44 0.001% 0.025% $5,005,593 $283,761 $514.99 0.000% Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 23:45 Nov 17, 2016 Average Cost Impacts on Establishments Affected by OSHA's Final Revision to Subparts D and I 0.010% 3159 3169 3211 3212 3219 3221 Apparel Accessories and Other Apparel Manufacturing Other Leather and Allied Product Manufacturing Sawmills and Wood Preservation Veneer, Plywood, and Engineered Wood Product Manufacturing Other Wood Product Manufacturing !Pulp, Paper, and ,..,"'P"'"ua•u Mills $149,009,548 3.36% 82857 ER18NO16.238</GPH> srobinson on DSK5SPTVN1PROD with RULES6 82858 VerDate Sep<11>2014 - - - Table V-29 (per Establishment, by 4-Digit NAICS Code) (continued) Jkt 241001 Ratio of Final Rule, Average Receipts per NAICS Profit Rate [b] per Estab. 7% Discount Rate per Estab. Annualized Annualized Cost to Cost to Revenues Profits PO 00000 Frm 00366 Fmt 4701 Sfmt 4725 E:\FR\FM\18NOR7.SGM 18NOR7 7.61% $1,630,767 $535,529 $119.38 0.001% 0.007% $3,053,880 3.99% * $121,803 $830,069 $24.94 0.001% 0.020% $247,192,988 7.34% * $18,134,524 $610,089 $253.36 0.000% 0.001% $88,422,649 4.32% $3,818,485 $613,576 $241.57 0.000% 0.006% $97,133,198 7.67% $7,448,757 $385,351 $358.13 0.000% 0.005% $31 ,546,951 10.59% $3,341,588 $138,825 $153.23 0.000% 0.005% $94,045,735 15.76% $14,825,716 $368,253 $191.20 0.000% 0.001% $17,178,798 5.06% $868,584 $103,173 $54.13 0.000% 0.006% $41 ,957,355 9.72% $4,078,034 $209,286 $93.39 0.000% 0.002% $16,028,236 4.88% $782,410 $210,268 $75.10 0.000% 0.010% Plastics Product Manufacturing $14,344,173 3.88% $556,085 $616,792 $51.17 0.000% 0.009% Rubber Product Manufacturing $17,847,749 2.28% $407,247 $131,414 $60.31 0.000% 0.015% $5,817,784 3.18% $184,875 $104,842 $67.21 0.001% 0.036% $11 ,056,358 3.67% $405,980 $192,593 $91.62 0.001% 0.023% $6,645,085 5.39% $357,912 $558,111 $56.02 0.001% 0.016% $21 ,293,052 5.39% $1,146,869 $49,885 $137.80 0.001% 0.012% Converted Paper Product Manufacturing 3231 Printing and Related Support Activities 3241 Estab. [a] Average $21 ,433,081 3222 Petroleum and Coal Products Manufacturing 3251 Basic Chemical Manufacturing 3252 Synthetic Fibers and Filaments Resin, Synthetic Rubber, and Artificial Manufacturing 3253 3254 3255 3256 3259 3261 3262 3271 3272 3273 3274 ER18NO16.239</GPH> Industry Average Estimated Profits Annualized with a Annualized Cost Ratio of Average Estimated Cost of Pesticide, Fertilizer, and Other * f4gricultural Chemical Manufacturing Pharmaceutical and Medicine Manufacturing Paint, Coating, and Adhesive Manufacturing Soap, Cleaning Compound, and Toilet Preparation Manufacturing Other Chemical Product and Preparation Manufacturing Clay Product and Refractory Manufacturing Glass and Glass Product Manufacturing Cement and Concrete Product Manufacturing Lime and Gypsum Product Manufacturing * Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 23:45 Nov 17, 2016 Average Cost Impacts on Establishments Affected by OSHA's Final Revision to Subparts D and I srobinson on DSK5SPTVN1PROD with RULES6 VerDate Sep<11>2014 Table V-29 (per Establishment, by 4-Digit NAICS Code) (continued) Ratio of Final Rule, Jkt 241001 PO 00000 3279 3311 Frm 00367 3312 Fmt 4701 3313 3314 Other Nonmetallic Mineral Product Estab. [a] Annualized Annualized Cost to Cost to Sfmt 4725 Profit Rate [b] per Estab. 7% Discount Rate per Estab. Revenues Profits * $273,573 $191,319 $54.90 0.001% 0.020% $5,649,264 $245,795 $272.80 0.000% 0.005% $1,480,550 $122,082 $174.65 0.001% 0.012% $3,184,968 $129,730 $211.98 0.000% 0.007% $2,619,617 $126,197 $134.54 0.000% 0.005% $758,708 $288,012 $136.05 0.001% 0.018% $5,983,085 4.57% $116,392,537 4.85% $30,503,973 4.85% $67,170,007 4.74% $58,260,176 4.50% Manufacturing Iron and Steel Mills and Ferroalloy Manufacturing Steel Product Manufacturing from * Purchased Steel ~umina and Aluminum Production and Processing Nonferrous Metal (except Aluminum) * Production and Processing E:\FR\FM\18NOR7.SGM 3315 Foundries $16,145,344 4.70% 3321 Forging and Stamping $12,189,149 4.60% $560,163 $119,720 $44.94 0.000% 0.008% Cutlery and Handtool Manufacturing $7,448,613 5.17% $385,428 $58,336 $39.28 0.001% 0.010% $6,499,587 4.63% $300,661 $468,074 $34.15 0.001% 0.011% $20,030,822 3.69% $738,345 $86,979 $55.40 0.000% 0.008% 3322 3323 3324 ~rchitectural and Structural Metals Manufacturing Boiler, Tank, and Shipping Container Manufacturing 18NOR7 3325 Hardware Manufacturing $12,314,210 5.17% * $637,198 $38,507 $4844 0.000% 0.008% 3326 Spring and Wire Product Manufacturing $6,348,582 5.17% * $328,507 $73,028 $45.25 0.001% 0.014% $2,424,124 5.71% * $138,388 $698,735 $27.65 0.001% 0.020% $4,307,509 4.59% $197,541 $177,771 $28.85 0.001% 0.015% $10,708,7 43 6.76% $724,385 $267,737 $42.00 0.000% 0.006% $28,804,013 6.07% $1,747,589 $200,080 $65.30 0.000% 0.004% 3327 3328 3329 3331 Machine Shops; Turned Product; and Screw, Nut, and Bolt Manufacturing Coating, Engraving, Heat Treating, and fA,IIied Activities Other Fabricated Metal Product Manufacturing ~griculture, Construction, and Mining Machinery Manufacturing 82859 ER18NO16.240</GPH> Industry Average Estimated Profits Annualized with a Annualized Cost Average Receipts per NAICS Average Ratio of Average Estimated Cost of Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 23:45 Nov 17, 2016 Average Cost Impacts on Establishments Affected by OSHA's Final Revision to Subparts D and I srobinson on DSK5SPTVN1PROD with RULES6 82860 VerDate Sep<11>2014 Table V-29 (per Establishment, by 4-Digit NAICS Code) (continued) Estimated Cost of Final Rule, Jkt 241001 Average Receipts per NAICS 3332 PO 00000 3333 Industry Industrial Machinery Manufacturing Commercial and Service Industry Estab. [a] Profit Rate [b] Average Estimated Profits Annualized with a Annualized Cost per Estab. 7% Discount Rate per Estab. Ratio of Average Annualized Ratio of Average Annualized Cost to Revenues Cost to Profits Frm 00368 Fmt 4701 Sfmt 4725 E:\FR\FM\18NOR7.SGM 18NOR7 $10,319,645 6.27% $646,632 $154,013 $40.06 0.000% 0.006% $10.795.780 4.56% $492,388 $105,495 $45.95 0.000% 0.009% $22,423,255 4.26% $954,775 $119,992 $65.86 0.000% 0.007% $3,631,078 5.10% $185,209 $267,185 $33.36 0.001% 0.018% $45,615,748 2.67% $1,217,096 $83,416 $89.69 0.000% 0.007% $13.7 46,276 4.94% $679,201 $294,204 $47.22 0.000% 0.007% $50,267,032 8.55% $4,299,431 $75,815 $58.41 0.000% 0.001% $35,437,387 4.50% $1,593,624 $119,106 $65.16 0.000% 0.004% $14,502,526 3.71% $537,492 $19,982 $37.70 0.000% 0.007% $25,667,299 6.48% $1,663,983 $281,486 $59.22 0.000% 0.004% $25,180,879 5.92% $1,491,393 $306,704 $58.25 0.000% 0.004% $7,704,546 3.71% $285,545 $29,430 $36.60 0.000% 0.013% $11 ,499,626 4.08% $468,646 $51,269 $41.92 0.000% 0.009% Machinery Manufacturing [ventilation, Heating, Air-Conditioning, 3334 and Commercial Refrigeration Equipment Manufacturing 3335 3336 3339 3341 3342 3343 3344 3345 3346 3351 Metalworking Machinery Manufacturing Engine, Turbine, and Power Transmission Equipment Manufacturing Other General Purpose Machinery Manufacturing Computer and Peripheral Equipment Manufacturing Communications Equipment Manufacturing ft\udio and Video Equipment Manufacturing Semiconductor and Other Electronic Component Manufacturing Navigational, Measuring, Electromedical, and Control Instruments Manufacturing Manufacturing and Reproducing * Magnetic and Optical Media Electric Lighting Equipment Manufacturing 3352 $68,995,349 4.08% $2,811,779 $62,407 $178.31 0.000% 0.006% 3353 ER18NO16.241</GPH> Household Appliance Manufacturing Electrical Equipment Manufacturing $17,529,065 6.93% $1,215,171 $122,133 $50.74 0.000% 0.004% Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 23:45 Nov 17, 2016 Average Cost Impacts on Establishments Affected by OSHA's Final Revision to Subparts D and I srobinson on DSK5SPTVN1PROD with RULES6 VerDate Sep<11>2014 Table V-29 (per Establishment, by 4-Digit NAICS Code) (continued) Jkt 241001 Ratio of Final Rule, Average Receipts per NAICS PO 00000 3359 3361 Frm 00369 3362 Fmt 4701 3364 Sfmt 4725 3366 3363 Other Electrical Equipment and Estab. [a] Profit Rate [b) Average Annualized Annualized Cost to Cost to per Estab. 7% Discount Rate per Estab. Revenues Profits $23,392,557 5.01% $1 '172,872 $119,975 $55.44 0.000% 0.005% $683,670,825 1.09% $7,430,421 $164,166 $434.30 0.000% 0.006% $16,181 ,585 1.09% * $175,868 $122,285 $55.91 0.000% 0.032% $36,411,047 1.09% * $395,731 $442,003 $79.99 0.000% 0.020% $99,786,959 4.52% $4,514,200 $325,282 $188.57 0.000% 0.004% Component Manufacturing Motor Vehicle Manufacturing Motor Vehicle Body and Trailer Manufacturing Motor Vehicle Parts Manufacturing ~erospace Product and Parts Manufacturing * E:\FR\FM\18NOR7.SGM 18NOR7 3365 Railroad Rolling Stock Manufacturing $58,053,652 2.30% $1,335,984 $29,786 $134.78 0.000% 0.010% Ship and Boat Building $16,100,676 6.14% $988,177 $685,968 $387.33 0.002% 0.039% $20,370,353 6.07% $1,237,056 $55,895 $53.28 0.000% 0.004% $2,875,210 4.02% * $115,523 $441,182 $26.63 0.001% 0.023% $6,636,712 4.02% * $266,657 $151,721 $36.87 0.001% 0.014% $9,739,334 4.02% * $391,317 $38,681 $37.34 0.000% 0.010% $6,578,304 9.84% $647,148 $378,197 $31.02 0.000% 0.005% $3,824,768 5.38% $205,958 $517,816 $27.30 0.001% 0.013% $23,332,867 2.25% $525,324 $1,777,741 $72.46 0.000% 0.014% $6,230,631 2.74% $170,702 $338,606 $26.72 0.000% 0.016% $8,055,209 2.70% $217,330 $969,311 $49.37 0.001% 0.023% 3369 3371 3372 3379 3391 3399 4231 4232 4233 Other Transportation Equipment Manufacturing Household and Institutional Furniture and Kitchen Cabinet Manufacturing Office Furniture (including Fixtures) Manufacturing Other Furniture Related Product Manufacturing Medical Equipment and Supplies Manufacturing Other Miscellaneous Manufacturing Motor Vehicle and Motor Vehicle Parts and Supplies Merchant Wholesalers Furniture and Home Furnishing Merchant * Wholesalers Lumber and Other Construction Materials Merchant Wholesalers 82861 ER18NO16.242</GPH> Industry Average Estimated Profits Annualized with a Annualized Cost Ratio of Average Estimated Cost of Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 23:45 Nov 17, 2016 Average Cost Impacts on Establishments Affected by OSHA's Final Revision to Subparts D and I srobinson on DSK5SPTVN1PROD with RULES6 82862 VerDate Sep<11>2014 - - - Table V-29 (per Establishment, by 4-Digit NAICS Code) (continued) Jkt 241001 Ratio of Final Rule, Average Receipts per NAICS PO 00000 4234 4235 Frm 00370 4236 Industry Professional and Commercial Equipment Estab. [a] Average Estimated Profits Annualized with a Annualized Cost Profit Rate [b] Ratio of Average Estimated Cost of Average Annualized Annualized Cost to Cost to per Estab. 7% Discount Rate per Estab. Revenues Profits Fmt 4701 Sfmt 4725 E:\FR\FM\18NOR7.SGM 18NOR7 $12,095,350 2.66% $321,734 $3,276,410 $90.72 0.001% 0.028% $19,823,622 2.79% $553,479 $382,838 $35.91 0.000% 0.006% $14,084,946 2.13% $299,857 $1,679,217 $57.16 0.000% 0.019% $6,008,922 3.18% $190,871 $1,164,598 $57.93 0.001% 0.030% $7,119,832 3.49% $248,387 $4,130,142 $69.13 0.001% 0.028% $6,872,271 2.74% $188,282 $1,145,514 $33.21 0.000% 0.018% $11 ,244,399 2.02% $227,508 $281,119 $24.56 0.000% 0.011% $67,598,376 3.42% $2,314,303 $204,212 $26.70 0.000% 0.001% $8,222,667 4.68% $385,068 $292,694 $18.05 0.000% 0.005% $19,115,018 2.81% $537,009 $1,289,986 $38.37 0.000% 0.007% $20,312,895 2.03% $411,623 $174,787 $26.62 0.000% 0.006% $13,083,132 3.26% $426,296 $529,981 $42.26 0.000% 0.010% $90,011 ,601 1.90% $1,709,053 $527,052 $75.04 0.000% 0.004% and Supplies Merchant Wholesalers Metal and Mineral (except Petroleum) Merchant Wholesalers Electrical and Electronic Goods Merchant ~holesalers Hardware, and Plumbing and Heating 4237 Equipment and Supplies Merchant ~holesalers 4238 4239 4241 4242 4243 4244 4246 4247 Machinery, Equipment, and Supplies Merchant Wholesalers Miscellaneous Durable Goods Merchant ~holesalers Paper and Paper Product Merchant ~holesalers Drugs and Druggists' Sundries Merchant ~holesalers fA.pparel, Piece Goods, and Notions Merchant Wholesalers Grocery and Related Product ~holesalers Farm Product Raw Material Merchant ~holesalers Chemical and Allied Products Merchant ~holesalers Petroleum and Petroleum Products Merchant Wholesalers Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 23:45 Nov 17, 2016 Average Cost Impacts on Establishments Affected by OSHA's Final Revision to Subparts D and I 4245 ER18NO16.243</GPH> ----------------------- srobinson on DSK5SPTVN1PROD with RULES6 VerDate Sep<11>2014 -- Table V-29 (per Establishment, by 4-Digit NAICS Code) (continued) Jkt 241001 Ratio of Final Rule, Average Receipts per NAICS PO 00000 4248 4249 Frm 00371 4251 Industry Beer, Wine, and Distilled Alcoholic Estab. [a] Average Estimated Profits Annualized with a Annualized Cost Profit Rate [b] Ratio of Average Estimated Cost of Average Annualized Annualized Cost to Cost to per Estab. 7% Discount Rate per Estab. Revenues Profits $26,590,428 3.77% $1,002,394 $173,328 $41.67 0.000% 0.004% $8,472,012 2.93% $248,487 $755,925 $24.06 0.000% 0.010% $10,679,245 7.55% $806,557 $2,087,749 $36.96 0.000% 0.005% Beverage Merchant Wholesalers Miscellaneous Nondurable Goods Merchant Wholesalers ~holesale Electronic Markets and * ftl.gents and Brokers Fmt 4701 Sfmt 4725 4411 ftl.utomobile Dealers $14,688,872 0.98% $143,533 $4,836,687 $94.40 0.001% 0.066% 4412 Other Motor Vehicle Dealers $3,746,365 2.52% ** $94,466 $674,656 $39.62 0.001% 0.042% $1,352,711 1.24% * $16,800 $1,953,618 $33.08 0.002% 0.197% 4413 ftl.utomotive Parts, Accessories, and Tire Stores E:\FR\FM\18NOR7.SGM 18NOR7 Furniture Stores $2,037,942 3.06% * $62,273 $651,056 $22.27 0.001% 0.036% 4422 Horne Furnishings Stores $1,452,050 3.06% * $44,370 $1,209,934 $33.38 0.002% 0.075% 4431 Electronics and Appliance Stores $2,211,558 3.29% * $72,720 $1,980,898 $37.75 0.002% 0.052% $4,282,358 7.66% * $328,165 $3,620,488 $53.28 0.001% 0.016% $2,059,790 1.81% ** $37,199 $622,155 $30.57 0.001% 0.082% $5,368,111 2.00% * $107,491 $1,272,999 $13.79 0.000% 0.013% $14,787 $415,375 $14.69 0.002% 0.099% 4421 4441 4442 Building Material and Supplies Dealers Lawn and Garden Equipment and Supplies Stores 4451 Grocery Stores 4452 Specialty Food Stores $738,448 2.00% * 2.07% * $24,431 $363,939 $11.96 0.001% 0.049% 3.06% * $88,567 $1,349,177 $15.09 0.001% 0.017% 0.001% 0.089% 4453 Beer, Wine, and Liquor Stores $1,180,880 4461 Health and Personal Care Stores $2,898,089 4471 Gasoline Stations $3,812,363 0.86% * $32,714 $3,375,083 $29.21 4481 Clothing Stores $1,614,743 5.15% * $83,175 $1,526,162 $15.37 0.001% 0.018% $975,601 5.15% * $50,253 $283,268 $10.41 0.001% 0.021% $1,103,086 5.15% * $56,820 $565,222 $19.60 0.002% Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 23:45 Nov 17, 2016 Average Cost Impacts on Establishments Affected by OSHA's Final Revision to Subparts D and I 0.035% 4482 4483 Shoe Stores Jewelry, Luggage, and Leather Goods Stores 82863 ER18NO16.244</GPH> srobinson on DSK5SPTVN1PROD with RULES6 82864 VerDate Sep<11>2014 Table V-29 (per Establishment, by 4-Digit NAICS Code) (continued) Jkt 241001 Ratio of Final Rule, Average Receipts per NAICS 4511 Industry Sporting Goods, Hobby, and Musical PO 00000 Book, Periodical, and Music Stores 4521 Department Stores Frm 00372 4529 Other General Merchandise Stores 4531 Florists Fmt 4701 4533 Sfmt 4725 4539 E:\FR\FM\18NOR7.SGM 4542 4541 Profit Rate [b] Average Annualized Annualized Cost to Cost to per Estab. 7% Discount Rate per Estab. Revenues Profits $1,453,174 2.62% * $38,053 $1,395,992 $32.08 0.002% 0.084% $1,663,461 2.62% * $43,560 $237,682 $14.30 0.001% 0.033% $28,241 '156 4.15% * $1 '171 ,729 $876,003 $86.60 0.000% 0.007% $8,240,378 4.15% * $341,894 $1,783,124 $47.75 0.001% 0.014% $326,775 3.23% * $10,551 $218,351 $11.05 0.003% 0.105% $1 '101 ,750 3.23% * $35,574 $882,764 $21.70 0.002% 0.061% $549,308 3.23% * $17,737 $293,779 $16.57 0.003% 0.093% $1 '152,691 3.23% * $37,219 $1 ,241 ,751 $27.47 0.002% 0.074% $10,145,815 3.75% * $380,719 $352,720 $21.16 0.000% 0.006% $1,445,311 3.75% * $54,235 $266,412 $51.65 0.004% 0.095% Instrument Stores 4512 4532 Estab. [a] Average Estimated Profits Annualized with a Annualized Cost Ratio of Average Estimated Cost of Office Supplies, Stationery, and Gift Stores Used Merchandise Stores Other Miscellaneous Store Retailers Electronic Shopping and Mail-Order Houses Vending Machine Operators 4543 Direct Selling Establishments $2,470,427 3.75% * $92,702 $894,880 $34.56 0.001% 0.037% 4811 Scheduled Air Transportation $41,156,740 2.57% * $1,057,033 $979,771 $317.70 0.001% 0.030% Nonscheduled Air Transportation $5,639,505 2.57% * $144,840 $299,128 $113.05 0.002% 0.078% $22,923,786 6.37% * $1,459,344 $258,929 $206.32 0.001% 0.014% 4812 4831 Deep Sea, Coastal, and Great Lakes Water Transportation 18NOR7 4832 Inland Water Transportation $8,949,927 6.21% * $555,701 $216,198 $321.25 0.004% 0.058% 4841 General Freight Trucking $2,164,805 6.21% * $134,413 $1,974,152 $28.82 0.001% 0.021% 4842 Specialized Freight Trucking $1,396,222 2.51% * $35,106 $1,321,312 $24.97 0.002% 0.071% 4851 Urban Transit Systems $3,402,520 2.51% * $85,551 $117,174 $125.72 0.004% 0.147% 4852 Interurban and Rural Bus Transportation $3,260,821 2.13% * $69,439 $51,697 $101.77 0.003% 0.147% 4853 Taxi and Limousine Service $787,904 2.13% * $16,778 $172,095 $22.97 0.003% 0.137% 4854 ER18NO16.245</GPH> School and Employee Bus Transportation $2,191,238 2.13% * $46,662 $288,063 $61.64 0.003% 0.132% 4855 Charter Bus Industry $1,761,553 2.13% * $37,512 $61,874 $49.62 0.003% 0.132% Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 23:45 Nov 17, 2016 Average Cost Impacts on Establishments Affected by OSHA's Final Revision to Subparts D and I srobinson on DSK5SPTVN1PROD with RULES6 VerDate Sep<11>2014 Table V-29 Average Cost Impacts on Establishments Affected by OSHA's Final Revision to Subparts D and I Ratio of Estimated Cost of Final Rule, Jkt 241001 Average Receipts per NAICS 4859 Industry Other Transit and Ground Passenger $1,103,620 Average Average Estimated Profits Annualized with a Annualized Cost Profit Rate [b] Average Annualized Annualized Cost to Cost to per Estab. 7% Discount Rate per Estab. Revenues Profits $140,085 $40.38 0.004% 0.172% 2.13% * $23,502 PO 00000 lrransportation Frm 00373 Fmt 4701 Sfmt 4725 4861 Pipeline Transportation of Crude Oil $17,279,723 13.23% * $2,286,008 $64,821 $173.32 0.001% 0.008% 4862 Pipeline Transportation of Natural Gas $14,061,312 13.23% * $1,860,231 $192,885 $130.42 0.001% 0.007% 4869 Other Pipeline Transportation $8,319,902 13.23% * $1,100,675 $74,469 $80.77 0.001% 0.007% $1,294,636 13.23% * $171,273 $17,600 $25.22 0.002% 0.015% $756,354 4.42% * $33,457 $63,716 $33.89 0.004% 0.101% $1,935,256 4.42% * $85,605 $10,545 $51.95 0.003% 0.061% 4871 4872 4879 Scenic and Sightseeing Transportation, Land Scenic and Sightseeing Transportation, ~ater Scenic and Sightseeing Transportation, Other E:\FR\FM\18NOR7.SGM 18NOR7 4881 Support Activities for Air Transportation $3,678,342 4.42% ** $162,710 $139,655 $25.72 0.001% 0.016% 4882 Support Activities for Rail Transportation $3,281,636 3.19% ** $104,720 $23,395 $22.98 0.001% 0.022% $7,071,781 3.19% ** $225,667 $49,775 $21.36 0.000% 0.009% $699,173 3.19% ** $22,311 $253,255 $24.88 0.004% 0.112% $2,303,721 3.19% ** $73,514 $400,787 $22.39 0.001% 0.030% $3,901,796 3.19% ** $124,510 $37,319 $21.86 0.001% 0.018% $8,233,275 3.19% ** $262,731 $462,649 $50.75 0.001% 0.000% 4883 4884 4885 4889 4921 Support Activities for Water Transportation Support Activities for Road Transportation Freight Transportation Arrangement Other Support Activities for Transportation Couriers 4922 Local Messengers and Local Delivery 4931 ~arehousing and Storage 5111 5112 Newspaper, Periodical, Book, and $877,683 3.19% ** $28,008 $84,784 $17.93 0.002% 0.000% $2,766,702 4.59% * $126,939 $599,482 $41.52 0.002% 0.033% $6,341,521 11.69% * $741,028 $612,517 $26.54 0.000% 0.004% $14,921 ,541 16.22% * $2,420,451 $398,626 $47.31 0.000% 0.002% 6.24% ** $235,135 $482,102 $22.83 0.001% 0.010% Directory Publishers Software Publishers Motion Picture and Video Industries $3,770,904 82865 5121 ER18NO16.246</GPH> Estab. [a] Ratio of Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 23:45 Nov 17, 2016 (per Establishment, by 4-Digit NAICS Code) (continued) srobinson on DSK5SPTVN1PROD with RULES6 82866 VerDate Sep<11>2014 Table V-29 (per Establishment, by 4-Digit NAICS Code) (continued) Jkt 241001 Ratio of Final Rule, Average Receipts per NAICS 5122 PO 00000 5151 5152 Industry Estab. [a] Average Estimated Profits Annualized with a Annualized Cost Profit Rate [b] Ratio of Average Estimated Cost of Average Annualized Annualized Cost to Cost to per Estab. 7% Discount Rate per Estab. Revenues Profits Sound Recording Industries $3,436,512 7.26% ** $249,607 $231,829 $61.57 0.002% 0.025% Radio and Television Broadcasting $5,673,895 6.79% * $384,986 $499,644 $51.21 0.001% 0.013% $63,287,418 6.79% * $4,294,186 $590,753 $897.80 0.001% 0.021% Cable and Other Subscription Programming Frm 00374 Fmt 4701 5161 Internet Publishing and Broadcasting $4,317,762 7.06% * $304,826 $208,741 $76.02 0.002% 0.025% 5171 Wired Telecommunications Carriers $6,677,530 6.40% * $427,600 $8,032,878 $292.69 0.004% 0.068% $14,132,480 6.40% * $904,983 $990,461 $83.82 0.001% 0.009% $4,228,606 6.40% * $270,782 $664,133 $194.36 0.005% 0.072% 5172 5173 Wireless Telecommunications Carriers (except Satellite) Telecommunications Resellers Sfmt 4725 E:\FR\FM\18NOR7.SGM 5174 Satellite Telecommunications $8,810,147 6.40% * $564,164 $331,470 $468.18 0.005% 0.083% 5175 Cable and Other Program Distribution $19,054,522 6.40% * $1,220,169 $372,083 $69.86 0.000% 0.006% 5179 Other Telecommunications $3,116,634 6.40% * $199,576 $204,943 $150.14 0.005% 0.075% $7,432,832 7.21% * $535,810 $228,371 $53.61 0.001% 0.010% $4,566,208 7.21% * $329,164 $399,575 $25.51 0.001% 0.008% $1,719,247 0.003% 0.037% 5181 5182 5191 Internet Service Providers and Web Search Portals Data Processing, Hosting, and Related Services Other Information Services 8.78% * $150,944 $238,707 $56.47 $447,246,115 $26,091,558 $11,359 Monetary Authorities - Central Bank 5.83% $109.22 0.000% 0.000% 5221 Depository Credit Intermediation $6,151,846 9.42% * $579,247 $1,581,993 $12.44 0.000% 0.002% 5222 Nondepository Credit Intermediation $8,390,543 7.53% * $632,208 $602,292 $10.25 0.000% 0.002% 5223 18NOR7 5211 * Activities Related to Credit Intermediation $1,436,047 10.33% ** $148,352 $512,746 $10.97 0.001% 0.007% $10,955,044 5.99% * $655,768 $460,114 $11.58 0.000% 0.002% $12,985,622 5.99% * $777,318 $10,460 $26.68 0.000% 0.003% $4,369,976 31.09% * $1,358,418 $526,127 $10.54 0.000% 0.001% $43,422,736 4.56% * $1,981,267 $559,524 $16.65 0.000% 0.001% 5231 5232 Securities and Commodity Contracts Intermediation and Brokerage Securities and Commodity Exchanges 5239 ER18NO16.247</GPH> Other Financial Investment Activities 5241 Insurance Carriers Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 23:45 Nov 17, 2016 Average Cost Impacts on Establishments Affected by OSHA's Final Revision to Subparts D and I srobinson on DSK5SPTVN1PROD with RULES6 VerDate Sep<11>2014 Table V-29 (per Establishment, by 4-Digit NAICS Code) (continued) Ratio of Final Rule, Jkt 241001 Average Receipts per NAICS Industry fa,gencies, Brokerages, and Other 5242 PO 00000 5259 5311 Frm 00375 5312 5313 Fmt 4701 5321 Estimated Profits Annualized with a Annualized Cost Profit Rate [b] Average Annualized Annualized Cost to Cost to per Estab. 7% Discount Rate per Estab. Revenues Profits $1,152,217 4.56% * $52,573 $1,334,261 $9.02 0.001% 0.017% Other Investment Pools and Funds $7,004,588 65.69% * $4,601,006 $70,153 $19.07 0.000% 0.000% Lessors of Real Estate $1,233,252 13.62% * $167,951 $2,219,205 $19.25 0.002% 0.011% $825,065 8.22% * $67,809 $1,317,851 $11.87 0.001% 0.018% $940,128 13.62% * $128,032 $1,700,427 $19.72 0.002% 0.015% $3,353,795 2.43% ** $81,615 $302,029 $22.41 0.001% 0.027% Insurance Related Activities Offices of Real Estate Agents and Brokers fa,ctivities Related to Real Estate fa,utomotive Equipment Rental and Leasing Sfmt 4725 5322 Consumer Goods Rental $751,790 3.69% * $27,733 $394,144 $12.58 0.002% 0.045% 5323 General Rental Centers $986,659 3.69% * $36,398 $90,558 $16.66 0.002% 0.046% $3,384,003 5.35% ** $181 '106 $343,243 $23.20 0.001% 0.013% $8,804,010 29.11% * $2,562,541 $27,610 $10.75 0.000% 0.000% $1,262,524 8.86% ** $111,912 $2,282,583 $11.93 0.001% 0.011% $962,464 7.81% ** $75,175 $1,815,056 $14.71 0.002% 0.020% $2,185,628 4.79% ** $104,584 $3,377,083 $28.84 0.001% 0.028% $693,485 5.48% ** $37,986 $535,195 $15.39 0.002% 0.041% $2,347,291 5.02% ** $117,759 $2,823,557 $24.18 0.001% 0.021% $1,277,499 7.49% ** $95,677 $3,013,196 $19.85 0.002% 0.021% $6,371,617 2.14% ** $136,588 $1,205,748 $67.79 0.001% 0.050% Commercial and Industrial Machinery and 5324 E:\FR\FM\18NOR7.SGM 5331 5411 5412 18NOR7 5413 5414 5415 5416 5417 Equipment Rental and Leasing Lessors of Nonfinancial Intangible Assets (except Copyrighted Works) Legal Services fa,ccounting, Tax Preparation, Bookkeeping, and Payroll Services fa,rchitectural, Engineering, and Related Services Specialized Design Services Computer Systems Design and Related Services Management, Scientific, and Technical Consulting Services Scientific Research and Development 82867 Services ER18NO16.248</GPH> Estab. [a] Average Ratio of Average Estimated Cost of Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 23:45 Nov 17, 2016 Average Cost Impacts on Establishments Affected by OSHA's Final Revision to Subparts D and I srobinson on DSK5SPTVN1PROD with RULES6 82868 VerDate Sep<11>2014 Table V-29 (per Establishment, by 4-Digit NAICS Code) (continued) Jkt 241001 Ratio of Final Rule, Average Receipts per NAICS Industry Estab. [a] Average Estimated Profits Annualized with a Annualized Cost Profit Rate [b] Ratio of Average Estimated Cost of Average Annualized Annualized Cost to Cost to per Estab. 7% Discount Rate per Estab. Revenues Profits PO 00000 Frm 00376 Fmt 4701 Sfmt 4725 $2,066,208 5.13% ** $106,075 $16,665,193 $413.79 0.020% 0.390% $872,522 6.72% ** $58,646 $1,000,175 $13.46 0.002% 0.023% $10,031,243 6.72% ** $674,247 $4,111,304 $81.18 0.001% 0.012% Office Administrative Services $2,183,588 12.73% * $278,006 $824,631 $27.49 0.001% 0.010% 5612 Facilities Support Services $4,664,350 4.21% * $196,177 $306,042 $66.63 0.001% 0.034% 5613 Employment Services $4,382,316 4.21% ** $184,315 $4,696,124 $105.59 0.002% 0.057% Business Support Services $1,739,445 2.66% * $46,341 $602,816 $16.96 0.001% 0.037% $1,876,077 4.21% ** $78,905 $263,715 $11.82 0.001% 0.015% $1,676,921 3.30% * $55,384 $1,103,340 $43.74 0.003% 0.079% 5418 5419 5511 5611 5614 5615 f.dvertising and Related Services Other Professional, Scientific, and Technical Services Management of Companies and Enterprises Travel Arrangement and Reservation Services E:\FR\FM\18NOR7.SGM 5616 Investigation and Security Services 5617 Services to Buildings and Dwellings $597,526 4.21% * $25,131 $93,837,002 $521.82 0.087% 2.076% 4.21% * $79,114 $525,654 $24.94 0.001% 0.032% 5619 Other Support Services $1,881,025 5621 Waste Collection $3,974,964 5.44% * $216,254 $314,446 $31.90 0.001% 0.015% Waste Treatment and Disposal $5,199,269 4.79% * $248,917 $207,062 $75.87 0.001% 0.030% $1,989,353 4.79% * $95,241 $335,546 $37.82 0.002% 0.040% 5622 5629 Remediation and Other Waste 18NOR7 Management Services 6111 Elementary and Secondary Schools $2,942,534 7.60% ** $223,747 $379,982 $18.04 0.001% 0.008% 6112 Junior Colleges $8,099,367 7.60% ** $615,868 $61,617 $71.48 0.001% 0.012% $41,213,603 7.60% ** $3,133,842 $128,977 $32.07 0.000% 0.001% $1,242,548 7.60% ** $94,482 $95,558 $12.51 0.001% 0.013% 6113 6114 Colleges, Universities, and Professional Schools Business Schools and Computer and Management Training 6115 $1,597,997 7.60% ** $121,510 $132,125 $16.48 0.001% 0.014% 6116 ER18NO16.249</GPH> Technical and Trade Schools Other Schools and Instruction $429,971 7.60% ** $32,695 $425,488 $11.05 0.003% 0.034% Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 23:45 Nov 17, 2016 Average Cost Impacts on Establishments Affected by OSHA's Final Revision to Subparts D and I srobinson on DSK5SPTVN1PROD with RULES6 VerDate Sep<11>2014 Table V-29 (per Establishment, by 4-Digit NAICS Code) (continued) Jkt 241001 Ratio of Estimated Cost of Final Rule, NAICS PO 00000 6117 6211 Average Cost to Revenues Educational Support Services $1,573,883 7.60% ** $119,677 $88,812 $13.10 0.001% 0.011% Offices of Physicians $1,579,448 4.56% * $71,961 $2,109,888 $9.59 0.001% 0.013% Profit Rate [b] Estimated Profits Annualized with a Annualized Cost per Estab. per Estab. 7% Discount Rate Average Annualized Cost to Profits Industry Average Receipts per Estab. [a] Ratio of Average Annualized Frm 00377 6212 Offices of Dentists $741,849 7.66% * $56,811 $1,213,813 $9.60 0.001% 0.017% 6213 Offices of Other Health Practitioners $418,968 7.78% * $32,616 $1,074,596 $8.63 0.002% 0.026% 6214 Outpatient Care Centers $2,684,919 5.34% * $143,419 $393,215 $13.26 0.000% 0.009% 6215 Medical and Diagnostic Laboratories $2,952,598 5.51% * $162,804 $147,860 $11.55 0.000% 0.007% Fmt 4701 Sfmt 4725 E:\FR\FM\18NOR7.SGM 6216 Home Health Care Services $2,096,085 5.51% * $115,577 $272,845 $11.16 0.001% 0.010% 6219 Other Ambulatory Health Care Services $2,925,554 5.51% * $161,313 $122,287 $12.98 0.000% 0.008% 6221 General Medical and Surgical Hospitals $120,584,628 5.24% ** $6,317,681 $427,496 $79.11 0.000% 0.001% $24,937,464 5.24% ** $1,306,526 $30,069 $41.88 0.000% 0.003% $21 ,388,067 5.24% ** $1,120,566 $37,221 $30.26 0.000% 0.003% $5,569,386 5.24% ** $291,792 $222,149 $12.97 0.000% 0.004% $785,805 5.24% ** $41,170 $266,780 $8.45 0.001% 0.021% 6222 6223 6231 6232 Psychiatric and Substance Abuse Hospitals Specialty (except Psychiatric and Substance Abuse) Hospitals Nursing Care Facilities Residential Mental Retardation, Mental Health and Substance Abuse Facilities 18NOR7 Community Care Facilities for the Elderly $1,871,515 5.24% ** $98,053 $200,122 $9.83 0.001% 0.010% 6239 Other Residential Care Facilities $1,262,287 5.24% ** $66,134 $64,009 $9.77 0.001% 0.015% 6241 Individual and Family Services $1,088,904 5.24% ** $57,050 $557,436 $9.66 0.001% 0.017% $1,629,568 5.24% ** $85,376 $127,891 $9.33 0.001% 0.011% 6233 6242 6243 Community Food and Housing, and Emergency and Other Relief Services Vocational Rehabilitation Services $1,589,697 5.24% ** $83,288 $70,917 $8.97 0.001% 0.011% $395,571 5.24% ** $20,725 $557,030 $7.45 0.002% 0.036% 6244 Child Day Care Services 7111 Performing Arts Companies $1,501,694 8.99% * $134,955 $917,750 $97.09 0.006% 0.072% Spectator Sports $6,550,026 8.99% * $588,639 $123,179 $26.60 0.000% Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 23:45 Nov 17, 2016 Average Cost Impacts on Establishments Affected by OSHA's Final Revision to Subparts D and I 0.005% 7112 82869 ER18NO16.250</GPH> srobinson on DSK5SPTVN1PROD with RULES6 82870 VerDate Sep<11>2014 Table V-29 (per Establishment, by 4-Digit NAICS Code) (continued) Ratio of Final Rule, Jkt 241001 Average Receipts per NAICS 7113 Industry Promoters of Performing Arts, Sports, Estab. [a] Average Estimated Profits Annualized with a Annualized Cost Profit Rate [b] Ratio of Average Estimated Cost of Average Annualized Annualized Cost to Cost to per Estab. 7% Discount Rate per Estab. Revenues Profits PO 00000 Frm 00378 Fmt 4701 $2,484,632 8.99% * $223.289 $204,843 $32.17 0.001% 0.014% $1,290,271 8.99% * $115,954 $47,060 $12.64 0.001% 0.011% $664,419 8.99% * $59,710 $214,595 $10.68 0.002% 0.018% $1,780,048 6.69% ** $119,016 $89,021 $12.17 0.001% 0.010% and Similar Events ~gents and Managers for Artists, 7114 ~thletes, Entertainers, and Other Public Figures 7115 7121 Independent Artists, Writers, and Performers Museums, Historical Sites, and Similar Institutions Sfmt 4725 E:\FR\FM\18NOR7.SGM 7131 ~musement Parks and Arcades $4,407,449 4.94% * $217,892 $71,268 $23.01 0.001% 0.011% 7132 Gambling Industries $11,700,473 4.94% * $578,439 $40,751 $14.93 0.000% 0.003% $869,292 4.94% * $42,975 $853,644 $12.59 0.001% 0.029% $3,116,814 5.14% * $160,221 $1,859,525 $34.27 0.001% 0.021% $593,501 5.14% * $30,509 $104,468 $14.05 0.002% 0.046% 7139 7211 7212 Other Amusement and Recreation Industries Traveler Accommodation RV (Recreational Vehicle) Parks and Recreational Camps 18NOR7 Rooming and Boarding Houses $426,099 5.14% * $21,904 $27,891 $12.67 0.003% 0.058% 7221 Full-Service Restaurants $875,776 4.61% * $40,338 $2,084,879 $9.50 0.001% 0.024% 7222 Limited-Service Eating Places $2,387,440 $8.95 0.001% 0.028% 0.041% 7213 $700,332 4.61% * $32,257 $1,087,456 4.61% * 7223 Special Food Services $50,088 $723,843 $2049 0.002% 7224 Drinking Places (Alcoholic Beverages) $393,703 4.61% * $18,134 $448,747 $9.56 0.002% 0.053% 8111 ~utomotive Repair and Maintenance $538,051 3.25% * $17,494 $4,428,593 $26.62 0.005% 0.152% $1,966,318 4.90% * $96,394 $450,013 $34.84 0.002% 0.036% $1,333,173 4.90% * $65,355 $764,001 $31.97 0.002% 0.049% 8112 Electronic and Precision Equipment Repair and Maintenance Commercial and Industrial Machinery and 8113 Equipment (except Automotive and Electronic) Repair and Maintenance ER18NO16.251</GPH> Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 23:45 Nov 17, 2016 Average Cost Impacts on Establishments Affected by OSHA's Final Revision to Subparts D and I srobinson on DSK5SPTVN1PROD with RULES6 Jkt 241001 (per Establishment, by 4-Digit NAICS Code) (continued) Ratio of Average PO 00000 Estimated Cost of Final Rule, Average Receipts per Frm 00379 NAICS 8114 Industry Personal and Household Goods Repair Estab. [a) Average Estimated Profits Annualized with a Annualized Cost Profit Rate [b) Ratio of Average Annualized Annualized Cost to Cost to per Estab. 7% Discount Rate per Estab. Revenues Profits $16.82 0.004% 0.085% $405,873 4.90% * $19,897 $385,908 and Maintenance Fmt 4701 8121 Personal Care Services $239,324 5.12% * $12,244 $845,895 $7.48 0.003% 0.061% 8122 Death Care Services $712,650 5.12% * $36,460 $227,795 $10.63 0.001% 0.029% 8123 Dry-cleaning and Laundry Services $601,488 5.12% * $30,773 $538,804 $13.04 0.002% 0.042% Sfmt 4700 E:\FR\FM\18NOR7.SGM 8129 Other Personal Services $511,082 5.12% * $26,147 $509,719 $13.91 0.003% 0.053% 8131 Religious Organizations $698,494 2.05% * $14,311 $1,746,732 $9.69 0.001% 0.068% 8132 Grantmaking and Giving Services $5,741,985 2.05% * $117,647 $187,799 $11.48 0.000% 0.010% 8133 Social Advocacy Organizations $1,228,071 2.05% * $25,162 $189,292 $12.27 0.001% 0.049% 8134 Civic and Social Organizations $623,435 2.05% * $12,774 $440,275 $14.77 0.002% 0.116% $1,221,752 2.05% * $25,032 $1,074,364 $16.87 0.001% 0.067% 8139 Business, Professional, Labor, Political, and Similar Organizations 18NOR7 [a] Estimated based on receipts data from U.S. Census Bureau, Statistics of U.S. Businesses, 2007. [b] Estimated from average of the yearly ratios of net income to total receipts as reported by the U.S. Internal Revenue Service, Corporation Source Book, 20002008. Data were not available at disaggregated levels for all industries; OSHA used profit rates at more highly aggregated levels for such industries. *Profit rate imputed from corresponding 3-digit NAICS industry. **Profit rate imputed from corresponding 2-digit NAICS industry. Source: U.S. Department of Labor, OSHA, Directorate of Standards and Guidance, Office of Regulatory Analysis-Safety. Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 23:45 Nov 17, 2016 BILLING CODE 4510–29–C VerDate Sep<11>2014 Table V-29 Average Cost Impacts on Establishments Affected by OSHA's Final Revision to Subparts D and I 82871 ER18NO16.252</GPH> srobinson on DSK5SPTVN1PROD with RULES6 82872 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations OSHA compared the baseline financial data with total annualized incremental costs of compliance by computing compliance costs as a percentage of revenues and profits. The Agency considers this impact assessment for all firms, presented in Tables V–28 and V–29, to be a screening analysis and the first step in OSHA’s analysis of whether the compliance costs potentially associated with the final standards would lead to significant impacts on establishments in the affected industries. The impact of the final standards on the viability of establishments in a given industry depends, to a significant degree, on the price elasticity of demand for the services sold by establishments in that industry. Price elasticity refers to the relationship between the price charged for a service and the quantity of that service demanded; that is, the more elastic the relationship, the less able is an establishment to pass the costs of compliance through to its customers in the form of a price increase, and the more it will have to absorb the costs of compliance from its profits. When demand is inelastic, establishments can recover most of the costs of compliance by raising the prices they charge for that service; under this scenario, profit rates remain largely unchanged, and the industry remains largely unaffected. Therefore, any impacts are primarily on the consumers using the relevant services. However, when demand is elastic, establishments cannot recover all the costs simply by passing the cost increase through in the form of a price increase. Instead, they must absorb some of the increase from their profits, commonly by both reducing the quantity of goods and services produced and reducing total profits, though, in some cases, profits rate may remain unchanged. If demand is not perfectly elastic and if at least some of the costs in question are variable rather than fixed, ‘‘when an industry is subject to a higher cost, it does not simply swallow it, it raises its price and reduces its output, and in this way shifts a part of the cost to its consumers and a part to its suppliers,’’ as the court stated in American Dental Association v. Secretary of Labor (984 F.2d 823, 829 (7th Cir. 1993)). The court’s summary is in accordance with micro-economic theory (subject to some caveats discussed below). In the long run, firms can only remain in business if their profits are adequate to provide a return on investment that ensures that investment in the industry will continue. Over time, because of rising real incomes and productivity, VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 firms in most industries are able to maintain adequate profits. As technology and costs change, however, the long-run demand for some products increases and the long-run demand for other products decreases. In the face of rising external costs, firms that otherwise have a profitable line of business may have to increase prices to stay viable. Commonly, increases in prices result in reduced quantity demanded, but rarely eliminate all demand for the product. Whether this decrease in production results in smaller production for each establishment within the industry or in closing some plants within the industry, or a combination of these two effects, depends on the cost and profit structure of individual firms within the industry. If demand is completely inelastic (i.e., price elasticity is 0), then the impact of variable compliance costs (that is, costs that depend directly on the quantity of output produced) that are 1 percent of revenues for each firm in the industry would result in a 1 percent increase in the price of the product or service, with no decline in quantity demanded. Such a situation represents an extreme case, but might be correct in situations in which there are few if any substitutes for the product or service in question, or if the products or services of the affected sector account for only a small portion of the income of its consumers. If demand is perfectly elastic (i.e., the price elasticity is infinitely large), then no increase in price is possible and before-tax profits would decrease by an amount equal to the costs of compliance (minus any savings resulting from improved employee health and/or reduced insurance costs) should the industry attempt to keep producing the same amount of goods and services. Under this scenario, if the costs of compliance are such a large percentage of profits that some or all plants in the industry can no longer invest in the industry and receive an adequate return on investment, then some or all of the firms in the industry will close. The scenario of perfectly elastic demand can only arise when there are other goods and services that are, in the eyes of the consumer, perfect substitutes for the goods and services the affected establishments produce. A common intermediate case would be a price elasticity of one. In this situation, if the costs of compliance amount to 1 percent of revenues and are entirely variable rather than fixed, then production would decline by 1 percent and prices would rise by 1 percent over the long run. In this case, the industry revenues would stay the same, with somewhat lower production, but with PO 00000 Frm 00380 Fmt 4701 Sfmt 4700 similar profit rates. However, consumers would get less of the product or the service for their expenditures, and producers would have lower total profits; this, as the court described in American Dental Association v. Secretary of Labor, is the more typical case. If compliance costs are fixed—that is, they do not depend on quantity of output produced—they cannot be passed through to consumers in the short run. In the medium- to long-run, however, some producers may exit the industry, or new producers may fail to enter an industry to replace natural exit, thus decreasing total supply, increasing prices, and reducing the portion of costs borne by producers that remain in the industry (except in the case of perfectly elastic demand, as discussed above). However, there is still the question of whether these costs will reduce significantly the industry’s competitive structure. For example, if an industry faces a 20 percent increase in costs due to a standard, and its product has an elasticity of demand of one, the industry may likely remain viable. However, if the standard leads to closing all small firms in the industry, this result would indicate that standard impaired the competitive structure of the industry. For this reason, when costs are a significant percentage of revenues, OSHA examines the differential costs by size of firm and other classifications that may be important. As indicated by the impact estimates shown in Tables V–28 and V–29, OSHA determined that, for all affected establishments in general industry, revenue impacts will not exceed 0.2 percent for any affected industry group, and profit impacts will not exceed 3.1 percent for any affected industry group. Therefore, the economic impact of the final rule will most likely consist of a small increase in prices of less than 0.2 percent for the goods and services provided by the affected employers. It is unlikely that a price increase of the magnitude of 0.2 percent will significantly reduce the quantity of goods or services demanded by the public or any other affected customers or intermediaries. If industry can recoup substantially the compliance costs of the final rule with such a minimal increase in prices, there may be little effect on profits. In general, for most establishments, it would be unlikely that they could not pass some of the compliance costs along in the form of increased prices. In the event that unusual circumstances may inhibit even a price increase of 0.2 percent, profits in the majority of E:\FR\FM\18NOR7.SGM 18NOR7 srobinson on DSK5SPTVN1PROD with RULES6 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations affected industries would decrease by a maximum of about 0.1 percent. In profit-earning entities, a combination of increases in prices or reduction in profits generally can absorb compliance costs. As discussed above, the extent to which the impacts of cost increases affect prices or profits depends on the price elasticity of demand for the products or services produced and sold by the entity. Given the small incremental increases in prices potentially resulting from compliance with the final standards, and the lack of readily available substitutes for the products and services provided by the covered industry sectors, OSHA expects demand to be sufficiently inelastic in each affected industry to enable entities to substantially offset compliance costs through minor price increases without experiencing any significant reduction in total revenues or in net profits. Positive net benefits of a regulation can only be realized in the presence of an externality or other market failure; until now, society externalized many of the costs associated with the injuries and fatalities resulting from the hazards addressed by the final rule. That is, the prices of goods and services did not reflect the costs incurred by society from the fall-related injuries and death that occur during the production of these goods and services. The workers who suffer the consequences associated with the fall hazards also assume some of the costs of production. To the extent that society externalizes fewer of these costs, the price mechanism will enable the market to produce a more socially efficient allocation of resources. However, reductions in externalities alone do not necessarily increase efficiency or social welfare unless the benefits outweigh the costs of achieving the reductions. OSHA concludes that compliance with the requirements of the final standards is economically feasible in every affected industry sector. The Agency basis this conclusion on the criteria established by the OSH Act, as interpreted in relevant case law. In general, the courts hold that a standard is economically feasible if there is a reasonable likelihood that the estimated costs of compliance ‘‘will not threaten the existence or competitive structure of an industry, even if it does portend disaster for some marginal firms’’ (United Steelworkers of America v. Marshall, 647 F.2d 1189, 1272 (D.C. Cir. 1980)). As demonstrated by this FEA and the supporting evidence, the potential impacts associated with achieving compliance with the final rule VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 fall well within the bounds of economic feasibility in each industry sector. OSHA does not expect compliance with the requirements of the final standards to threaten the viability of entities, or the existence or competitive structure of any of the affected industry sectors. In addition, based on an analysis of the costs and economic impacts associated with this rulemaking and the review of the record, OSHA concludes that the effects of the final rule on international trade, employment, wages, and economic growth for the United States would be negligible. H. Regulatory Flexibility Screening Analysis 1. Introduction The Regulatory Flexibility Act, as amended in 1996, requires the preparation of a Final Regulatory Flexibility Analysis (FRFA) for any rule that determined to have a significant economic impact on a substantial number of small entities (5 U.S.C. 601– 612). Under the provisions of the law, each such analysis must contain: • A description of the impact of the rule on small entities; • A statement of the need for, and objectives of, the rule; • The response of the Agency to any comments filed by the Chief Counsel for Advocacy of the Small Business Administration in response to the proposed rule, and a detailed statement of any revisions made to the proposed rule in the final rule as a result of these comments; • A statement of the significant issues raised by the public comments in response to the initial regulatory flexibility analysis, a statement of the assessment of the agency of such issues, and a statement of any revisions made in the proposed rule as a result of such comments; • A description and an estimate of the number of small entities to which the rule will apply, or an explanation of why no such estimate is available; • A description of the projected reporting, recordkeeping, and other compliance requirements of the rule, including an estimate of the classes of small entities that will be subject to the requirements and the type of professional skills necessary for preparation of the report or record; and • A description of the steps the agency took in the final rule to minimize the significant economic impact on small entities consistent with the stated objectives of the applicable statutes, including a statement of the factual, policy, and legal reasons for PO 00000 Frm 00381 Fmt 4701 Sfmt 4700 82873 selecting the alternative adopted in the final rule, and why the agency rejected each of the other significant alternatives to the rule considered by the agency that affect the impact on small entities. To determine the need for a FRFA, OSHA conducted a regulatory flexibility screening analysis to assess the potential impacts of the proposed standards on affected small entities. On the basis of the screening analysis, presented below, the Assistant Secretary certifies that it does not expect the final standards for walking-working surfaces and personal protective equipment to have a significant impact on a substantial number of small entities. 2. Impact of the Final Rule on Small Entities Based on the PEA and comments in the rulemaking record, OSHA estimated compliance costs and economic impacts for small entities affected by the final rule. Tables V–2 and V–3 in Section C presented, respectively, the profiles for two classes of general industry entities: Those entities classified as small according to Small Business Administration (SBA) criteria, and those entities with fewer than 20 employees. OSHA assigned costs to small entities by first determining the per-employee compliance costs for those cost items that are a function of the number of affected employees at a facility, and the per-establishment cost for those items that do not vary with establishment size. OSHA then calculated, by industry, the average number of employees for each of the two classes of small entities, multiplied these averages by peremployee compliance cost, and then added the establishment-based cost to determine the average compliance cost for each class of small entity. The Agency then multiplied these average costs by the numbers of small entities to produce the total compliance costs in each industry incurred by small entities. Table V–30 shows the resultant annualized compliance costs by industry sector for SBA-defined small entities, while Table V–31 shows the costs for entities with fewer than 20 employees. Compliance costs for SBAdefined small entities totaled $202.6 million, compared to $305.1 million for all entities. Compliance costs for entities with fewer than 20 employees totaled $161.6 million. OSHA calculated the economic impacts of these costs by comparing average compliance costs with average receipts and profits. Tables V–32 and V– 33 display the results of these calculations by four-digit NAICS industry sectors; these results are OSHA’s final assessment of impacts on E:\FR\FM\18NOR7.SGM 18NOR7 82874 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations srobinson on DSK5SPTVN1PROD with RULES6 SBA-defined small entities and entities with fewer than 20 employees (‘‘very small entities’’). Among SBA-defined small entities, compliance costs were less than three percent of profits for nearly all industries, and larger than one percent for only two industries: NAICS 2213, Water, Sewage and Other Systems (5.3 percent); and NAICS 5617, Services to Buildings and Dwellings (2.6 percent). For entities with fewer than 20 employees, compliance costs as a percent of profits were less than five percent for nearly all industries, and larger than two percent for only two industries: NAICS 2213, Water, Sewage and Other Systems (11.7 percent); and NAICS 5617, Services to Buildings and Dwellings (4.2 percent). For one industry group, chimneycleaning services, found in NAICS 56179, Other Services to Buildings and Dwellings, OSHA estimates that, for the approximately 6,000 establishments providing chimney-cleaning services affected by the final rule, economic impacts could be significant. OSHA estimates that compliance costs could reach 0.6 percent of pre-regulation revenue if the establishments passed all costs forward to customers (primarily VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 homeowners) or, at the other extreme, costs could approach 15.4 percent of pre-regulation profits if the establishments passed none of the costs forward to customers, but instead absorbed the costs from profits. For several reasons, OSHA believes that demand for chimney-cleaning services is relatively inelastic and, therefore, cost impacts are more likely to result in price adjustments than profit reduction. On the question of passing compliance costs forward to customers, the National Chimney Sweep Guild noted in a pre-hearing comment: Unless the homeowner is willing to pay for this added time, then each job becomes less profitable. Furthermore, the additional time required to perform the work would significantly reduce the number of jobs that could be performed per day to the point where the business would have to double its staff to perform the same number of jobs and the business would no longer be profitable. Especially in the current economic climate, homeowners are generally unwilling to absorb these added costs. (Ex. 296, p. 29.) OSHA disagrees with this comment because, first, all employers providing chimney-cleaning services would face the new requirements at the same time and, therefore, would have few PO 00000 Frm 00382 Fmt 4701 Sfmt 4700 incentives to hold the price of the services steady at pre-regulation levels with the expectation of gaining enough additional business to offset the compliance costs. Second, chimney-cleaning services involve almost exclusively domestic American businesses. Therefore, international-trade factors would not present competitive pressures to keep prices at the baseline levels (thereby reducing profits). Third, under the final rule, in the event that conventional fall protection is infeasible or creates a greater hazard, employers could develop a fall protection plan, the costs of which are likely to be minimal because templates for such plans should be readily available on the Internet. In such cases, employers likely would pass the cost forward to customers. Finally, OSHA believes the increase in price resulting from the cost increase would be modest. Accordingly, the price increase would not dissuade homeowners from continuing a contractual relationship with chimneycleaning services. BILLING CODE 4510–19–P E:\FR\FM\18NOR7.SGM 18NOR7 srobinson on DSK5SPTVN1PROD with RULES6 VerDate Sep<11>2014 Jkt 241001 PO 00000 Frm 00383 NAICS Industry Sector Agriculture, Forestry, 11 Fishing, and Hunting General ReQuirements Step Bolts and Manhole Steps Ladders Scaffolds and Rope Descent Systems Fall Protection Systems Duty to Criteria Have Fall and Protection Practices Training Program Subpart 1Personal Protective Rule EQuipment Familiarization Total Fmt 4701 $75,555 $7,446 $0 $0 $0 $1,715 $47,567 $40,885 $12,109 $185,277 $16,841 $0 $0 $44,733 $336 $429,312 $108,529 $4,727 $663,570 $6,938 $13,424,305 $0 $200,072 $339 $122,066 $64,112 $4,511 $13,871,085 Sfmt 4725 E:\FR\FM\18NOR7.SGM 21 Mining $59,092 22 Utilities $48,742 31-33 Manufacturing $322,494 $50,874 $0 $0 $2,102,713 $5,448 $457,674 $255,967 $662,880 $3,858,051 $3,349,628 $371,386 $0 $0 $1,284,338 $41,827 $5,028,015 $1,704,499 $48,279 $11,827,971 44-45 Retail Trade $3,105,583 $613,478 $0 $0 $1,898,927 $39,923 $3,816,793 $1,805,842 $145,240 $11,425,785 48-49 Transportation $1,098,774 $542,998 $0 $0 $698,493 $33,911 $1,724,780 $989,990 $917,174 $6,006,120 42 Wholesale Trade Information $567,821 $395,851 $47,127 $0 $2,032,604 $12,368 $5,906,845 $995,444 $13,600 $9,971,660 52 Finance and Insurance $731 '164 $106,681 $0 $0 $1,141,954 $5,218 $24,526 $445,224 $39,767 $2,494,535 53 Real Estate $747,452 $573,713 $0 $0 $1,536,235 $9,619 $1,009,192 $527,265 $9,417 $4,412,892 54 Professional, Scientific, and Technical Services $3,666,117 $505,586 $0 $0 $6,647,887 $7,594,974 $2,802,184 $1,243,441 $211,830 $22,672,017 55 18NOR7 51 Management $94,060 $8,087 $0 $0 $142,934 $72,696 $14,643 $435,926 $103,300 $206 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 23:45 Nov 17, 2016 Table V-30 Compliance Costs for Small Business Entities Affected by OSHA's Final Standards for Subparts D and I (by 2-Digit NAICS) Annualized Compliance Costs §1910.22 §1910.23 §1910.24 §1910.27 §1910.28 §1910.29 §1910.30 82875 ER18NO16.253</GPH> srobinson on DSK5SPTVN1PROD with RULES6 82876 VerDate Sep<11>2014 Jkt 241001 PO 00000 Total Frm 00384 Fmt 4701 56 $322,456 Sfmt 4725 E:\FR\FM\18NOR7.SGM $0 $142,5341 61 $0 $108,826 $965,099 62 $0 $107,778 $5,662,488 18NOR7 71 $133,040 $47,438 $97,065 $2,280,271 72 $238,887 $0 $36,906 $4,687,946 $54,486 $9,361,465 81 Source: U.S. Department of Labor, OSHA, Directorate of Standards and Guidance, Office of Regulatory Analysis-Safety. ER18NO16.254</GPH> $91,836,215 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 23:45 Nov 17, 2016 Table V-30 srobinson on DSK5SPTVN1PROD with RULES6 VerDate Sep<11>2014 Jkt 241001 Annualized Compliance Costs §1910.22 §1910.23 §1910.24 §1910.27 §1910.28 §1910.29 §1910.30 PO 00000 Fall Scaffolds Step Bolts Frm 00385 General NAICS and Manhole and Rope Duty to Have Descent Subpart 1- Protection Fall Personal Systems Criteria and Training Protective Rule Familiarization Total Fmt 4701 Sfmt 4725 E:\FR\FM\18NOR7.SGM Industry Sector Requirements Ladders Steps Systems Protection Practices Program Equipment 11 Agriculture, Forestry, Fishing, and Hunting $72,203 $5,263 $0 $0 $0 $1,216 $33,309 $37,252 $11,508 $160,749 21 Mining $53,442 $7,388 $0 $0 $40,456 $147 $188,344 $65,109 $4,275 $359,161 22 Utilities $37,746 $5,673 $12,735,080 $0 $183,559 $323 $94,240 $45,047 $3,696 $13,105,363 $0 $630,179 $976 $73,912 $164,962 $516,440 $1,650,288 $20,752 $2,396,338 $1,126,039 $40,629 $7,830,936 $254,924 $8,897 $2,941,272 $179,044 $0 $0 $1,126,862 44-45 Retail Trade $2,781,933 $404,161 $0 $0 $1,701,622 $26,330 $2,449,700 $1,509,492 $130,567 $9,003,805 48-49 Transportation $1,000,293 $219,188 $0 $0 $646,898 $14,259 $444,013 $832,076 $752,653 $3,909,381 31-33 Manufacturing 42 Wholesale Trade $0 Information $496,930 $30,565 $42,015 $0 $1,803,063 $1,953 $242,619 $128,425 $12,248 $2,757,819 52 Finance and Insurance $1,165,870 $126,595 $0 $0 $1,888,291 $5,803 $181,413 $858,438 $36,682 $4,263,092 53 Real Estate $673,968 $272,122 $0 $0 $1,320,164 $5,282 $607,848 $484,887 $8,645 $3,372,916 54 Professional, Scientific, and Technical Services $3,347,380 $257,471 $0 $0 $4,221,593 $1,088,569 $1,829,663 $1 '114,558 $198,782 $12,058,016 55 18NOR7 51 Management $25,870 $768 $0 $0 $28,411 $20 $13,565 $16,387 $4,027 $89,046 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 23:45 Nov 17, 2016 Table V-31 Compliance Costs for Very Small Business Entities (Fewer than 20 Employees) Affected by OSHA's Final Standards for Subparts D and I (by 2-Digit NAICS) 82877 ER18NO16.255</GPH> srobinson on DSK5SPTVN1PROD with RULES6 82878 VerDate Sep<11>2014 Jkt 241001 Annualized Compliance Costs §1910.22 §1910.23 1 §1910.27 §1910.24 §1910.28 §1910.29 §1910.30 Fall PO 00000 Protection Subpart!- Systems Personal General Frm 00386 Practices Total Fmt 4701 $1,013,294 $144,580 $0 I $63,961,723 I $17,438,527 I $6,664 I $1 ,024,149 I $359,357 $122,048 $84,070,342 61 $268,560 $23,608 $0 I $0 I $270,800 I $2,038 I $2,674 I $67,844 $83,001 $718,525 62 $1,870,417 $161,644 $0 I $0 I $2,146,925 I $24,750 I $23,072 I $494,656 $83,261 $4,804,725 71 $413,898 $53,175 $42,783 I $0 I $1,219,682 I $2,788 I $5,671 I $97,859 $87,676 $1,923,532 $92,945 $0 $440,448 $31,859 $3,328,860 Sfmt 4725 56 E:\FR\FM\18NOR7.SGM 18NOR7 72 $0 $1,174,721 $10,269 $264,755 Source: U.S. Department of Labor, OSHA, Directorate of Standards and Guidance, Office of Regulatory Analysis-Safety. ER18NO16.256</GPH> Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 23:45 Nov 17, 2016 Table V-31 Compliance Costs for Very Small Business Entities (Fewer than 20 Employees) Affected by OSHA's Final Standards for Subparts D and I srobinson on DSK5SPTVN1PROD with RULES6 VerDate Sep<11>2014 SBA Jkt 241001 Employment Size Criterion NAICS PO 00000 1131 Frm 00387 1132 Fmt 4701 1141 Industry Timber Tract Operations Estimated Average Receipts, 2007 Entities Receipts per Estimated Estimated Cost Average Profit Profits per of the Final Cost per Ratio of Average Cost Ratio of Average to Revenues Cost to Profits [a] ($1 ,OOO)[b] [c] Entity Rate [d] Entity Rule Entity 500 $468,335 389 $1,203,946 3.46% * $41,699 $3,638 $9.35 0.001% 0.022% 500 $165,443 169 $978,953 3.46% * $33,906 $1,772 $10.49 0.001% 0.031% Forest Nurseries and Gathering of Forest Products Sfmt 4725 E:\FR\FM\18NOR7.SGM 18NOR7 1133 Logging 500 $9,576,634 9,714 $985,859 3.46% * $34,145 $139,577 $14.37 0.001% 0.042% Fishing 20 $2,184,360 2,039 $1,071,290 5.50% * $58,882 $19,368 $9.50 0.001% 0.016% 20 $224,921 323 $696,350 5.50% * $38,274 $3,080 $9.54 0.001% 0.025% 100 $1,005,318 1,641 $612,625 4.60% * $28,179 $18,845 $11.48 0.002% 0.041% 500 $65,881 ,686 6,453 $10,209,466 13.95% $1,424,662 $667,011 $103.36 0.001% 0.007% 20 $71,561,117 1,551 $46,138,696 4.33% $1,998,003 $408,472 $263.36 0.001% 0.013% 20 $26,658,582 441 $60,450,299 3.12% $1,888,167 $29,221 $66.26 0.000% 0.004% 100 $4,692,243 3,918 $1,197,612 5.44% $65,140 $13,436,129 $3,429.33 0.286% 5.265% 500 $13,482,404 1,173 $11,493,951 4.28% $491,520 $177,057 $150.94 0.001% 0.031% 500 $12,159,386 461 $26,376,108 4.28% * $1,127,932 $82,017 $177.91 0.001% 0.016% 1142 1153 2111 Hunting and Trapping Support Activities for Forestry Oil and Gas Extraction Electric Power 2211 Generation, Transmission and Distribution 2212 2213 3111 3112 Natural Gas Distribution Water, Sewage and Other Systems Animal Food Manufacturing Grain and Oilseed Milling Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 23:45 Nov 17, 2016 Table V-32 Average Cost Impacts on Small Business Entities Affected by OSHA's Final Standards for Subparts D and I (per Entity, by 4-Digit NAICS Code) 82879 ER18NO16.257</GPH> srobinson on DSK5SPTVN1PROD with RULES6 82880 VerDate Sep<11>2014 (per Entity, by 4-Digit NAICS Code) SBA Jkt 241001 Employment Size Criterion NAICS Industry [a] Estimated Receipts, 2007 ($1 ,OOO)[b] Average Entities Estimated Receipts per Profit Rate [c] Entity [d] Estimated Cost Average Profits per of the Final Cost per Entity Rule Entity Ratio of Average Cost Ratio of Average to Revenues Cost to Profits PO 00000 Sugar and 3113 Confectionery Product Frm 00388 Fmt 4701 Sfmt 4725 E:\FR\FM\18NOR7.SGM 18NOR7 500 $7,534,539 1,587 $4,747,662 7.74% $367,409 $82,769 $52.15 0.001% 0.014% 500 $22,320,630 1,221 $18,280,614 6.70% $1,224,283 $57,621 $47.19 0.000% 0.004% 500 $22,955,544 1,031 $22,265,319 2.60% $578,977 $53,560 $51.95 0.000% 0.009% 500 $35,753,664 3,109 $11,500,053 2.15% $247,280 $1,822,315 $586.14 0.005% 0.237% 500 $5,841,258 574 $10,176,408 2.15% * $218,819 $18,060 $31.46 0.000% 0.014% 500 $16,114,228 9,408 $1,712,822 8.78% $150,370 $457,061 $48.58 0.003% 0.032% 500 $27,225,372 2,761 $9,860,693 5.36% $528,799 $115,780 $41.93 0.000% 0.008% 500 $19,57 4,647 3,338 $5,864,184 6.67% * $391,223 $160,069 $47.95 0.001% 0.012% 500 $1,445,606 72 $20,077,861 17.89% $3,590,997 $11,689 $162.35 0.001% 0.005% 500 $1,981 '174 281 $7,063,009 3.45% * $243,562 $18,183 $64.82 0.001% 0.027% 500 $8,428,933 1,107 $7,614,212 3.45% * $262,569 $37,323 $33.72 0.000% 0.013% Manufacturing Fruit and Vegetable 3114 Preserving and Specialty Food Manufacturing 3115 3116 Dairy Product Manufacturing Animal Slaughtering and Processing Seafood Product 3117 Preparation and Packaging 3118 3119 3121 3122 3131 3132 ER18NO16.258</GPH> V-32 Bakeries and Tortilla Manufacturing Other Food Manufacturing Beverage Manufacturing Tobacco Manufacturing Fiber, Yarn, and Thread Mills Fabric Mills Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 23:45 Nov 17, 2016 Table Average Cost Impacts on Small Business Entities Affected by OSHA's Final Revision to Subparts D and I srobinson on DSK5SPTVN1PROD with RULES6 VerDate Sep<11>2014 SBA Employment Size Criterion Jkt 241001 NAICS Industry [a] Estimated Receipts, 2007 ($1 ,OOO)[b] Average Entities Estimated Receipts per Profit Rate Estimated Cost Average Profits per of the Final Cost per [c] Entity [d] Entity Rule Entity Ratio of Average Cost Ratio of Average to Revenues Cost to Profits Textile and Fabric 3133 Finishing and Fabric PO 00000 3141 Frm 00389 Fmt 4701 3152 E:\FR\FM\18NOR7.SGM 18NOR7 $6,016,388 1,259 $4,778,704 3.45% * $164,789 $118,792 $94.35 0.002% 0.057% 500 $4,609,735 2,418 $1,906,425 3.68% * $70,074 $208,222 $86.11 0.005% 0.123% 500 $7,523,532 3,994 $1,883,709 3.68% * $69,239 $187,312 $46.90 0.002% 0.068% 500 $1,531,845 433 $3,537,748 2.87% $101,524 $64,182 $148.23 0.004% 0.146% 500 $18,921,683 8,772 $2,157,055 5.00% $107,768 $142,692 $16.27 0.001% 0.015% 500 $1,296,347 884 $1,466,456 3.92% $57,491 $17,903 $20.25 0.001% 0.035% 500 $962,480 230 $4,184,696 5.36% * $224,115 $7,399 $32.17 0.001% 0.014% 500 $708,810 274 $2,586,898 5.36% * $138,544 $8,587 $31.34 0.001% 0.023% 500 $1,865,997 821 $2,272,834 5.36% * $121,724 $15,343 $18.69 0.001% 0.015% 500 $18,421 ,888 3,662 $5,030,554 2.86% * $144,087 $117,626 $32.12 0.001% 0.022% 500 $9,105,606 1,444 $6,305,821 2.86% * $180,614 $65,612 $45.44 0.001% 0.025% 500 $30,432,601 9,405 $3,235,790 2.86% * $92,681 $277,993 $29.56 0.001% 0.032% 750 $7,736,635 217 $35,652,696 3.36% $1 '197,661 $171,900 $792.17 0.002% 0.066% Coating Mills 3149 Sfmt 4725 500 3151 Textile Furnishings Mills Other Textile Product Mills Apparel Knitting Mills Cut and Sew Apparel Manufacturing Apparel Accessories 3159 and Other Apparel Manufacturing 3161 3162 Leather and Hide Tanning and Finishing Footwear Manufacturing Other Leather and 3169 Allied Product Manufacturing 3211 Sawmills and Wood Preservation Veneer, Plywood, and 3212 Engineered Wood Product Manufacturing 3219 3221 Pulp, Paper, and Paperboard Mills 82881 ER18NO16.259</GPH> Other Wood Product Manufacturing Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 23:45 Nov 17, 2016 Table V-32 Average Cost Impacts on Small Business Entities Affected by OSHA's Final Revision to Subparts D and I (per Entity, by 4-Digit NAICS Code) srobinson on DSK5SPTVN1PROD with RULES6 82882 VerDate Sep<11>2014 Table V-32 (per Entity, by 4-Digit NAICS Code) SBA Employment Size Criterion Jkt 241001 NAICS Industry [a] Estimated Receipts, 2007 ($1 ,OOO)[b] Average Estimated Entities Receipts per Profit Rate [c] Entity [d] Estimated Cost Average Profits per of the Final Cost per Entity Rule Entity Ratio of Average Cost Ratio of Average to Revenues Cost to Profits Converted Paper 3222 Product PO 00000 3231 Frm 00390 3241 Fmt 4701 3251 Sfmt 4725 E:\FR\FM\18NOR7.SGM Printing and Related Support Activities $36,539,855 2,941 $12,426,409 7.61% $945,481 $426,427 $145.02 0.001% 0.015% 500 $58,682,825 31 ,414 $1,868,047 3.99% * $74,506 $727,802 $23.17 0.001% 0.031% 500 $48,140,351 1,096 $43,923,678 7.34% * $3,222,320 $167,276 $152.62 0.000% 0.005% 500 $49,507,084 1,290 $38,377,584 4.32% $1,657,316 $165,598 $128.37 0.000% 0.008% 500 $20,518,018 685 $29,953,311 7.67% $2,297,000 $279,299 $407.74 0.001% 0.018% 500 $6,412,264 633 $10,129,959 10.59% * $1,073,008 $63,493 $100.30 0.001% 0.009% 500 $21 ,206,858 1,385 $15,311,811 15.76% $2,413,810 $103,922 $75.03 0.000% 0.003% 500 $10,450,584 1,446 $7,227,237 5.06% $365,419 $61,518 $42.54 0.001% 0.012% 500 $20,115,249 1,938 $10,379,385 9.72% $1,008,822 $114,669 $59.17 0.001% 0.006% Petroleum and Coal Products Manufacturing Basic Chemical Manufacturing Resin, Synthetic Rubber, and Artificial 3252 Synthetic Fibers and Filaments Manufacturing 3253 Pesticide, Fertilizer, and Other Agricultural Chemical Manufacturing Pharmaceutical and 3254 Medicine Manufacturing 3255 18NOR7 750 Manufacturing Adhesive Paint, Coating, and Manufacturing Soap, Cleaning 3256 Compound, and Toilet Preparation Manufacturing ER18NO16.260</GPH> Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 23:45 Nov 17, 2016 Average Cost Impacts on Small Business Entities Affected by OSHA's Final Revision to Subparts D and I srobinson on DSK5SPTVN1PROD with RULES6 VerDate Sep<11>2014 SBA Employment Size Criterion Jkt 241001 NAICS Industry [a] Estimated Receipts, 2007 ($1 ,OOO)[b] Average Entities Estimated Receipts per Profit Rate [c] Entity [d] Estimated Cost Average Profits per of the Final Cost per Entity Rule Entity Ratio of Average Cost Ratio of Average to Revenues Cost to Profits Other Chemical PO 00000 3259 Product and Preparation Frm 00391 Fmt 4701 Sfmt 4725 E:\FR\FM\18NOR7.SGM 18NOR7 500 $14,882,426 2,068 $7,196,531 4.88% $351,295 $111,380 $53.86 0.001% 0.015% 500 $74,870,708 9,146 $8,186,170 3.88% $317,356 $361,097 $39.48 0.000% 0.012% 500 $13,874,745 1,628 $8,522,571 2.28% $194,467 $63,085 $38.75 0.000% 0.020% 500 $4,378,014 1,304 $3,357,373 3.18% $106,689 $60,813 $46.64 0.001% 0.044% 500 $5,294,032 1,726 $3,067,226 3.67% $112,626 $82,989 $48.08 0.002% 0.043% 500 $33,888,989 5,020 $6,750,795 5.39% $363,606 $308,718 $61.50 0.001% 0.017% 500 $1,384,991 202 $6,856,391 5.39% * $369,293 $17,215 $85.22 0.001% 0.023% 500 $9,176,165 2,937 $3,124,333 4.57% * $142,858 $134,955 $45.95 0.001% 0.032% 750 $18,680,495 730 $25,589,719 4.85% $1,242,030 $195,786 $268.20 0.001% 0.022% 1000 $11 ,597,089 497 $23,334,183 4.85% * $1,132,555 $100,911 $203.04 0.001% 0.018% Manufacturing 3261 3262 Plastics Product Manufacturing Rubber Product Manufacturing Clay Product and 3271 Refractory Manufacturing Glass and Glass 3272 Product Manufacturing Cement and Concrete 3273 Product Manufacturing Lime and Gypsum 3274 Product Manufacturing Other Nonmetallic 3279 Mineral Product Manufacturing Iron and Steel Mills 3311 and Ferroalloy Manufacturing Steel Product 3312 Manufacturing from Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 23:45 Nov 17, 2016 Table V-32 Average Cost Impacts on Small Business Entities Affected by OSHA's Final Revision to Subparts D and I (per Entity, by 4-Digit NAICS Code) Purchased Steel 82883 ER18NO16.261</GPH> srobinson on DSK5SPTVN1PROD with RULES6 82884 VerDate Sep<11>2014 SBA Employment Size Criterion Jkt 241001 NAICS Industry [a] Estimated Receipts, 2007 ($1 ,OOO)[b] Average Entities Estimated Receipts per Profit Rate [c] Entity [d] Estimated Cost Average Profits per of the Final Cost per Entity Rule Entity Ratio of Average Cost Ratio of Average to Revenues Cost to Profits Alumina and 3313 PO 00000 Frm 00392 Fmt 4701 Sfmt 4725 E:\FR\FM\18NOR7.SGM 18NOR7 750 $9,481,337 421 $22,520,990 4.74% $1,067,867 $99,216 $235.67 0.001% 0.022% 750 $16,396,272 676 $24,254,840 4.50% * $1,090,597 $92,323 $136.57 0.001% 0.013% Foundries 500 $17,218,659 1,796 $9,587,227 4.70% $450,527 $153,234 $85.32 0.001% 0.019% Forging and Stamping 500 $21,580,191 2,301 $9,378,614 4.60% $431,002 $90,443 $39.31 0.000% 0.009% 500 $6,243,986 1,333 $4,684,161 5.17% $242,382 $43,863 $32.91 0.001% 0.014% 500 $58,158,410 12,517 $4,646,354 4.63% $214,933 $380,218 $30.38 0.001% 0.014% 500 $10,822,634 1,214 $8,914,855 3.69% $328,605 $51,547 $42.46 0.000% 0.013% 500 $4,402,513 673 $6,541,624 5.17% * $338,496 $24,733 $36.75 0.001% 0.011% 500 $6,481,270 1,395 $4,646,072 5.17% * $240,411 $59,605 $42.73 0.001% 0.018% 500 $50' 649' 664 24,638 $2,055,754 5.71% * $117,359 $662,763 $26.90 0.001% 0.023% 500 $19,921 ,419 5,526 $3,605,034 4.59% $165,326 $155,507 $28.14 0.001% 0.017% Aluminum Production and Processing Nonferrous Metal 3314 (except Aluminum) Production and Processing 3315 3321 3322 Cutlery and Handtool Manufacturing Architectural and 3323 Structural Metals Manufacturing Boiler, Tank, and 3324 Shipping Container Manufacturing 3325 Hardware Manufacturing Spring and Wire 3326 Product Manufacturing Machine Shops; 3327 Turned Product; and Screw, Nut, and Bolt Manufacturing Coating, Engraving, 3328 Heat Treating, and Allied Activities ER18NO16.262</GPH> Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 23:45 Nov 17, 2016 Table V-32 Average Cost Impacts on Small Business Entities Affected by OSHA's Final Revision to Subparts D and I (per Entity, by 4-Digit NAICS Code) srobinson on DSK5SPTVN1PROD with RULES6 VerDate Sep<11>2014 SBA Employment Size Criterion Jkt 241001 NAICS Industry [a] Estimated Receipts, 2007 ($1 ,OOO)[b] Average Estimated Estimated Cost Average of the Final Cost per Entity Rule Entity Entities Receipts per Profit Rate Profits per [c] Entity [d] Ratio of Average Cost Ratio of Average to Revenues Cost to Profits Other Fabricated 3329 Metal Product PO 00000 Frm 00393 Fmt 4701 Sfmt 4725 E:\FR\FM\18NOR7.SGM 18NOR7 500 $28,666,675 5,625 $5,096,298 6.76% $344,735 $179,844 $31.97 0.001% 0.009% 500 $24,737,429 2,640 $9,370,238 6.07% $568,508 $113,707 $43.07 0.000% 0.008% 500 $17,768,488 3,510 $5,062,247 6.27% $317,202 $120,147 $34.23 0.001% 0.011% 500 $10,377,208 2,013 $5,155,096 4.56% $235,120 $72,958 $36.24 0.001% 0.015% 500 $10,739,286 1,397 $7,687,392 4.26% $327,327 $54,324 $38.89 0.001% 0.012% 500 $20,422,820 7,595 $2,688,982 5.10% $137,156 $239,486 $31.53 0.001% 0.023% 500 $7,115,536 704 $10,107,295 2.67% $269,678 $30,341 $43.10 0.000% 0.016% 500 $33,262,361 5,361 $6,204,507 4.94% $306,563 $189,510 $35.35 0.001% 0.012% Manufacturing Agriculture, 3331 Construction, and Mining Machinery Manufacturing 3332 Industrial Machinery Manufacturing Commercial and 3333 Service Industry Machinery Manufacturing Ventilation, Heating, Air-Conditioning, and 3334 Commercial Refrigeration Equipment Manufacturing Metalworking 3335 Machinery Manufacturing Engine, Turbine, and 3336 Power Transmission Equipment Manufacturing Other General 3339 Purpose Machinery Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 23:45 Nov 17, 2016 Table V-32 Average Cost Impacts on Small Business Entities Affected by OSHA's Final Revision to Subparts D and I (per Entity, by 4-Digit NAICS Code) Manufacturing 82885 ER18NO16.263</GPH> srobinson on DSK5SPTVN1PROD with RULES6 82886 VerDate Sep<11>2014 SBA Employment Size Criterion Jkt 241001 NAICS Industry 3341 Peripheral Equipment [a] Estimated Receipts, 2007 ($1 ,OOO)[b] Average Entities Estimated Receipts per Profit Rate [c] Entity [d] Estimated Cost Average Profits per of the Final Cost per Entity Rule Entity Ratio of Average Cost Ratio of Average to Revenues Cost to Profits Computer and PO 00000 Frm 00394 E:\FR\FM\18NOR7.SGM $10,655,606 1,184 $8,999,667 8.55% $769,758 $69,111 $58.37 0.001% 0.008% 750 $15,471,516 1,517 $10,202,121 4.50% $458,791 $92,625 $61.08 0.001% 0.013% 750 $3,407,537 496 $6,870,034 3.71% $254,617 $18,776 $37.85 0.001% 0.015% 500 $29,325,434 4,039 $7,260,568 6.48% $470,695 $159,175 $39.41 0.001% 0.008% 500 $32,498,798 4,395 $7,395,335 5.92% $438,005 $146,103 $33.25 0.000% 0.008% 500 $2,180,159 750 $2,906,879 3.71% * $107,735 $21,226 $28.30 0.001% 0.026% 500 $7,317,724 1,102 $6,643,417 4.08% $270,740 $36,167 $32.83 0.000% 0.012% 500 $1,896,622 279 $6,797,928 4.08% $277,037 $28,767 $103.11 0.002% 0.037% 500 $13,308,052 1,971 $6,751,929 6.93% $468,065 $97,933 $49.69 0.001% 0.011% Communications 3342 Equipment Manufacturing Audio and Video 3343 Fmt 4701 Sfmt 4725 1,000 Manufacturing Equipment Manufacturing Semiconductor and 3344 Other Electronic Component Manufacturing Navigational, Measuring, 3345 Electromedical, and Control Instruments Manufacturing Manufacturing and 3346 Reproducing 18NOR7 Magnetic and Optical Media Electric Lighting 3351 Equipment Manufacturing 3352 3353 ER18NO16.264</GPH> Household Appliance Manufacturing Electrical Equipment Manufacturing Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 23:45 Nov 17, 2016 Table V-32 Average Cost Impacts on Small Business Entities Affected by OSHA's Final Revision to Subparts D and I (per Entity, by 4-Digit NAICS Code) srobinson on DSK5SPTVN1PROD with RULES6 VerDate Sep<11>2014 SBA Employment Jkt 241001 Size Criterion NAICS Industry [a] Estimated Receipts, 2007 ($1 ,OOO)[b] Average Estimated Estimated Cost Average of the Final Cost per Entity Rule Entity Entities Receipts per Profit Rate Profits per [c] Entity [d] Ratio of Average Cost Ratio of Average to Revenues Cost to Profits Other Electrical PO 00000 3359 Frm 00395 3361 Equipment and Component Fmt 4701 Sfmt 4725 E:\FR\FM\18NOR7.SGM 18NOR7 500 $21 '773,278 1,743 $12,491,840 5.01% $626,324 $70,267 $40.31 0.000% 0.006% 1,000 $4,735,259 276 $17,156,736 1.09% $186,467 $148,429 $537.79 0.003% 0.288% 500 $15,196,178 1,851 $8,209,713 1.09% * $89,227 $71,247 $38.49 0.000% 0.043% 500 $55,365,541 4,227 $13,098,070 1.09% * $142,355 $180,026 $42.59 0.000% 0.030% 1,000 $13,091,579 1,275 $10,267,905 4.52% $464,503 $283,376 $222.26 0.002% 0.048% 1,000 $1,508,526 141 $10,698,766 2.30% * $246,210 $22,754 $161.38 0.002% 0.066% 500 $11 ,479,976 1,612 $7,121,573 6.14% $437,085 $230,217 $142.81 0.002% 0.033% 500 $5,488,371 986 $5,566,299 6.07% $338,032 $38,221 $38.76 0.001% 0.011% 500 $25,553,757 16,089 $1,588,275 4.02% * $63,815 $368,702 $22.92 0.001% 0.036% 500 $15,486,586 3,866 $4,005,842 4.02% * $160,951 $122,548 $31.70 0.001% 0.020% Manufacturing Motor Vehicle Manufacturing Motor Vehicle Body 3362 and Trailer Manufacturing 3363 Motor Vehicle Parts Manufacturing Aerospace Product 3364 and Parts Manufacturing 3365 3366 Railroad Rolling Stock Manufacturing Ship and Boat Building Other Transportation 3369 Equipment Manufacturing Household and 3371 Institutional Furniture and Kitchen Cabinet Manufacturing Office Furniture 3372 (including Fixtures) Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 23:45 Nov 17, 2016 Table V-32 Average Cost Impacts on Small Business Entities Affected by OSHA's Final Revision to Subparts D and I (per Entity, by 4-Digit NAICS Code) Manufacturing 82887 ER18NO16.265</GPH> srobinson on DSK5SPTVN1PROD with RULES6 82888 VerDate Sep<11>2014 SBA Employment Size Criterion Jkt 241001 NAICS Industry [a] Estimated Receipts, 2007 ($1,000)[b] Average Entities Estimated Receipts per Profit Rate Estimated Cost Average Profits per of the Final Cost per [c] Entity [d] Entity Rule Entity Ratio of Average Cost Ratio of Average to Revenues Cost to Profits Other Furniture 3379 Related Product PO 00000 Frm 00396 Fmt 4701 18NOR7 $5,000,204 888 $5,630,860 4.02% * $226,243 $27,325 $30.77 0.001% 0.014% 500 $28,982,721 11,227 $2,581,520 9.84% $253,960 $285,223 $25.41 0.001% 0.010% 500 $43,667,832 18,259 $2,391,579 5.38% $128,783 $454,148 $24.87 0.001% 0.019% 100 $88,349,621 16,942 $5,214,828 2.25% $117,408 $894,270 $52.78 0.001% 0.045% 100 $57,631 ,397 10,468 $5,505,483 2.74% * $150,835 $248,336 $23.72 0.000% 0.016% 100 $61 '158,220 12,190 $5,017,184 2.70% $135,364 $512,225 $42.02 0.001% 0.031% 100 $99,564,895 25,371 $3,924,436 2.66% $104,389 $1,261,769 $49.73 0.001% 0.048% 100 $79,191,947 6,957 $11,382,651 2.79% $317,806 $217,881 $31.32 0.000% 0.010% Medical Equipment 3391 and Supplies Manufacturing 3399 Other Miscellaneous Manufacturing Motor Vehicle and Motor Vehicle Parts 4231 Sfmt 4725 E:\FR\FM\18NOR7.SGM 500 Manufacturing and Supplies Merchant Wholesalers Furniture and Home 4232 Furnishing Merchant Wholesalers Lumber and Other 4233 Construction Materials Merchant Wholesalers Professional and Commercial 4234 Equipment and Supplies Merchant Wholesalers Metal and Mineral 4235 (except Petroleum) Merchant Wholesalers ER18NO16.266</GPH> Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 23:45 Nov 17, 2016 Table V-32 Average Cost Impacts on Small Business Entities Affected by OSHA's Final Revision to Subparts D and I (per Entity, by 4-Digit NAICS Code) srobinson on DSK5SPTVN1PROD with RULES6 VerDate Sep<11>2014 SBA Employment Size Criterion Jkt 241001 NAICS Industry [a] Estimated Receipts, 2007 ($1 ,OOO)[b] Average Estimated Estimated Cost Average of the Final Cost per Entity Rule Entity Entities Receipts per Profit Rate Profits per [c] Entity [d] Ratio of Average Cost Ratio of Average to Revenues Cost to Profits Electrical and PO 00000 4236 Electronic Goods Merchant Frm 00397 E:\FR\FM\18NOR7.SGM 18NOR7 $116,205,481 19,024 $6,108,282 2.13% $130,040 $791,810 $41.62 0.001% 0.032% 100 $47,399,143 10,751 $4,408,710 3.18% $140,041 $583,565 $54.28 0.001% 0.039% 100 $197,666,925 41,809 $4,727,813 3.49% $164,938 $2,439,487 $58.35 0.001% 0.035% 100 $159,740,319 30,313 $5,269,697 2.74% $144,375 $835,162 $27.55 0.001% 0.019% 100 $36,553,039 8,752 $4,176,774 2.02% $84,509 $186,075 $21.26 0.001% 0.025% 100 $34,187,543 5,838 $5,856,288 3.42% $200,496 $115,976 $19.87 0.000% 0.010% 100 $81,945,442 14,426 $5,680,399 4.68% $266,013 $252,181 $17.48 0.000% 0.007% 100 $204,506,779 26,532 $7,708,002 2.81% $216,545 $681,757 $25.70 0.000% 0.012% Wholesalers Hardware, and Plumbing and Heating 4237 Equipment and Supplies Merchant Fmt 4701 Sfmt 4725 100 Wholesalers Machinery, 4238 Equipment, and Supplies Merchant Wholesalers Miscellaneous 4239 Durable Goods Merchant Wholesalers Paper and Paper 4241 Product Merchant Wholesalers Drugs and Druggists' 4242 Sundries Merchant Wholesalers Apparel, Piece 4243 Goods, and Notions Merchant Wholesalers 4244 Grocery and Related Product Wholesalers Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 23:45 Nov 17, 2016 Table V-32 Average Cost Impacts on Small Business Entities Affected by OSHA's Final Revision to Subparts D and I (per Entity, by 4-Digit NAICS Code) 82889 ER18NO16.267</GPH> srobinson on DSK5SPTVN1PROD with RULES6 82890 VerDate Sep<11>2014 SBA Employment Size Criterion Jkt 241001 Industry NAICS [a] Estimated Receipts, 2007 ($1 ,OOO)[b] Average Entities Estimated Receipts per Profit Rate [c] Entity [d] Estimated Cost Average Profits per of the Final Cost per Entity Rule Entity Ratio of Average Cost Ratio of Average to Revenues Cost to Profits Farm Product Raw 4245 Material Merchant PO 00000 Frm 00398 E:\FR\FM\18NOR7.SGM 18NOR7 $55,679,278 3,844 $14,484,724 2.03% $293,520 $105,896 $27.55 0.000% 0.009% 100 $50,173,511 7,934 $6,324,060 3.26% $206,061 $287,804 $36.28 0.001% 0.018% 100 $204,677,503 4,478 $45,709,900 1.90% $867,895 $294,762 $65.83 0.000% 0.008% 100 $32,849,344 2,999 $10,952,519 3.77% $412,883 $87,205 $29.08 0.000% 0.007% 100 $91 '126,788 24,660 $3,695,365 2.93% $108,386 $515,371 $20.90 0.001% 0.019% 100 $387,328,579 53,561 $7,231,541 7.55% • $546,167 $1,589,585 $29.68 0.000% 0.005% 20 $443,192,194 44,316 $10,000,839 0.98% $97,724 $1,356,335 $30.61 0.000% 0.031% 100 $57,025,140 15,120 $3,771,504 2.52% •• $95,100 $564,057 $37.31 0.001% 0.039% 100 $42,888,527 32,330 $1,326,586 1.24% • $16,475 $939,806 $29.07 0.002% 0.176% 100 $35,470,338 19,802 $1,791,250 3.06% • $54,735 $410,300 $20.72 0.001% 0.038% 100 $30,067,318 26,202 $1,147,520 3.06% • $35,064 $648,103 $24.73 0.002% 0.071% Chemical and Allied 4246 Products Merchant Wholesalers Petroleum and 4247 Fmt 4701 Sfmt 4725 100 Wholesalers Petroleum Products Merchant Wholesalers Beer, Wine, and 4248 Distilled Alcoholic Beverage Merchant Wholesalers Miscellaneous 4249 Nondurable Goods Merchant Wholesalers Wholesale Electronic 4251 Markets and Agents and Brokers 4411 4412 Automobile Dealers Other Motor Vehicle Dealers Automotive Parts, 4413 Accessories, and Tire Stores 4421 4422 ER18NO16.268</GPH> Furniture Stores Home Furnishings Stores Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 23:45 Nov 17, 2016 Table V-32 Average Cost Impacts on Small Business Entities Affected by OSHA's Final Revision to Subparts D and I (per Entity, by 4-Digit NAICS Code) srobinson on DSK5SPTVN1PROD with RULES6 VerDate Sep<11>2014 SBA Employment Size Criterion Jkt 241001 NAICS PO 00000 4441 Frm 00399 4442 Fmt 4701 4452 4431 Industry Electronics and Appliance Stores Building Material and Supplies Dealers [a] Estimated Receipts, 2007 ($1 ,OOO)[b] Average Entities Estimated Receipts per Profit Rate Estimated Cost Average Profits per of the Final Cost per [c] Entity [d] Entity Rule Entity Ratio of Average Cost Ratio of Average to Revenues Cost to Profits 20 $38,835,791 30,335 $1,280,230 3.29% * $42,096 $696,841 $22.97 0.002% 0.055% 100 $116,471,660 45,176 $2,578,176 7.66% * $197,571 $1,559,771 $34.53 0.001% 0.017% 100 $33,831 ,920 16,635 $2,033,779 1.81% ** $36,730 $481,335 $28.94 0.001% 0.079% Lawn and Garden Equipment and Supplies Stores Sfmt 4725 4451 Grocery Stores 100 $110,655,741 65,430 $1,691,208 2.00% * $33,865 $790,579 $12.08 0.001% 0.036% Specialty Food Stores 100 $17,713,135 23,426 $756,131 2.00% * $15,141 $337,519 $14.41 0.002% 0.095% 100 $30,450,794 26,833 $1,134,826 2.07% * $23,478 $320,512 $11.94 0.001% 0.051% 100 $80,787,975 43,539 $1,855,531 3.06% * $56,706 $614,009 $14.10 0.001% 0.025% 4453 4461 Beer, Wine, and Liquor Stores Health and Personal Care Stores E:\FR\FM\18NOR7.SGM 18NOR7 Gasoline Stations 100 $235,407,146 65,359 $3,601,756 0.86% * $30,907 $1,791,895 $27.42 0.001% 0.089% 4481 Clothing Stores 100 $33,291 ,641 40,794 $816,092 5.15% * $42,037 $611,963 $15.00 0.002% 0.036% 4482 Shoe Stores 100 $6,858,608 6,641 $1,032,767 5.15% * $53,198 $68,997 $10.39 0.001% 0.020% 4483 and Leather Goods 100 $18,847,729 19,038 $990,006 5.15% * $50,995 $354,928 $18.64 0.002% 0.037% 100 $26,098,603 31,702 $823,248 2.62% * $21,558 $710,405 $22.41 0.003% 0.104% 100 $6,664,077 9,053 $736,118 2.62% * $19,276 $125,471 $13.86 0.002% 0.072% 100 $634,076 394 $1,609,330 4.15% * $66,771 $7,006 $17.78 0.001% 0.027% 100 $8,449,800 10,002 $844,811 4.15% * $35,051 $189,005 $18.90 0.002% 0.054% 100 $6,272,242 18,941 $331,146 3.23% * $10,692 $209,493 $11.06 0.003% Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 23:45 Nov 17, 2016 Table V-32 Average Cost Impacts on Small Business Entities Affected by OSHA's Final Revision to Subparts D and I (per Entity, by 4-Digit NAICS Code) 0.103% 4471 Jewelry, Luggage, Stores Sporting Goods, 4511 Hobby, and Musical Instrument Stores 4512 4521 4529 4531 Book, Periodical, and Music Stores Department Stores Other General Merchandise Stores Florists 82891 ER18NO16.269</GPH> srobinson on DSK5SPTVN1PROD with RULES6 82892 VerDate Sep<11>2014 SBA Employment Size Criterion Jkt 241001 NAICS [a] ($1 ,OOO)[b] Average Entities Estimated Receipts per Profit Rate Estimated Cost Average Profits per of the Final Cost per [c] Entity [d] Entity Rule Entity Ratio of Average Cost Ratio of Average to Revenues Cost to Profits Office Supplies, 4532 Stationery, and Gift PO 00000 Frm 00400 Fmt 4701 Sfmt 4725 E:\FR\FM\18NOR7.SGM 18NOR7 500 $17,012,759 28,693 $592,924 3.23% * $19,145 $544,680 $18.98 0.003% 0.099% 100 $7,323,864 13,005 $563,158 3.23% * $18,184 $198,837 $15.29 0.003% 0.084% 100 $39,861 ,928 36,844 $1,081,911 3.23% * $34,934 $909,311 $24.68 0.002% 0.071% 100 $44,357,730 14,940 $2,969,058 3.75% * $111,413 $237,352 $15.89 0.001% 0.014% 100 $5,134,462 4,518 $1,136,446 3.75% * $42,645 $181,494 $40.17 0.004% 0.094% 20 $22,403,680 19,679 $1,138,456 3.75% * $42,720 $488,472 $24.82 0.002% 0.058% 1,500 $9,851 '112 538 $18,310,617 2.57% * $470,274 $864,379 $1,606.65 0.009% 0.342% 1,500 $8,890,730 2,304 $3,858,824 2.57% * $99,107 $264,726 $114.90 0.003% 0.116% 20 $8,477,469 838 $10,116,311 6.37% * $644,012 $170,817 $203.84 0.002% 0.032% 500 $2,084,918 580 $3,594,686 6.21% * $223,194 $183,302 $316.04 0.009% 0.142% 500 $74,888,330 58,091 $1,289,155 6.21% * $80,044 $1,367,747 $23.54 0.002% 0.029% 500 $55,163,013 47,947 $1 '150,500 2.51% * $28,927 $1,143,121 $23.84 0.002% 0.082% 100 $824,244 566 $1,456,261 2.51% * $36,615 $51,925 $91.74 0.006% 0.251% Stores 4533 4539 Used Merchandise Stores Other Miscellaneous Store Retailers Electronic Shopping 4541 and Mail-Order Houses 4542 4543 4811 4812 Vending Machine Operators Direct Selling Establishments Scheduled Air Transportation Nonscheduled Air Transportation Deep Sea, Coastal, 4831 and Great Lakes Water Transportation 4832 4841 4842 4851 ER18NO16.270</GPH> Industry Estimated Receipts, 2007 Inland Water Transportation General Freight Trucking Specialized Freight Trucking Urban Transit Systems Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 23:45 Nov 17, 2016 Table V-32 Average Cost Impacts on Small Business Entities Affected by OSHA's Final Revision to Subparts D and I (per Entity, by 4-Digit NAICS Code) srobinson on DSK5SPTVN1PROD with RULES6 VerDate Sep<11>2014 Table V-32 (per Entity, by 4-Digit NAICS Code) SBA Employment Size Criterion Jkt 241001 NAICS 4852 PO 00000 4853 Frm 00401 4854 4855 Industry Interurban and Rural Bus Transportation Taxi and Limousine Service School and Employee Bus Transportation Charter Bus Industry [a] Estimated Receipts, 2007 ($1 ,OOO)[b] Average Estimated Entities Receipts per Profit Rate Profits per Estimated Cost Average of the Final Cost per [c] Entity [cl] Entity Rule Entity Ratio of Average Cost Ratio of Average to Revenues Cost to Profits Fmt 4701 Sfmt 4725 E:\FR\FM\18NOR7.SGM 18NOR7 100 $554,776 224 $2,476,679 2.13% * $52,741 $18,923 $84.48 0.003% 0.160% 500 $4,978,224 7,290 $682,884 2.13% * $14,542 $162,816 $22.33 0.003% 0.154% 100 $3,320,869 3,045 $1,090,597 2.13% * $23,224 $137,140 $45.04 0.004% 0.194% 500 $1,781,963 1,118 $1,593,885 2.13% * $33,942 $52,919 $47.33 0.003% 0.139% 500 $3,828,458 3,196 $1,197,890 2.13% * $25,509 $126,394 $39.55 0.003% 0.155% 1,500 $860,780 42 $20,494,772 13.23% * $2,711,340 $23,669 $563.54 0.003% 0.021% 500 $2,298,538 84 $27,363,548 13.23% * $3,620,040 $12,249 $145.82 0.001% 0.004% 500 $1,137,749 56 $20,316,946 13.23% * $2,687,815 $5,561 $99.30 0.000% 0.004% 500 $559,211 635 $880,647 13.23% * $116,505 $15,916 $25.06 0.003% 0.022% 500 $1 '127,304 1,821 $619,058 4.42% * $27,384 $61,569 $33.81 0.005% 0.123% 100 $392,857 188 $2,089,665 4.42% * $92,436 $9,690 $51.54 0.002% 0.056% 100 $7,164,833 3,947 $1,815,260 4.42% ** $80,297 $412,902 $104.61 0.006% 0.130% Other Transit and 4859 Ground Passenger Transportation Pipeline 4861 Transportation of Crude Oil Pipeline 4862 Transportation of Natural Gas 4869 Other Pipeline Transportation Scenic and 4871 Sightseeing Transportation, Land Scenic and 4872 Sightseeing Transportation, Water Scenic and 4879 Sightseeing Transportation, Other 4881 Support Activities for Air Transportation Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 23:45 Nov 17, 2016 Average Cost Impacts on Small Business Entities Affected by OSHA's Final Revision to Subparts D and I 82893 ER18NO16.271</GPH> srobinson on DSK5SPTVN1PROD with RULES6 82894 VerDate Sep<11>2014 SBA Employment Size Criterion Jkt 241001 NAICS 4882 PO 00000 4883 4884 Frm 00402 4885 Industry Support Activities for Rail Transportation Support Activities for Water Transportation Support Activities for Road Transportation Freight Transportation Arrangement [a] Estimated Receipts, 2007 ($1 ,OOO)[b] Average Estimated Entities Receipts per Profit Rate Profits per Estimated Cost Average of the Final Cost per [c] Entity [d] Entity Rule Entity Ratio of Average Cost Ratio of Average to Revenues Cost to Profits Fmt 4701 Sfmt 4725 E:\FR\FM\18NOR7.SGM 18NOR7 100 $1,272,169 480 $2,650,352 3.19% ** $84,575 $120,434 $250.90 0.009% 0.297% 100 $5,416,618 1,765 $3,068,905 3.19% ** $97,931 $130,434 $73.90 0.002% 0.075% 100 $5,813,392 9,249 $628,543 3.19% ** $20,057 $312,411 $33.78 0.005% 0.168% 100 $27,524,202 12,667 $2,172,906 3.19% ** $69,339 $272,517 $21.51 0.001% 0.031% 100 $1,868,396 1,551 $1,204,640 3.19% ** $38,441 $25,461 $16.42 0.001% 0.043% 1,500 $4,178,767 3,747 $1 '115,230 3.19% ** $35,588 $353,871 $94.44 0.008% 0.265% 500 $4,150,565 4,330 $958,560 3.19% ** $30,588 $77,208 $17.83 0.002% 0.058% 100 $39,951 '180 7,410 $5,391,522 4.59% * $247,368 $179,796 $24.26 0.000% 0.010% 500 $43,902,360 16,643 $2,637,887 11.69% * $308,246 $398,651 $23.95 0.001% 0.008% 500 $23,859,487 5,601 $4,259,862 16.22% * $691,000 $226,680 $40.47 0.001% 0.006% 500 $25,078,127 17,429 $1,438,874 6.24% ** $89,721 $394,399 $22.63 0.002% 0.025% 100 $1,654,218 3,425 $482,983 7.26% ** $35,081 $207,546 $60.60 0.013% 0.173% 20 $10,268,764 4,606 $2,229,432 6.79% * $151,272 $174,604 $37.91 0.002% 0.025% 500 $3,601,413 341 $10,561,328 6.79% * $716,609 $160,191 $469.77 0.004% 0.066% Other Support 4889 Activities for Transportation 4921 4922 4931 Couriers Local Messengers and Local Delivery Warehousing and Storage Newspaper, 5111 Periodical, Book, and Directory Publishers 5112 5121 5122 5151 Software Publishers Motion Picture and Video Industries Sound Recording Industries Radio and Television Broadcasting Cable and Other 5152 Subscription Programming ER18NO16.272</GPH> Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 23:45 Nov 17, 2016 TableV-32 Average Cost Impacts on Small Business Entities Affected by OSHA's Final Revision to Subparts D and I (per Entity, by 4-Digit NAICS Code) srobinson on DSK5SPTVN1PROD with RULES6 VerDate Sep<11>2014 Table V-32 (per Entity, by 4-Digit NAICS Code) SBA Employment Size Criterion Jkt 241001 NAICS 5161 Industry Internet Publishing and Broadcasting (a] Estimated Receipts, 2007 ($1 ,OOO)[b] Average Estimated Entities Receipts per Profit Rate Profits per Estimated Cost Average of the Final Cost per (c) Entity [d] Entity Rule Entity Ratio of Average Cost Ratio of Average to Revenues Cost to Profits PO 00000 Frm 00403 Fmt 4701 Sfmt 4725 E:\FR\FM\18NOR7.SGM 18NOR7 500 $5.485,257 2,333 $2,351,160 7.06% * $165,988 $177,116 $75.92 0.003% 0.046% 1,500 $16,702,548 2,004 $8,334,605 6.40% * $533,712 $5,879.440 $2,933.85 0.035% 0.550% 1,500 $8,683,535 1,711 $5,075,123 6.40% * $324,989 $413,650 $241.76 0.005% 0.074% 1,500 $13,331 ,322 3,107 $4,290,738 6.40% * $274,760 $753,777 $242.61 0.006% 0.088% 1,000 $3,001,157 530 $5,662,560 6.40% * $362,606 $288,672 $544.66 0.010% 0.150% 1,000 $2,796,836 947 $2,953,364 6.40% * $189,121 $122,259 $129.10 0.004% 0.068% 1,000 $2,226,640 1,260 $1,767,175 6.40% * $113,162 $192,504 $152.78 0.009% 0.135% 1,000 $7,943,835 3,747 $2,120,052 7.21% * $152,828 $200,636 $53.55 0.003% 0.035% 1,000 $22,685,667 7,112 $3,189,773 7.21% * $229,941 $184,911 $26.00 0.001% 0.011% 1,000 $3,073.430 3,349 $917,716 8.78% * $80,572 $189.407 $56.56 0.006% 0.070% 1,000 $302,753 53 $5,712,321 5.83% * $333,247 $5,985 $112.92 0.002% 0.034% 20 $182,794,953 15,010 $12,178,211 9.42% * $1,146,679 $185,843 $12.38 0.000% 0.001% Wired 5171 Telecommunications Carriers Wireless 5172 Telecommunications Carriers (except Satellite) 5173 5174 5175 5179 Telecommunications Resellers Satellite Telecommunications Cable and Other Program Distribution Other Telecommunications Internet Service 5181 Providers and Web Search Portals Data Processing, 5182 Hosting, and Related Services 5191 5211 5221 Other Information Services Monetary Authorities Central Bank Depository Credit Intermediation Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 23:45 Nov 17, 2016 Average Cost Impacts on Small Business Entities Affected by OSHA's Final Revision to Subparts D and I 82895 ER18NO16.273</GPH> srobinson on DSK5SPTVN1PROD with RULES6 82896 VerDate Sep<11>2014 SBA Employment Size Criterion Jkt 241001 NAICS 5222 PO 00000 5223 Industry Nondepository Credit Intermediation Activities Related to Credit Intermediation [a] Estimated Receipts, 2007 ($1 ,OOO)[b] Average Estimated Entities Receipts per Profit Rate Profits per Estimated Cost Average of the Final Cost per [c] Entity [d] Entity Rule Entity Ratio of Average Cost Ratio of Average to Revenues Cost to Profits Frm 00404 Fmt 4701 Sfmt 4725 E:\FR\FM\18NOR7.SGM 18NOR7 100 $109,214,617 23,197 $4,708,135 7.53% * $354,747 $236,702 $10.20 0.000% 0.003% 20 $25,947,702 27,577 $940,918 10.33% ** $97,202 $301,270 $10.92 0.001% 0.011% 100 $43,913,430 12,731 $3,449,331 5.99% • $206,477 $146,774 $11.53 0.000% 0.006% 100 $829,893 117 $7,093,103 5.99% * $424,592 $3,100 $26.50 0.000% 0.006% 100 $117,296,054 43,788 $2,678,726 31.09% * $832,689 $459,208 $10.49 0.000% 0.001% 100 $89,744,365 6,849 $13,103,280 4.56% • $597,869 $86,030 $12.56 0.000% 0.002% 20 $96,095,730 130,229 $737,898 4.56% * $33,668 $1,153,096 $8.85 0.001% 0.026% 20 $4,149,107 1,965 $2,111,505 65.69% * $1,386,955 $28,360 $14.43 0.00% 0.001% 100 $99,265,980 95,427 $1,040,229 13.62% * $141,664 $1,681,882 $17.62 0.002% 0.012% 100 $70,375,455 100,495 $700,288 8.22% * $57,554 $1,123,102 $11.18 0.002% 0.019% 100 $55,573,813 73,945 $751,556 13.62%. $102,351 $1,207,599 $16.33 0.002% 0.016% 500 $8,909,501 4,629 $1,924,714 2.43% ** $46,838 $75,614 $16.33 0.001% 0.035% Securities and 5231 Commodity Contracts Intermediation and Brokerage Securities and 5232 Commodity Exchanges 5239 5241 Other Financial Investment Activities Insurance Carriers Agencies, 5242 Brokerages, and Other Insurance Related Activities 5259 5311 5312 5313 Other Investment Pools and Funds Lessors of Real Estate Offices of Real Estate Agents and Brokers Activities Related to Real Estate Automotive 5321 Equipment Rental and Leasing ER18NO16.274</GPH> Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 23:45 Nov 17, 2016 Table V-32 Average Cost Impacts on Small Business Entities Affected by OSHA's Final Revision to Subparts D and I (per Entity, by 4-Digit NAICS Code) srobinson on DSK5SPTVN1PROD with RULES6 VerDate Sep<11>2014 SBA Employment Size Criterion Jkt 241001 NAICS 5322 PO 00000 5323 Industry Consumer Goods Rental General Rental Centers [a] Estimated Receipts, 2007 ($1 ,OOO)[b] Average Estimated Entities Receipts per Profit Rate Profits per Estimated Cost Average of the Final Cost per [c] Entity [d] Entity Rule Entity Ratio of Average Cost Ratio of Average to Revenues Cost to Profits Frm 00405 Fmt 4701 100 $8,145,582 12,034 $676,881 3.69% * $24,970 $145,586 $12.10 0.002% 0.048% 100 $3,512,015 3,167 $1,108,941 3.69% * $40,909 $54,139 $17.09 0.002% 0.042% 100 $20,012,355 8,368 $2,391,534 5.35% ** $127,991 $157,061 $18.77 0.001% 0.015% 100 $8,060,046 2,335 $3,451,840 $1,004,711 $21,210 $9.08 0.000% 0.001% Commercial and 5324 Industrial Machinery and Equipment Rental and Leasing Lessors of Nonfinancial 5331 Intangible Assets 29.11% * Sfmt 4725 (except Copyrighted Works) 5411 Legal Services E:\FR\FM\18NOR7.SGM 18NOR7 100 $168,755,635 180,282 $936,065 8.86% ** $82,974 $2,136,675 $11.85 0.001% 0.014% 500 $59,259,539 107,843 $549,498 7.81% ** $42,920 $1,449,633 $13.44 0.002% 0.031% 100 $144,115,123 98,918 $1,456,915 4.79% ** $69,714 $2,125,094 $21.48 0.001% 0.031% 100 $23,155,463 34,304 $675,008 5.48% ** $36,974 $510,832 $14.89 0.002% 0.040% 500 $130,320,040 102,538 $1,270,944 5.02% ** $63,761 $1,955,349 $19.07 0.002% 0.030% 100 $119,314,020 141,356 $844,068 7.49% ** $63,215 $2,230,048 $15.78 0.002% 0.025% Accounting, Tax 5412 Preparation, Bookkeeping, and Payroll Services Architectural, 5413 Engineering, and Related Services 5414 Specialized Design Services Computer Systems 5415 Design and Related Services Management, 5416 Scientific, and Technical Consulting ER18NO16.275</GPH> 82897 Services Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 23:45 Nov 17, 2016 Table V-32 Average Cost Impacts on Small Business Entities Affected by OSHA's Final Revision to Subparts D and I (per Entity, by 4-Digit NAICS Code) srobinson on DSK5SPTVN1PROD with RULES6 82898 VerDate Sep<11>2014 SBA Employment Jkt 241001 NAICS ($1 ,OOO)[b] Average Estimated Entities Receipts per Profit Rate Profits per Estimated Cost Average of the Final Cost per [c] Entity [d] Entity Rule Entity Ratio of Average Cost Ratio of Average to Revenues Cost to Profits Scientific Research 5417 and Development PO 00000 Frm 00406 Fmt 4701 Sfmt 4725 E:\FR\FM\18NOR7.SGM 18NOR7 100 $47,783,246 13,440 $3,555,301 2.14% ** $76,215 $376,368 $28.00 0.001% 0.037% 500 $54,654,241 36,283 $1,506,332 5.13% ** $77,332 $11,247,212 $309.99 0.021% 0.401% 500 $50,054,663 64,099 $780,896 6.72% ** $52,488 $839,864 $13.10 0.002% 0.025% 100 $75,486,690 20,794 $3,630,215 6.72% ** $244,004 $448,375 $21.56 0.001% 0.009% 100 $42,852,939 25,338 $1,691,252 12.73% * $215,323 $481,328 $19.00 0.001% 0.009% 500 $4,603,262 1,500 $3,068,841 4.21% * $129,072 $76,594 $51.06 0.002% 0.040% 100 $44,575,894 23,151 $1,925,441 4.21% ** $80,982 $533,594 $23.05 0.001% 0.028% 100 $28,391 ,249 29,302 $968,918 2.66% * $25,813 $367,799 $12.55 0.001% 0.049% 100 $16,631,010 16,703 $995,690 4.21% ** $41,877 $172,249 $10.31 0.001% 0.025% 100 $17,080,251 19,479 $876,855 3.30% * $28,960 $384,732 $19.75 0.002% 0.068% 100 $82,911,097 172,700 $480,087 4.21% * $20,192 $89,103,422 $515.94 0.107% 2.555% 100 $26,157,479 18,223 $1,435,410 4.21% * $60,372 $311,286 $17.08 0.001% 0.028% 500 $14,389,120 7,666 $1,877,005 5.44% * $102,117 $186,579 $24.34 0.001% 0.024% Services 5418 Advertising and Related Services Other Professional, 5419 Scientific, and Technical Services Management of 5511 Companies and Enterprises 5611 5612 5613 5614 Office Administrative Services Facilities Support Services Employment Services Business Support Services Travel Arrangement 5615 and Reservation Services 5616 5617 5619 5621 ER18NO16.276</GPH> Industry Size Criterion [a] Estimated Receipts, 2007 Investigation and Security Services Services to Buildings and Dwellings Other Support Services Waste Collection Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 23:45 Nov 17, 2016 Table V-32 Average Cost Impacts on Small Business Entities Affected by OSHA's Final Revision to Subparts D and I (per Entity, by 4-Digit NAICS Code) srobinson on DSK5SPTVN1PROD with RULES6 VerDate Sep<11>2014 Average Cost Impacts on Small Business Entities Affected by OSHA's Final Revision to Subparts D and I (per Entity, by 4-Digit NAICS Code) SBA Employment Jkt 241001 Size Criterion NAICS 5622 Industry Waste Treatment and PO 00000 Disposal [a] Estimated Receipts, 2007 ($1 ,OOO)[b] Average Entities Estimated Receipts per Profit Rate Estimated Cost Average Profits per of the Final Cost per [c] Entity [d] Entity Rule Entity Ratio of Average Cost Ratio of Average to Revenues Cost to Profits Frm 00407 Fmt 4701 $5,060,315 1,534 $3,298,771 4.79% * $157,930 $75,692 $49.34 0.001% 0.031% 100 $13,326,878 7,883 $1,690,585 4.79% * $80,937 $232,298 $29.47 0.002% 0.036% 100 $55,736,852 16,490 $3,380,040 7.60% ** $257,015 $271,750 $16.48 0.000% 0.006% 500 $2,336,568 288 $8,113,083 7.60% ** $616,911 $19,858 $68.95 0.001% 0.011% 100 $13,007,384 1,718 $7,571,236 7.60% ** $575,709 $25,819 $15.03 0.000% 0.003% 100 $7,444,657 6,832 $1,089,675 7.60% ** $82,858 $85,144 $12.46 0.001% 0.015% 500 $7,026,736 6,442 $1,090,769 7.60% ** $82,941 $105,258 $16.34 0.001% 0.020% 100 $13,872,429 35,635 $389,292 7.60% ** $29,601 $393,156 $11.03 0.003% 0.037% 100 $7,107,117 5,917 $1,201,135 7.60% ** $91,333 $77,080 $13.03 0.001% 0.014% $1,400,668 4.56% * Remediation and 5629 Other Waste Management Services 6111 6112 Elementary and Secondary Schools Junior Colleges Colleges, Sfmt 4725 6113 E:\FR\FM\18NOR7.SGM 6114 18NOR7 100 Universities, and Professional Schools Business Schools and Computer and Management Training 6115 6116 6117 Technical and Trade Schools Other Schools and Instruction Educational Support Services 6211 Offices of Physicians 100 $265,079,147 189,252 $63,816 $1,807,322 $9.55 0.001% 0.015% 6212 Offices of Dentists 100 $90,979,014 120,488 $755,088 7.66% * $57,824 $1,157,098 $9.60 0.001% 0.017% 100 $45,983,749 112,089 $410,243 7.78% * $31,937 $965,995 $8.62 0.002% 0.027% 500 $33,986,651 12,233 $2,778,276 5.34% * $148,406 $163,526 $13.37 0.000% 0.009% 6213 6214 Offices of Other Health Practitioners Outpatient Care Centers Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 23:45 Nov 17, 2016 Table V-32 82899 ER18NO16.277</GPH> srobinson on DSK5SPTVN1PROD with RULES6 82900 VerDate Sep<11>2014 SBA Employment Size Criterion Jkt 241001 NAICS Industry [a] Estimated Receipts, 2007 ($1 ,OOO)[b] Average Entities Estimated Receipts per Profit Rate Estimated Cost Average Profits per of the Final Cost per [c] Entity [d] Entity Rule Entity Ratio of Average Cost Ratio of Average to Revenues Cost to Profits Medical and 6215 Diagnostic PO 00000 Frm 00408 Fmt 4701 6216 6219 6221 $20,124,407 7,464 $2,696,196 5.51% * $148,667 $85,946 $11.51 0.000% 0.008% Home Health Care Services 20 $24,316,866 15,764 $1,542,557 5.51% * $85,056 $171,902 $10.90 0.001% 0.013% Other Ambulatory Health Care Services 100 $12,200,189 5,449 $2,238,978 5.51% * $123,456 $66,395 $12.18 0.001% 0.010% General Medical and Surgical Hospitals 20 $29,788,752 1,674 $17,794,953 5.24% ** $932,315 $21,324 $12.74 0.000% 0.001% 20 $4,235,063 326 $12,990,991 5.24% ** $680,625 $4,347 $13.33 0.000% 0.002% 20 $2,962,810 401 $7,388,554 5.24% ** $387,102 $6,753 $16.84 0.000% 0.004% 500 $41,876,375 7,832 $5,346,830 5.24% ** $280,132 $100,545 $12.84 0.000% 0.005% 100 $14,585,730 8,036 $1,815,049 5.24% ** $95,094 $68,213 $8.49 0.000% 0.009% 100 $19,733,146 14,491 $1,361,752 5.24% ** $71,345 $125,759 $8.68 0.001% 0.012% 100 $6,041,833 3,523 $1,714,968 5.24% ** $89,851 $32,833 $9.32 0.001% 0.010% 100 $50,250,251 40,591 $1,237,965 5.24% ** $64,860 $382,358 $9.42 0.001% 0.015% Psychiatric and 6222 Sfmt 4725 E:\FR\FM\18NOR7.SGM 500 Laboratories Substance Abuse Hospitals Specialty (except 6223 Psychiatric and Substance Abuse) Hospitals 6231 Nursing Care Facilities Residential Mental 6232 Retardation, Mental 18NOR7 Health and Substance Abuse Facilities Community Care 6233 Facilities for the Elderly 6239 6241 ER18NO16.278</GPH> Other Residential Care Facilities Individual and Family Services Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 23:45 Nov 17, 2016 Table V-32 Average Cost Impacts on Small Business Entities Affected by OSHA's Final Revision to Subparts D and I (per Entity, by 4-Digit NAICS Code) srobinson on DSK5SPTVN1PROD with RULES6 VerDate Sep<11>2014 Table V-32 (per Entity, by 4-Digit NAICS Code) SBA Employment Size Criterion Jkt 241001 Industry NAICS [a] Estimated Receipts, 2007 ($1 ,OOO)[b] Average Entities Estimated Receipts per Profit Rate Estimated Cost Average Profits per of the Final Cost per [c] Entity [d] Entity Rule Entity Ratio of Average Cost Ratio of Average to Revenues Cost to Profits Community Food and 6242 Housing, and PO 00000 Emergency and Other Frm 00409 Fmt 4701 $19,349,321 9,325 $2,074,994 5.24% ** $108,713 $86,660 $9.29 0.000% 0.009% 100 $8,265,697 4,249 $1,945,328 5.24% ** $101,920 $33,711 $7.93 0.000% 0.008% 100 $23,735,204 59,716 $397,468 5.24% ** $20,824 $443,692 $7.43 0.002% 0.036% 500 $11,640,787 9,255 $1,257,784 8.99% * $113,035 $897,260 $96.95 0.008% 0.086% 100 $17,228,395 4,194 $4,107,867 8.99% * $369,167 $90,496 $21.58 0.001% 0.006% 20 $8,206,151 5,982 $1,371,807 8.99% * $123,282 $185,112 $30.94 0.002% 0.025% 500 $4,029,130 3,620 $1,113,019 8.99% * $100,025 $45,715 $12.63 0.001% 0.013% 500 $12,619,303 20,044 $629,580 8.99% * $56,579 $214,084 $10.68 0.002% 0.019% 100 $9,970,695 6,778 $1,471,038 6.69% ** $98,355 $77,873 $11.49 0.001% 0.012% 100 $2,438,790 2,555 $954,517 4.94% * $47,189 $40,212 $15.74 0.002% 0.033% 500 $8,341,034 1,988 $4,195,691 4.94% * $207,423 $24,338 $12.24 0.000% 0.006% Relief Services Vocational 6243 Rehabilitation Services 6244 7111 Sfmt 4725 7112 E:\FR\FM\18NOR7.SGM 7113 18NOR7 100 Child Day Care Services Performing Arts Companies Spectator Sports Promoters of Performing Arts, Sports, and Similar Events Agents and Managers 7114 for Artists, Athletes, Entertainers, and Other Public Figures Independent Artists, 7115 Writers, and Performers Museums, Historical 7121 Sites, and Similar Institutions 7131 7132 Amusement Parks and Arcades Gambling Industries Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 23:45 Nov 17, 2016 Average Cost Impacts on Small Business Entities Affected by OSHA's Final Revision to Subparts D and I 82901 ER18NO16.279</GPH> srobinson on DSK5SPTVN1PROD with RULES6 82902 VerDate Sep<11>2014 Jkt 241001 SBA Employment Size Criterion PO 00000 NAICS Industry [a] Estimated Receipts, 2007 ($1 ,OOO)[b] Average Entities Estimated Receipts per Profit Rate Estimated Cost Average Profits per of the Final Cost per [c] Entity [d] Entity Rule Entity Ratio of Average Cost Ratio of Average to Revenues Cost to Profits Other Amusement 7139 and Recreation Frm 00410 Fmt 4701 Sfmt 4725 100 $45,100,926 61,465 $733,766 4.94% * $36,275 $729,434 $11.87 0.002% 0.033% 100 $53,634,734 43,818 $1,224,034 5.14% * $62,922 $729,551 $16.65 0.001% 0.026% 100 $3,904,302 6,809 $573,403 5.14% * $29,476 $90,069 $13.23 0.002% 0.045% 100 $827,450 2,117 $390,860 5.14% * $20,092 $25,738 $12.16 0.003% 0.061% Industries 7211 Traveler Accommodation RV (Recreational 7212 Vehicle) Parks and Recreational Camps 7213 7221 E:\FR\FM\18NOR7.SGM 7222 7223 7224 18NOR7 8111 Rooming and Boarding Houses Full-Service Restaurants Limited-Service Eating Places Special Food Services Drinking Places (Alcoholic Beverages) Automotive Repair and Maintenance 500 $127,043,572 188,281 $674,755 4.61% * $31,079 $1,742,715 $9.26 0.001% 0.030% 100 $114,142,231 173,832 $656,624 4.61% * $30,244 $1,504,625 $8.66 0.001% 0.029% 100 $10,765,010 15,095 $713,151 4.61% * $32,847 $228,401 $15.13 0.002% 0.046% 100 $17,750,257 46,253 $383,764 4.61% * $17,676 $437,994 $9.47 0.002% 0.054% 100 $82,369,042 152,030 $541,795 3.25% * $17,616 $3,851,769 $25.34 0.005% 0.144% 20 $10,041,369 11,232 $893,997 4.90% * $43,826 $207,343 $18.46 0.002% 0.042% Electronic and 8112 Precision Equipment Repair and Maintenance ER18NO16.280</GPH> Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 23:45 Nov 17, 2016 Table V-32 Average Cost Impacts on Small Business Entities Affected by OSHA's Final Revision to Subparts D and I (per Entity, by 4-Digit NAICS Code) srobinson on DSK5SPTVN1PROD with RULES6 VerDate Sep<11>2014 Table V-32 Average Cost Impacts on Small Business Entities Affected by OSHA's Final Revision to Subparts D and I (per Entity, by 4-Digit NAICS Code) Size Criterion NAICS Industry [a] Estimated Receipts, 2007 ($1 ,OOO)[b] Average Estimated Entities Receipts per Profit Rate Profits per Estimated Cost Average of the Final Cost per [c] Entity [d] Entity Rule Entity Ratio of Average Cost Ratio of Average to Revenues Cost to Profits Commercial and Jkt 241001 Industrial Machinery and Equipment 8113 (except Automotive 21,850 $1,029,875 4.90% * $50,487 $553,520 $25.33 0.002% 0.050% 500 $7,534,240 21,868 $344,533 4.90% * $16,890 $336,963 $15.41 0.004% 0.091% 100 $22,490,631 96,852 $232,216 5.12% * $11,880 $722,467 $7.46 0.003% 0.063% 20 $12,218,211 15,760 $775,267 5.12% * $39,663 $155,848 $9.89 0.001% 0.025% 20 $13,570,864 33,896 $400,368 5.12% * $20,483 $337,527 $9.96 0.002% 0.049% 20 $11,794,640 25,713 $458,703 5.12% * $23,468 $298,050 $11.59 0.003% 0.049% $632,935 2.05% * $12,968 $1,614,463 $9.05 0.001% 0.070% PO 00000 Repair and Personal and Frm 00411 Fmt 4701 8121 E:\FR\FM\18NOR7.SGM $22,502,761 Maintenance 8114 Sfmt 4725 100 and Electronic) Household Goods Repair and Maintenance 8122 8123 8129 8131 8132 18NOR7 8133 8134 Personal Care Services Death Care Services Dry-cleaning and Laundry Services Other Personal Services Religious Organizations Grantmaking and Giving Services Social Advocacy Organizations Civic and Social Organizations 20 $112,912,515 178,395 20 $84,918,809 14,131 $6,009,398 2.05% * $123,126 $145,943 $10.33 0.000% 0.008% 20 $15,775,057 13,019 $1,211,695 2.05% * $24,826 $129,562 $9.95 0.001% 0.040% 20 $16,708,923 26,900 $621,150 2.05% * $12,727 $295,983 $11.00 0.002% 0.086% Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 23:45 Nov 17, 2016 SBA Employment 82903 ER18NO16.281</GPH> srobinson on DSK5SPTVN1PROD with RULES6 82904 VerDate Sep<11>2014 (per Entity, by 4-Digit NAICS Code) SBA Employment Size Criterion NAICS Industry [a] Estimated Receipts, 2007 ($1 ,OOO)[b] Average Estimated Entities Receipts per Profit Rate Estimated Cost Average Profits per of the Final Cost per Jkt 241001 [c] Entity [d] Entity Rule Entity 60,844 $1,119,240 2.05% * $22,932 $832,384 $13.68 Ratio of Average Cost Ratio of Average to Revenues Cost to Profits 0.001% 0.060% Business, 8139 Professional, Labor, Political, and Similar 20 $68,099,014 Organizations PO 00000 [a) SBA criteria specified in dollar terms converted to size-class definition based on average revenues for different size establishments. Most restrictive critenon for 6-digit NAICS applied to the 4-digit NAICS leveL Frm 00412 [b) Estimated based on 2007 receipts and payroll data from U.S. Census Bureau, Statistics of U.S. Businesses, 2007, and payroll data from U.S. Census Bureau, Statistics of U.S. Businesses, 2007. [c) U.S. Census Bureau, Statistics of U.S. Businesses, 2007. Fmt 4701 [d) Estimated from average of the yearly ratios of net income to total receipts as reported by the U.S. Internal Revenue Service, Corporation Source Book, 20002008. Data were not available at disaggregated levels for all industries; OSHA used profit rates at more highly aggregated levels for such industries. *Profit rate imputed from corresponding 3-digit NAICS industry. Sfmt 4725 **Profit rate imputed from corresponding 2-digit NAICS industry. Source: U.S. Department of Labor, OSHA, Directorate of Standards and Guidance, Office of Regulatory Analysis-Safety. E:\FR\FM\18NOR7.SGM 18NOR7 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 23:45 Nov 17, 2016 ER18NO16.282</GPH> Table V-32 Average Cost Impacts on Small Business Entities Affected by OSHA's Final Revision to Subparts D and I srobinson on DSK5SPTVN1PROD with RULES6 VerDate Sep<11>2014 Jkt 241001 Ratio of Average Estimated Receipts, 2007 PO 00000 NAICS 1131 1132 Industry Timber Tract Operations Forest Nurseries and Gathering Receipts per Entity Estimated Profits Estimated Cost Profit Rate [c] per Entity of the Final Rule Average Cost per Cost to Cost to Entity Revenues Profits $335,491 371 $904,288 3.46% * $31,320 $3,472 $9.36 0.001% 0.030% $102,025 154 $662,500 3.46% * $22,946 $1,603 $10.41 0.002% 0.045% $6,646,269 9,231 $719,994 3.46% * $24,937 $118,162 $12.80 0.002% 0.051% Fishing $1,025,214 2,039 $502,802 5.50% * $27,636 $19,368 $9.50 0.002% 0.034% 1142 Hunting and Trapping $91,616 312 $293,641 5.50% * $16,140 $2,974 $9.53 0.003% 0.059% 1153 Support Activities for Forestry $598,327 1,528 $391,575 4.60% * $18,011 $17,473 $11.44 0.003% 0.063% 2111 Oil and Gas Extraction $12,698,328 5,836 $2,175,862 13.95% $303,627 $363,229 $62.24 0.003% 0.020% $8,364,773 630 $13,277,417 4.33% $574,969 $165,917 $263.36 0.002% 0.046% E:\FR\FM\18NOR7.SGM 2212 $6,872,831 351 $19,580,715 3.12% $611,604 $23,257 $66.26 0.000% 0.011% $2,032,054 3,766 $539,579 5.44% $29,349 $12,918,006 $3,430.17 0.636% 11.688% $107,861 $116,158 $141.83 0.006% 0.131% $165,427 $43,318 $156.38 0.004% 0.095% Fmt 4701 Logging 1141 Sfmt 4725 Frm 00413 of Forest Products ($1 ,OOO)[a] Entities [b] Ratio of Average Average 1133 2211 2213 Electric Power Generation, Transmission and Distribution Natural Gas Distribution Water, Sewage and Other Systems 18NOR7 3111 Animal Food Manufacturing $2,065,748 819 $2,522,281 4.28% 3112 Grain and Oilseed Milling $1,071,553 277 $3,868,422 4.28% $929,203 1,587 $585,509 7.74% $45,311 $45,519 $28.68 0.005% 0.063% $1,176,242 684 $1,719,652 6.70% $115,168 $19,128 $27.96 0.002% 0.024% $1,352,029 620 $2,180,692 2.60% $56,706 $23,329 $37.63 0.002% 0.066% $3,158,449 2,262 $1,396,308 2.15% $30,024 $1,288,628 $569.69 0.041% 1.897% 3113 Sugar and Confectionery Product Manufacturing * Fruit and Vegetable Preserving 3114 and Specialty Food Manufacturing 3115 3116 Dairy Product Manufacturing Animal Slaughtering and Processing Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 23:45 Nov 17, 2016 Table V-33 Cost Impacts on Very Small Business Entities (Fewer than 20 Employees) Affected by OSHA's Final Revision to Subparts D and I (per Entity, by 4-Digit NAICS Code) 82905 ER18NO16.283</GPH> srobinson on DSK5SPTVN1PROD with RULES6 82906 VerDate Sep<11>2014 Jkt 241001 Estimated Receipts, 2007 NAICS PO 00000 3117 3118 Industry Seafood Product Preparation and Packaging Bakeries and Tortilla Frm 00414 Manufacturing ($1,000)[a] Average Entities [b] Receipts per Entity Ratio of Average of the Final Cost per Rule Entity $43,761 $9,316 $26.54 0.001% 0.061% Estimated Profits Profit Rate [c] Ratio of Estimated Cost per Entity Average Cost to Revenues Average Cost to Profits $714,342 351 $2,035,162 2.15% $3,254,708 7,651 $425,396 8.78% $37,346 $265,090 $34.65 0.008% 0.093% $86,323 $63,356 $35.47 0.002% 0.041% $70,136 $78,796 $28.95 0.003% 0.041% 3119 Other Food Manufacturing $2,874,924 1,786 $1,609,700 5.36% 3121 Beverage Manufacturing $2,861,636 2,722 $1,051,299 6.67% * * $210,222 40 $5,255,550 17.89% $939,974 $5,482 $137.04 0.003% 0.015% Fiber, Yarn, and Thread Mills $161,969 172 $941,680 3.45% * $32,473 $8,288 $48.19 0.005% 0.148% Fabric Mills $752,579 704 $1,069,004 3.45% * $36,864 $16,980 $24.12 0.002% 0.065% $968,489 942 $1,028,120 3.45% * $35,454 $84,783 $90.00 0.009% 0.254% 3141 Textile Furnishings Mills $1,206,278 2,053 $587,568 3.68% * $21,597 $159,838 $77.86 0.013% 0.360% 3149 Other Textile Product Mills $1,796,901 3,302 $544,186 3.68% * $20,002 $137,795 $41.73 0.008% 0.209% 3151 Apparel Knitting Mills $239,222 283 $845,307 2.87% $24,258 $37,967 $134.16 0.016% 0.553% $4,656,884 7,163 $650,130 5.00% $32,481 $104,981 $14.66 0.002% 0.045% $345,953 730 $473,908 3.92% $18,579 $11,984 $16.42 0.003% 0.088% $118,817 186 $638,801 5.36% * $34,212 $4,645 $24.97 0.004% 0.073% $147,147 206 $714,306 5.36% * $38,255 $5,090 $24.71 0.003% 0.065% $364,186 682 $533,997 5.36% * $28,599 $11,946 $17.52 0.003% 0.061% $2,832,987 2,626 $1,078,822 2.86% * $30,900 $58,933 $22.44 0.002% 0.073% 18NOR7 3132 E:\FR\FM\18NOR7.SGM Tobacco Manufacturing 3131 Sfmt 4725 Fmt 4701 3122 3133 3152 3159 3161 3162 3169 3211 ER18NO16.284</GPH> Textile and Fabric Finishing and Fabric Coating Mills Cut and Sew Apparel Manufacturing Apparel Accessories and Other Apparel Manufacturing Leather and Hide Tanning and Finishing Footwear Manufacturing Other Leather and Allied Product Manufacturing Sawmills and Wood Preservation Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 23:45 Nov 17, 2016 Table V-33 Cost Impacts on Very Small Business Entities (Fewer than 20 Employees) Affected by OSHA's Final Revision to Subparts D and I {per Entity, by 4-Digit NAICS Code) (continued) srobinson on DSK5SPTVN1PROD with RULES6 VerDate Sep<11>2014 Jkt 241001 Estimated NAICS Industry Average Receipts, 2007 Receipts per ($1 ,OOO)[a] Entities [b] Entity Estimated Profits Profit Rate [c] per Entity Estimated Cost Average of the Final Cost per Rule Entity Ratio of Average Cost to Revenues Ratio of Average Cost to Profits Veneer, Plywood, and PO 00000 3212 Engineered Wood Product Frm 00415 Fmt 4701 Sfmt 4725 E:\FR\FM\18NOR7.SGM 18NOR7 $826,879 735 $1,125,005 2.86% * $32,223 $17,531 $23.85 0.002% 0.074% $5,497,108 6,913 $795,184 2.86% * $22,776 $142,413 $20.60 0.003% 0.090% $171,342 85 $2,015,788 3.36% $67,715 $4,231 $49.78 0.002% 0.074% $2,449,745 1,434 $1,708,330 7.61% $129,981 $48,017 $33.48 0.002% 0.026% $15,154,719 26,396 $574,129 3.99% * $22,899 $528,799 $20.03 0.003% 0.087% $2,630,614 696 $3,779,618 7.34% * $277,280 $40,301 $57.90 0.002% 0.021% $2,982,163 753 $3,960,376 4.32% $171,027 $34,499 $45.82 0.001% 0.027% $1,288,686 356 $3,619,904 7.67% $277,596 $18,727 $52.60 0.001% 0.019% $1,173,567 445 $2,637,229 10.59% $279,347 $22,488 $50.53 0.002% 0.018% $1,748,241 852 $2,051,926 15.76% $323,473 $27,781 $32.61 0.002% 0.010% $1,714,532 1,009 $1,699,239 5.06% $85,916 $28,434 $28.18 0.002% 0.033% $4,456,775 1,419 $3,140,786 9.72% $305,268 $45,520 $32.08 0.001% 0.011% Manufacturing 3219 3221 3222 3231 3241 3251 Other Wood Product Manufacturing Pulp, Paper, and Paperboard Mills Converted Paper Product Manufacturing Printing and Related Support Activities Petroleum and Coal Products Manufacturing Basic Chemical Manufacturing Resin, Synthetic Rubber, and 3252 Artificial Synthetic Fibers and Filaments Manufacturing Pesticide, Fertilizer, and 3253 3254 3255 Other Agricultural Chemical Manufacturing Pharmaceutical and Medicine Manufacturing Paint, Coating, and Adhesive Manufacturing * Soap, Cleaning Compound, 3256 and Toilet Preparation Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 23:45 Nov 17, 2016 Table V-33 Cost Impacts on Very Small Business Entities (Fewer than 20 Employees) Affected by OSHA's Final Revision to Subparts D and I (per Entity, by 4-Digit NAICS Code) (continued) Manufacturing 82907 ER18NO16.285</GPH> srobinson on DSK5SPTVN1PROD with RULES6 82908 VerDate Sep<11>2014 Ratio of Estimated Receipts, 2007 Jkt 241001 Industry NAICS 3259 PO 00000 3261 Frm 00416 3262 3271 Fmt 4701 3272 Sfmt 4725 3273 3274 E:\FR\FM\18NOR7.SGM 3279 3311 3312 18NOR7 3313 Other Chemical Product and Average Estimated Profits Receipts per Entities [b] ($1 ,OOO)[a] Entity Profit Rate [c] per Entity Estimated Cost of the Final Cost per Rule Entity Ratio of Average Average Cost to Revenues Average Cost to Profits $2,270,151 1,476 $1,538,043 4.88% $75,079 $44,024 $29.83 0.002% 0.040% $6,380,425 5,175 $1,232,932 3.88% $47,797 $117,239 $22.65 0.002% 0.047% $1,016,240 961 $1,057,482 2.28% $24,129 $22,166 $23.07 0.002% 0.096% $562,304 991 $567,411 3.18% $18,031 $24,988 $25.22 0.004% 0.140% $1,014,564 1,403 $723,139 3.67% $26,553 $40,229 $28.67 0.004% 0.108% $4,685,193 3,200 $1,464,123 5.39% $78,859 $103,727 $32.41 0.002% 0.041% $249,479 150 $1,663,193 5.39% * $89,582 $9,884 $65.90 0.004% 0.074% $2,086,188 2,199 $948,698 4.57% * $43,379 $62,365 $28.36 0.003% 0.065% $2,056,197 532 $3,865,032 4.85% $187,594 $21,759 $40.90 0.001% 0.022% $657,376 278 $2,364,662 4.85% $114,772 $22,233 $79.98 0.003% 0.070% $681,201 220 $3,096,368 4.74% $146,819 $8,652 $39.33 0.001% 0.027% $1,409,782 420 $3,356,624 4.50% $150,928 $15,143 $36.06 0.001% 0.024% Foundries $1,026,010 945 $1,085,725 4.70% $51,021 $29,036 $30.73 0.003% 0.060% Forging and Stamping $1,579,508 1,237 $1,276,886 4.60% $58,680 $29,948 $24.21 0.002% 0.041% $835,570 982 $850,886 5.17% $44,029 $24,435 $24.88 0.003% 0.057% Preparation Manufacturing Plastics Product Manufacturing Rubber Product Manufacturing Clay Product and Refractory Manufacturing Glass and Glass Product Manufacturing Cement and Concrete Product Manufacturing Lime and Gypsum Product Manufacturing Other Nonmetallic Mineral Product Manufacturing Iron and Steel Mills and Ferroalloy Manufacturing Steel Product Manufacturing from Purchased Steel Alumina and Aluminum Production and Processing * Nonferrous Metal (except 3314 Aluminum) Production and * Processing 3315 3321 3322 ER18NO16.286</GPH> Cutlery and Handtool Manufacturing Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 23:45 Nov 17, 2016 Table V-33 Cost Impacts on Very Small Business Entities (Fewer than 20 Employees) Affected by OSHA's Final Revision to Subparts D and I (per Entity, by 4-Digit NAICS Code) (continued) srobinson on DSK5SPTVN1PROD with RULES6 VerDate Sep<11>2014 Table V-33 to Subparts D and I (per Entity, by 4-Digit NAICS Code) (continued) Jkt 241001 Estimated NAICS PO 00000 3323 3324 Frm 00417 3325 3326 Industry Architectural and Structural Metals Manufacturing Boiler, Tank, and Shipping Container Manufacturing Hardware Manufacturing Spring and Wire Product Manufacturing Average Receipts, 2007 Receipts per ($1 ,OOO)[a] Entities [b] Entity Estimated Profits Profit Rate [c] per Entity Estimated Cost Average of the Final Cost per Rule Entity Ratio of Average Cost to Revenues Ratio of Average Cost to Profits Fmt 4701 Sfmt 4725 E:\FR\FM\18NOR7.SGM 18NOR7 $9,287,056 8,801 $1,055,227 4.63% $48,813 $192,805 $21.91 0.002% 0.045% $930,447 650 $1,431,457 3.69% $52,764 $17,305 $26.62 0.002% 0.050% $523,764 425 $1,232,386 5.17% * $63,770 $11,271 $26.52 0.002% 0.042% $891,955 918 $971,629 5.17% * $50,277 $29,673 $32.32 0.003% 0.064% $13,479,668 19,866 $678,530 5.71% * $38,736 $443,836 $22.34 0.003% 0.058% $3,589,774 3,891 $922,584 4.59% $42,309 $83,321 $21.41 0.002% 0.051% $3,828,778 3,914 $978,226 6.76% $66,171 $90,917 $23.23 0.002% 0.035% $2,415,764 1,698 $1,422,711 6.07% $86,318 $50,866 $29.96 0.002% 0.035% $2,596,623 2,406 $1,079,228 6.27% $67,625 $57,265 $23.80 0.002% 0.035% $1,703,014 1,427 $1 '193,423 4.56% $54,431 $36,488 $25.57 0.002% 0.047% $1,488,447 852 $1,747,004 4.26% $74,387 $20,194 $23.70 0.001% 0.032% $4,516,187 5,710 $790,926 5.10% $40,343 $140,209 $24.56 0.003% 0.061% Machine Shops; Turned 3327 Product; and Screw, Nut, and Bolt Manufacturing 3328 3329 Coating, Engraving, Heat Treating, and Allied Activities Other Fabricated Metal Product Manufacturing Agriculture, Construction, 3331 and Mining Machinery Manufacturing 3332 Industrial Machinery Manufacturing Commercial and Service 3333 Industry Machinery Manufacturing Ventilation, Heating, Air- 3334 Conditioning, and Commercial Refrigeration Equipment Manufacturing 3335 Metalworking Machinery Manufacturing Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 23:45 Nov 17, 2016 Cost Impacts on Very Small Business Entities (Fewer than 20 Employees) Affected by OSHA's Final Revision 82909 ER18NO16.287</GPH> srobinson on DSK5SPTVN1PROD with RULES6 82910 VerDate Sep<11>2014 Estimated Jkt 241001 Receipts, 2007 NAICS Industry ($1 ,OOO)[a] Average Entities [b] Raceipts per Entity Estimated Profits Profit Rate [c] per Entity Estimated Cost Average of the Final Cost per Rule Entity Ratio of Average Cost to Revenues Ratio of Average Cost to Profits Engine, Turbine, and Power PO 00000 3336 Transmission Equipment Frm 00418 Fmt 4701 Sfmt 4725 E:\FR\FM\18NOR7.SGM 18NOR7 $674,860 412 $1,638,010 2.67% $43,705 $11,282 $27.38 0.002% 0.063% $4,485,758 3,478 $1,289,752 4.94% $63,726 $84,836 $24.39 0.002% 0.038% $1,184,942 861 $1,376,239 8.55% $117,712 $20,516 $23.83 0.002% 0.020% $1,214,742 970 $1,252,311 4.50% $56,317 $25,967 $26.77 0.002% 0.048% $1,134,996 386 $2,940,404 3.71% $108,977 $9,458 $24.50 0.001% 0.022% $2,663,466 2,340 $1,138,233 6.48% $73,790 $62,019 $26.50 0.002% 0.036% $3,459,177 3,011 $1 '148,847 5.92% $68,043 $73,363 $24.36 0.002% 0.036% $472,619 604 $782,482 3.71% $29,000 $13,201 $21.86 0.003% 0.075% $757,044 739 $1,024,417 4.08% $41,748 $16,649 $22.53 0.002% 0.054% $215,667 182 $1,184,984 4.08% $48,292 $16,513 $90.73 0.008% 0.188% $1,609,761 1,349 $1,193,299 6.93% $82,723 $34,450 $25.54 0.002% 0.031% $1,396,826 1,053 $1,326,520 5.01% $66,510 $27,925 $26.52 0.002% 0.040% Manufacturing 3339 3341 3342 3343 Other General Purpose Machinery Manufacturing Computer and Peripheral Equipment Manufacturing Communications Equipment Manufacturing Audio and Video Equipment Manufacturing Semiconductor and Other 3344 Electronic Component Manufacturing Navigational, Measuring, 3345 Electromedical, and Control Instruments Manufacturing Manufacturing and 3346 Reproducing Magnetic and * Optical Media 3351 3352 3353 Electric Lighting Equipment Manufacturing Household Appliance Manufacturing Electrical Equipment Manufacturing Other Electrical Equipment 3359 and Component Manufacturing ER18NO16.288</GPH> Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 23:45 Nov 17, 2016 Table V-33 Cost Impacts on Very Small Business Entities (Fewer than 20 Employees) Affected by OSHA's Final Revision to Subparts D and I (per Entity, by 4-Digit NAICS Code) (continued) srobinson on DSK5SPTVN1PROD with RULES6 VerDate Sep<11>2014 Estimated Receipts, 2007 Jkt 241001 NAICS 3361 PO 00000 3362 3363 Frm 00419 3364 Fmt 4701 3365 3366 Sfmt 4725 3369 Average Entities [b] Receipts per Ratio of Average of the Final Cost per Rule Entity $36,805 $8,377 $42.10 0.001% 0.114% Estimated Profits Profit Rate [c] per Entity Average Cost to Revenues Average Cost to Industry ($1 ,OOO)[a] Motor Vehicle Manufacturing $673,906 199 $3,386,462 1.09% $1,316,723 1,099 $1,198,110 1.09% * $13,022 $26,013 $23.67 0.002% 0.182% $3,143,710 2,604 $1,207,262 1.09% * $13,121 $61,697 $23.69 0.002% 0.181% $952,110 778 $1,223,792 4.52% $55,362 $23,745 $30.52 0.002% 0.055% $178,826 78 $2,292,641 2.30% $52,760 $5,005 $64.16 0.003% 0.122% $912,085 1,132 $805,729 6.14% $49,451 $49,509 $43.74 0.005% 0.088% $870,578 787 $1,106,198 6.07% $67,178 $23,746 $30.17 0.003% 0.045% $7,068,716 13,942 $507,009 4.02% * $20,371 $256,512 $18.40 0.004% 0.090% $2,187,158 2,542 $860,408 4.02% * $34,570 $55,008 $21.64 0.003% 0.063% $497,967 599 $831,331 4.02% * $33,402 $12,149 $20.28 0.002% 0.061% $4,979,198 9,679 $514,433 9.84% $50,608 $208,813 $21.57 0.004% 0.043% $10,214,575 15,011 $680,473 5.38% $36,642 $295,958 $19.72 0.003% 0.054% $33,451 ,668 14,357 $2,329,990 2.25% $52,458 $501,763 $34.95 0.001% 0.067% $18,262,085 9,080 $2,011,243 2.74% $55,103 $179,423 $19.76 0.001% 0.036% Motor Vehicle Body and Trailer Manufacturing Motor Vehicle Parts Manufacturing Aerospace Product and Parts Manufacturing Railroad Rolling Stock Manufacturing Ship and Boat Building Other Transportation Equipment Manufacturing Entity Ratio of Estimated Cost * Profits Household and Institutional E:\FR\FM\18NOR7.SGM 3371 18NOR7 3391 Furniture and Kitchen Cabinet Manufacturing 3372 3379 3399 Office Furniture (including Fixtures) Manufacturing Other Furniture Related Product Manufacturing Medical Equipment and Supplies Manufacturing Other Miscellaneous Manufacturing Motor Vehicle and Motor 4231 Vehicle Parts and Supplies Merchant Wholesalers Furniture and Home 4232 Furnishing Merchant * 82911 Wholesalers ER18NO16.289</GPH> Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 23:45 Nov 17, 2016 Table V-33 Cost Impacts on Very Small Business Entities (Fewer than 20 Employees) Affected by OSHA's Final Revision to Subparts D and I (per Entity, by 4-Digit NAICS Code) (continued) srobinson on DSK5SPTVN1PROD with RULES6 82912 VerDate Sep<11>2014 Estimated Receipts, 2007 Jkt 241001 NAICS Industry ($1 ,OOO)[a] Average Entities [b] Receipts per Entity Estimated Profits Profit Rate [c] per Entity Estimated Cost Average of the Final Cost per Rule Entity Ratio of Average Cost to Revenues Ratio of Average Cost to Profits Lumber and Other 4233 Construction Materials PO 00000 Frm 00420 Fmt 4701 $25,935,646 10,114 $2,564,331 2.70% $69,186 $293,753 $29.04 0.001% 0.042% $38,820,283 22,167 $1,751,265 2.66% $46,583 $771,584 $34.81 0.002% 0.075% $32,860,040 5,660 $5,805,661 2.79% $162,095 $141,848 $25.06 0.000% 0.015% $46,511,965 16,343 $2,845,987 2.13% $60,589 $501,217 $30.67 0.001% 0.051% $19,118,111 8,995 $2,125,415 3.18% $67,513 $330,580 $36.75 0.002% 0.054% $80,469,787 35,458 $2,269,440 3.49% $79,173 $1,434,641 $40.46 0.002% 0.051% $63,584,707 27,588 $2,304,796 2.74% $63,145 $624,737 $22.65 0.001% 0.036% $13,922,220 7,623 $1,826,344 2.02% $36,952 $147,058 $19.29 0.001% 0.052% $11 ,642,767 5,110 $2,278,428 3.42% $78,004 $95,993 $18.79 0.001% 0.024% $27,245,980 13,010 $2,094,234 4.68% $98,073 $221,939 $17.06 0.001% 0.017% Merchant Wholesalers Professional and Commercial 4234 Equipment and Supplies Merchant Wholesalers Metal and Mineral (except 4235 Petroleum) Merchant Wholesalers Electrical and Electronic 4236 Goods Merchant Sfmt 4725 Wholesalers Hardware, and Plumbing and E:\FR\FM\18NOR7.SGM 4237 18NOR7 4239 Heating Equipment and Supplies Merchant Wholesalers Machinery, Equipment, and 4238 Supplies Merchant Wholesalers Miscellaneous Durable Goods Merchant Wholesalers 4241 Paper and Paper Product Merchant Wholesalers Drugs and Druggists' 4242 Sundries Merchant Wholesalers Apparel, Piece Goods, and 4243 Notions Merchant Wholesalers ER18NO16.290</GPH> Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 23:45 Nov 17, 2016 Table V-33 Cost Impacts on Very Small Business Entities (Fewer than 20 Employees) Affected by OSHA's Final Revision to Subparts D and I (per Entity, by 4-Digit NAICS Code) (continued) srobinson on DSK5SPTVN1PROD with RULES6 VerDate Sep<11>2014 Jkt 241001 Estimated NAICS 4244 PO 00000 4245 Frm 00421 4246 Industry Grocery and Related Product Wholesalers Farm Product Raw Material Merchant Wholesalers Chemical and Allied Products Merchant Wholesalers Average Receipts, 2007 Receipts per ($1 ,OOO)[a] Entities [b] Entity Estimated Profits Profit Rate [c] per Entity Estimated Cost Average of the Final Cost per Rule Entity Ratio of Average Cost to Revenues Ratio of Average Cost to Profits Fmt 4701 $80,915,470 22,501 $3,596,083 2.81% $101,027 $472,400 $20.99 0.001% 0.021% $25' 139,956 3,154 $7,970,817 2.03% $161,522 $68,999 $21.88 0.000% 0.014% $22,290,891 6,866 $3,246,561 3.26% $105,785 $195,123 $28.42 0.001% 0.027% $45,454,555 3,322 $13,682,888 1.90% $259,797 $149,032 $44.86 0.000% 0.017% $5,130,058 2,034 $2,522,152 3.77% $95,079 $46,415 $22.82 0.001% 0.024% $42,740,152 22,114 $1,932,719 2.93% $56,687 $415,471 $18.79 0.001% 0.033% $238,856,931 51,680 $4,621,845 7.55% $349,068 $1,352,827 $26.18 0.001% 0.007% $23,559 $976,862 $30.61 0.001% 0.130% Petroleum and Petroleum 4247 Products Merchant Wholesalers Beer, Wine, and Distilled Sfmt 4725 4248 E:\FR\FM\18NOR7.SGM 4249 Alcoholic Beverage Merchant Wholesalers Miscellaneous Nondurable Goods Merchant Wholesalers Wholesale Electronic 4251 Markets and Agents and * Brokers 18NOR7 4411 Automobile Dealers $76,951,315 31,917 $2,410,982 0.98% 4412 Other Motor Vehicle Dealers $24,554,359 13,141 $1,868,530 2.52% ** $47,116 $361,426 $27.50 0.001% 0.058% $23,913,475 30,240 $790,790 1.24% * $9,821 $751,181 $24.84 0.003% 0.253% 4413 Automotive Parts, Accessories, and Tire Stores 4421 Furniture Stores $16,108,088 18,005 $894,645 3.06% * $27,337 $325,614 $18.08 0.002% 0.066% 4422 Home Furnishings Stores $19,194,753 24,937 $769,730 3.06% * $23,520 $533,143 $21.38 0.003% 0.091% $21,198,389 28,687 $738,955 3.29% * $24,298 $658,984 $22.97 0.003% 0.095% $44,680,922 38,531 $1,159,610 7.66% * $88,863 $985,880 $25.59 0.002% 0.029% 4431 4441 Electronics and Appliance Stores Building Material and Supplies Dealers 82913 ER18NO16.291</GPH> Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 23:45 Nov 17, 2016 Table V-33 Cost Impacts on Very Small Business Entities (Fewer than 20 Employees) Affected by OSHA's Final Revision to Subparts D and I (per Entity, by 4-Digit NAICS Code) (continued) srobinson on DSK5SPTVN1PROD with RULES6 Receipts, 2007 Jkt 241001 Industry NAICS 4442 PO 00000 4451 4452 Frm 00422 4453 4461 Lawn and Garden Equipment and Supplies Stores ($1,000)[a] $15,823,886 Average Entities [b] Receipts per Entity Estimated Profits Profit Rate [c] 14,726 $1,074,554 1.81% ** per Entity $19,406 Estimated Cost Average of the Final Cost per Rule Entity $333,394 $22.64 Ratio of Average Cost to Revenues 0.002% Ratio of Average Cost to Profits 0.117% Grocery Stores $42,786,245 57,220 $747,750 2.00% * $14,973 $672,311 $11.75 0.002% 0.078% Specialty Food Stores $11,369,036 21,967 $517,551 2.00% * $10,363 $298,109 $13.57 0.003% 0.131% $23,311,870 26,079 $893,894 2.07% * $18,494 $309,639 $11.87 0.001% 0.064% $51,251,763 39,978 $1,281,999 3.06% * $39,178 $546,497 $13.67 0.001% 0.035% Beer, Wine, and Liquor Stores Health and Personal Care Fmt 4701 Stores Sfmt 4725 E:\FR\FM\18NOR7.SGM 18NOR7 4471 Gasoline Stations $136,136,010 60,944 $2,233,789 0.86% * $19,168 $1,422,279 $23.34 0.001% 0.122% 4481 Clothing Stores $19,159,562 38,954 $491,851 5.15% * $25,335 $581,858 $14.94 0.003% 0.059% 4482 Shoe Stores $3,686,713 6,177 $596,845 5.15% * $30,743 $63,979 $10.36 0.002% 0.034% $13,320,887 18,537 $718,611 5.15% * $37,015 $333,541 $17.99 0.003% 0.049% $16,513,942 30,028 $549,951 2.62% * $14,401 $576,122 $19.19 0.003% 0.133% $3,370,695 8,449 $398,946 2.62% * $10,447 $115,897 $13.72 0.003% 0.131% $153,401 340 $451,179 4.15% * $18,719 $5,661 $16.65 0.004% 0.089% $4,396,395 9,408 $467,304 4.15% * $19,388 $162,282 $17.25 0.004% 0.089% $5,114,023 18,405 $277,861 3.23% * $8,972 $201,905 $10.97 0.004% 0.122% $10,315,311 27,053 $381,300 3.23% * $12,312 $428,235 $15.83 0.004% 0.129% $4,674,662 12,084 $386,847 3.23% * $12,491 $176,952 $14.64 0.004% 0.117% $27,496,826 35,066 $784,145 3.23% * $25,319 $763,589 $21.78 0.003% 0.086% $15,013,728 13,757 $1,091,352 3.75% * $40,953 $197,881 $14.38 0.001% 0.035% 4483 4511 4512 4521 4529 4531 4533 4539 4541 Jewelry, Luggage, and Leather Goods Stores Sporting Goods, Hobby, and Musical Instrument Stores Book, Periodical, and Music Stores Department Stores Other General Merchandise Stores Florists Office Supplies, Stationery, and Gift Stores Used Merchandise Stores Other Miscellaneous Store Retailers Electronic Shopping and Mail-Order Houses Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 23:45 Nov 17, 2016 Estimated 4532 ER18NO16.292</GPH> 82914 VerDate Sep<11>2014 Table V-33 Cost Impacts on Very Small Business Entities (Fewer than 20 Employees) Affected by OSHA's Final Revision to Subparts D and I (per Entity, by 4-Digit NAICS Code) {continued) srobinson on DSK5SPTVN1PROD with RULES6 VerDate Sep<11>2014 Estimated Jkt 241001 Receipts, 2007 NAICS ($1,000)[a] Entities [b] Receipts per Entity Estimated Profits Profit Rate [c] per Entity Estimated Cost Average of the Final Cost per Rule Entity Ratio of Average Cost to Revenues Ratio of Average Cost to Profits PO 00000 Frm 00423 Fmt 4701 Sfmt 4725 4542 Vending Machine Operators $2,148,565 4,200 $511,563 3.75% * $19,196 $139,090 $33.12 0.006% 0.173% 4543 Direct Selling Establishments $20,664,119 18,151 $1 '138,456 3.75% * $42,720 $450,544 $24.82 0.002% 0.058% 4811 Scheduled Air Transportation $537,306 375 $1,432,816 2.57% * $36,799 $15,926 $42.47 0.003% 0.115% $2,249,805 1,966 $1,144,357 2.57% * $29,391 $167,459 $85.18 0.007% 0.290% $1 '172,391 629 $1,863,897 6.37% * $118,657 $126,034 $200.37 0.011% 0.169% $486,388 465 $1,045,996 6.21% * $64,946 $143,621 $308.86 0.030% 0.476% $33,568 $1,031,369 $19.46 0.004% 0.058% 4812 Nonscheduled Air Transportation Deep Sea, Coastal, and 4831 Great Lakes Water Transportation E:\FR\FM\18NOR7.SGM 18NOR7 4832 Inland Water Transportation 4841 General Freight Trucking $28,653,374 53,000 $540,630 6.21% * 4842 Specialized Freight Trucking $24,476,198 43,755 $559,392 2.51% * $14,065 $887,392 $20.28 0.004% 0.144% 4851 Urban Transit Systems $170,505 408 $417,904 2.51% * $10,508 $34,651 $84.93 0.020% 0.808% $71,672 156 $459,436 2.13% * $9,784 $12,140 $77.82 0.017% 0.795% $2,123,731 6,692 $317,354 2.13% * $6,758 $137,453 $20.54 0.006% 0.304% $516,198 2,107 $244,992 2.13% * $5,217 $83,737 $39.74 0.016% 0.762% $415,346 776 $535,240 2.13% * $11,398 $28,219 $36.37 0.007% 0.319% $813,347 2,464 $330,092 2.13% * $7,029 $85,492 $34.70 0.011% 0.494% $43,441 28 $1,551,464 13.23% * $205,250 $2,660 $95.00 0.006% 0.046% $226,559 63 $3,596,167 13.23% * $475,752 $5,338 $84.73 0.002% 0.018% $77,499 35 $2,214,257 13.23% * $292,933 $1,900 $54.30 0.002% 0.019% $240,790 536 $449,235 13.23% * $59,431 $13,258 $24.73 0.006% 0.042% 4852 4853 4854 4855 4859 4861 4862 4869 4871 Interurban and Rural Bus Transportation Taxi and Limousine Service School and Employee Bus Transportation Charter Bus Industry Other Transit and Ground Passenger Transportation Pipeline Transportation of Crude Oil Pipeline Transportation of Natural Gas Other Pipeline Transportation Scenic and Sightseeing Transportation, Land 82915 ER18NO16.293</GPH> Industry Average Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 23:45 Nov 17, 2016 Table V-33 Cost Impacts on Very Small Business Entities (Fewer than 20 Employees) Affected by OSHA's Final Revision to Subparts D and I {per Entity, by 4-Digit NAICS Code) {continued) srobinson on DSK5SPTVN1PROD with RULES6 82916 VerDate Sep<11>2014 Estimated Jkt 241001 Receipts, 2007 NAICS 4872 PO 00000 4879 Frm 00424 4881 4882 Fmt 4701 4883 Sfmt 4725 4884 4885 E:\FR\FM\18NOR7.SGM 4889 4921 4922 18NOR7 4931 5111 5112 5121 5122 5151 ER18NO16.294</GPH> Industry Scenic and Sightseeing Transportation, Water Scenic and Sightseeing Transportation, Other Support Activities for Air Transportation Support Activities for Rail Transportation Support Activities for Water Transportation Support Activities for Road Transportation Freight Transportation Arrangement Other Support Activities for Transportation Couriers Local Messengers and Local Delivery Warehousing and Storage Newspaper, Periodical, Book, and Directory Publishers Software Publishers Motion Picture and Video Industries Sound Recording Industries Radio and Television Broadcasting ($1 ,OOO)[a] Average Entities [b] Receipts per Entity Estimated Profits Profit Rate [c] per Entity Estimated Cost Average of the Final Cost per Rule Entity Ratio of Average Cost to Revenues Ratio of Average Cost to Profits $635,038 1,717 $369,853 4.42% . $16,360 $57,923 $33.74 0.009% 0.206% $96,661 171 $565,269 4.42% * $25,004 $8,701 $50.88 0.009% 0.203% $2,270,226 3,385 $670,672 4.42% .. $29,667 $215,904 $63.78 0.010% 0.215% $353,878 335 $1,056,352 3.19% ** $33,709 $40,621 $121.26 0.011% 0.360% $1 '183,478 1,404 $842,933 3.19% .. $26,899 $57,447 $40.92 0.005% 0.152% $3,568,487 8,660 $412,065 3.19% ** $13,149 $264,757 $30.57 0.007% 0.233% $13,522,609 11,567 $1,169,068 3.19% .. $37,306 $243,147 $21.02 0.002% 0.056% $667,588 1,381 $483,409 3.19% ** $15,426 $21,040 $15.24 0.003% 0.099% $1,561,375 3,321 $470,152 3.19% ** $15,003 $75,774 $22.82 0.005% 0.152% $1,649,091 3,918 $420,901 3.19% $13,431 $68,183 $17.40 0.004% 0.130% $3,746,452 3,827 $978,953 4.59% $44,915 $81 '179 $21.21 0.002% 0.047% $8,965,402 14,080 $636,747 11.69% $313,825 $22.29 0.004% 0.030% $4,271,962 4,524 $944,289 16.22% . $74,406 $153,175 $163,281 $36.09 0.004% 0.024% $11,216,140 16,359 $685,625 6.24% ** $42,752 $368,305 $22.51 0.003% 0.053% $1,654,218 3,425 $482,983 7.26% ** $35,081 $206,089 $60.17 0.012% 0.172% $1,956,657 3,621 $540,364 6.79% $36,665 $137,264 $37.91 0.007% 0.103% .. . . . Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 23:45 Nov 17, 2016 Table V-33 Cost Impacts on Very Small Business Entities (Fewer than 20 Employees) Affected by OSHA's Final Revision to Subparts D and I (per Entity, by 4-Digit NAICS Code) (continued) srobinson on DSK5SPTVN1PROD with RULES6 VerDate Sep<11>2014 Jkt 241001 Estimated NAICS 5152 PO 00000 5161 Frm 00425 5171 Cable and Other Subscription Programming Internet Publishing and Broadcasting Wired Telecommunications Carriers Receipts per ($1 ,OOO)[a] Entities [b] Entity Profit Rate [c] Fmt 4701 Telecommunications Carriers Sfmt 4725 E:\FR\FM\18NOR7.SGM 18NOR7 293 $1,520,055 6.79% $1,339,867 2,074 $646,030 7.06% $1,935,085 1,393 $1,389,149 6.40% $1,222,843 1,452 $842,178 6.40% $3,308,774 2,789 $1,186,366 6.40% $545,539 478 $1,141,295 6.40% $764,231 802 $952,906 6.40% $916,967 1,176 $779,734 6.40% $2,172,820 3,350 $648,603 7.21% $4,575,616 6,048 $756,550 7.21% $1 '136,006 2,988 $380,189 8.78% $63,481 39 $1,627,718 5.83% $10,303,960 7,589 $1,357,749 9.42% $15,089,018 20,967 $719,656 7.53% . . . $11 ,348,802 26,119 $434,504 10.33% ** (except Satellite) 5173 5174 5175 5179 5181 5182 5191 5211 5222 5223 Telecommunications Resellers Satellite Telecommunications Cable and Other Program Distribution Other Telecommunications Internet Service Providers and Web Search Portals Data Processing, Hosting, and Related Services Other Information Services Monetary Authorities Central Bank Depository Credit Intermediation Nondepository Credit Intermediation Activities Related to Credit Average of the Final Cost per Rule Entity $103,139 $92,702 $316.39 0.021% 0.307% $45,609 $157,333 $75.86 0.012% 0.166% $88,955 $115,886 $83.19 0.006% 0.094% $53,929 $56,728 $39.07 0.005% 0.072% $75,970 $320,493 $114.91 0.010% 0.151% $73,084 $145,413 $304.21 0.027% 0.416% $61,020 $42,280 $52.72 0.006% 0.086% $49,931 $174,645 $148.51 0.019% 0.297% $46,756 $177,233 $52.91 0.008% 0.113% $54,537 $151,854 $25.11 0.003% 0.046% . $33,379 $168,039 $56.24 0.015% 0.168% $94,958 $3,874 $99.32 0.006% 0.105% $127,843 $93,962 $12.38 0.001% 0.010% $54,224 $213,631 $10.19 0.001% 0.019% $44,887 $285,342 $10.92 0.003% 0.024% per Entity Average Cost to Revenues Average Cost to Profits 82917 Intermediation . . . . . . . . . . $445,376 Ratio of Estimated Cost Estimated Profits Wireless 5172 5221 ER18NO16.295</GPH> Industry Average Receipts, 2007 Ratio of Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 23:45 Nov 17, 2016 TableV-33 Cost Impacts on Very Small Business Entities (Fewer than 20 Employees) Affected by OSHA's Final Revision to Subparts D and I (per Entity, by 4-Digit NAICS Code) (continued) srobinson on DSK5SPTVN1PROD with RULES6 82918 VerDate Sep<11>2014 Jkt 241001 Estimated PO 00000 NAICS Industry 5231 Contracts Intermediation and Average Receipts, 2007 Receipts per ($1 ,OOO)[a] Entities [b] Entity Estimated Profits Profit Rate [c] per Entity Estimated Cost Average of the Final Cost per Rule Entity Ratio of Average Cost to Revenues Ratio of Average Cost to Profits Securities and Commodity Frm 00426 Fmt 4701 Sfmt 4725 E:\FR\FM\18NOR7.SGM 18NOR7 $12,849,193 12,049 $1,066,412 5.99% * $63,835 $138,785 $11.52 0.001% 0.018% $102,641 107 $959,265 5.99% * $57,422 $2,830 $26.45 0.003% 0.046% $38,925,295 42,067 $925,317 31.09% * $287,637 $440,498 $10.47 0.001% 0.004% $7,474,769 6,199 $1,205,802 4.56% * $55,018 $75,082 $12.11 0.001% 0.022% $51,149,567 126,015 $405,901 4.56% * $18,520 $1 '115,783 $8.85 0.002% 0.048% $4,149,107 1,965 $2,111,505 65.69% * $1,386,955 $28,360 $14.43 0.001% 0.001% $62,856,475 91,585 $686,318 13.62% * $93,467 $1,452,695 $15.86 0.002% 0.017% $49,266,887 100,495 $490,242 8.22% * $40,291 $1,071,829 $10.67 0.002% 0.026% $26,694,360 68,879 $387,554 13.62% * $52,779 $949,172 $13.78 0.004% 0.026% $3,112,600 4,140 $751,836 2.43% ** $18,296 $47,935 $11.58 0.002% 0.063% Brokerage 5232 5239 5241 Securities and Commodity Exchanges Other Financial Investment Activities Insurance Carriers Agencies, Brokerages, and 5242 Other Insurance Related Activities 5259 5311 5312 5313 5321 Other Investment Pools and Funds Lessors of Real Estate Offices of Real Estate Agents and Brokers Activities Related to Real Estate Automotive Equipment Rental and Leasing 5322 Consumer Goods Rental $3,801,386 10,893 $348,975 3.69% * $12,874 $113,211 $10.39 0.003% 0.081% 5323 General Rental Centers $1,842,468 2,867 $642,647 3.69% * $23,707 $42,492 $14.82 0.002% 0.063% $7,140,211 7,207 $990,733 5.35% ** $53,022 $103,379 $14.34 0.001% 0.027% $3,197,850 2,051 $1,559,166 29.11% * $453,819 $16,335 $7.96 0.001% 0.002% Commercial and Industrial 5324 Machinery and Equipment Rental and Leasing Lessors of Nonfinancial 5331 Intangible Assets (except Copyrighted Works) ER18NO16.296</GPH> Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 23:45 Nov 17, 2016 Table V-33 Cost Impacts on Very Small Business Entities (Fewer than 20 Employees) Affected by OSHA's Final Revision to Subparts D and I (per Entity, by 4-Digit NAICS Code) (continued) srobinson on DSK5SPTVN1PROD with RULES6 VerDate Sep<11>2014 Jkt 241001 Estimated NAICS 5411 Industry Legal Services Average Receipts, 2007 Receipts per ($1 ,OOO)[a] Entities [b] Entity Estimated Profits Profit Rate [c] per Entity Estimated Cost Average of the Final Cost per Rule Entity Ratio of Average Cost to Revenues Ratio of Average Cost to Profits PO 00000 173,334 $498,006 8.86% ** $44,144 $2,043,531 $11.79 0.002% 0.027% $31 ,004,051 101,937 $304,149 7.81% ** $23,756 $1,289,515 $12.65 0.004% 0.053% $49,779,421 90,424 $550,511 4.79% ** $26,342 $1,571,948 $17.38 0.003% 0.066% $16,869,744 33,480 $503,875 5.48% ** $27,600 $470,029 $14.04 0.003% 0.051% $47,470,852 96,593 $491,452 5.02% ** $24,655 $1,391,906 $14.41 0.003% 0.058% $62,747,767 136,280 $460,433 7.49% ** $34,483 $1,926,990 $14.14 0.003% 0.041% $8,652,898 10,974 $788,491 2.14% ** $16,903 $233,457 $21.27 0.003% 0.126% $25,585,465 33,795 $757,078 5.13% ** $38,867 $6,589,286 $194.98 0.026% 0.502% $28,685,212 59,528 $481,878 6.72% ** $32,389 $709,639 $11.92 0.002% 0.037% $9,968,751 5,719 $1,743,093 6.72% ** $117,161 $92,777 $16.22 0.001% 0.014% $14,369,977 22,481 $639,205 12.73% * $81,381 $339,828 $15.12 0.002% 0.019% Accounting, Tax Preparation, 5412 Bookkeeping, and Payroll Services Frm 00427 5413 Fmt 4701 5415 Sfmt 4725 $86,321 ,366 5414 Architectural, Engineering, and Related Services Specialized Design Services Computer Systems Design and Related Services Management, Scientific, and 5416 Technical Consulting Services E:\FR\FM\18NOR7.SGM 5417 18NOR7 5511 5418 5419 5611 Scientific Research and Development Services Advertising and Related Services Other Professional, Scientific, and Technical Services Management of Companies and Enterprises Office Administrative Services 5612 Facilities Support Services $1,024,783 978 $1,047,835 4.21% * $44,071 $22,864 $23.38 0.002% 0.053% 5613 Employment Services $6,422,772 14,288 $449,522 4.21% ** $18,906 $185,941 $13.01 0.003% 0.069% Business Support Services $11 ,223,697 25,890 $433,515 2.66% * $11,549 $298,570 $11.53 0.003% 0.100% $6,855,300 15,806 $433,715 4.21% ** $18,242 $154,950 $9.80 0.002% Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 23:45 Nov 17, 2016 Table V-33 Cost Impacts on Very Small Business Entities (Fewer than 20 Employees) Affected by OSHA's Final Revision to Subparts D and I (per Entity, by 4-Digit NAICS Code) (continued) 0.054% 5614 5615 Travel Arrangement and Reservation Services 82919 ER18NO16.297</GPH> srobinson on DSK5SPTVN1PROD with RULES6 82920 VerDate Sep<11>2014 Jkt 241001 Estimated NAICS 5616 PO 00000 5617 Investigation and Security Services Services to Buildings and Dwellings Frm 00428 5619 Other Support Services 5621 Waste Collection Fmt 4701 5622 5629 Sfmt 4725 6111 E:\FR\FM\18NOR7.SGM 6112 6113 Waste Treatment and Disposal Remediation and Other Waste Management Services Elementary and Secondary Schools Junior Colleges Colleges, Universities, and Professional Schools Receipts per ($1,000)[a] Entities [b] Entity Estimated Profits Profit Rate [c] per Entity Estimated Cost Average of the Final Cost per Rule Entity Average Cost to Revenues Ratio of Average Cost to Profits 18NOR7 $6,349,455 16,410 $386,926 3.30% * $12,779 $234,090 $14.27 0.004% 0.112% $46,551 ,737 160,667 $289,741 4.21% * $12,186 $82,401 ,545 $512.87 0.177% 4.209% $11 ,505,781 16,611 $692,660 4.21% * $29,132 $236,800 $14.26 0.002% 0.049% $5,000,141 6,550 $763,380 5.44% * $41,531 $116,202 $17.74 0.002% 0.043% $1,332,275 1,277 $1,043,285 4.79% * $49,948 $51,484 $40.32 0.004% 0.081% $4,410,114 6,739 $654,417 4.79% * $31,330 $137,596 $20.42 0.003% 0.065% $3,918,185 8,116 $482,773 7.60% ** $36,710 $115,800 $14.27 0.003% 0.039% $124,349 176 $706,528 7.60% ** $53,724 $10,162 $57.74 0.008% 0.107% $604,290 868 $696,187 7.60% ** $52,937 $12,509 $14.41 0.002% 0.027% $3,173,380 6,367 $498,411 7.60% ** $37,899 $79,074 $12.42 0.002% 0.033% $2,641,692 5,671 $465,825 7.60% ** $35,421 $91,412 $16.12 0.003% 0.046% $7,652,439 32,864 $232,852 7.60% ** $17,706 $361,383 $11.00 0.005% 0.062% Business Schools and 6114 Computer and Management Training 6115 6116 6117 6211 6212 6213 6214 ER18NO16.298</GPH> Industry Average Receipts, 2007 Ratio of Technical and Trade Schools Other Schools and Instruction $2,292,614 5,525 $414,953 7.60% ** $31,553 $71,774 $12.99 0.003% 0.041% Offices of Physicians $129,926,765 173,483 $748,931 4.56% * $34,122 $1,649,307 $9.51 0.001% 0.028% Offices of Dentists $77,594,755 116,943 $663,526 7.66% * $50,813 $1,121,750 $9.59 0.001% 0.019% $34,382,489 108,837 $315,908 7.78% * $24,593 $935,956 $8.60 0.003% 0.035% $6,227,506 9,406 $662,078 5.34% * $35,366 $119,111 $12.66 0.002% 0.036% Educational Support Services Offices of Other Health Practitioners Outpatient Care Centers Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 23:45 Nov 17, 2016 Table V-33 Cost Impacts on Very Small Business Entities (Fewer than 20 Employees) Affected by OSHA's Final Revision to Subparts D and I {per Entity, by 4-Digit NAICS Code) (continued) srobinson on DSK5SPTVN1PROD with RULES6 VerDate Sep<11>2014 Estimated Receipts, 2007 Jkt 241001 NAICS 6215 PO 00000 6216 6219 Frm 00429 6221 Fmt 4701 6222 Industry Medical and Diagnostic Laboratories Home Health Care Services Other Ambulatory Health Care Services General Medical and Surgical Hospitals Psychiatric and Substance Abuse Hospitals ($1 ,OOO)[a] Average Entities [b] Receipts per Entity Sfmt 4725 E:\FR\FM\18NOR7.SGM 18NOR7 and Substance Abuse) $956,341 5.51% $3,547,660 9,898 $358,422 5.51% $2,165,857 4,056 $533,988 5.51% $346,216 170 $2,036,565 5.24% $75,942 95 $799,389 5.24% $165,024 236 $699,254 5.24% $1,277,862 1,768 $722,773 5.24% $1,334,305 4,311 $309,512 5.24% $2,816,143 10,036 $280,604 5.24% $640,339 2,018 $317,314 5.24% $11 ,026,791 30,530 $361,179 5.24% .. .. .. $4,921,088 6,950 $708,070 5.24% .. $941,893 2,096 $449,376 5.24% $8,780,725 49,092 $178,863 5.24% Hospitals 6231 Nursing Care Facilities Residential Mental 6232 Retardation, Mental Health and Substance Abuse Facilities 6233 6239 6241 Community Care Facilities for the Elderly Other Residential Care Facilities Individual and Family Services Community Food and 6242 Housing, and Emergency and Other Relief Services 6243 6244 ER18NO16.299</GPH> Vocational Rehabilitation Services Child Day Care Services of the Final Cost per Rule Entity $52,732 $69,165 $11.34 0.001% 0.022% $19,763 $107,935 $10.90 0.003% 0.055% $29,444 $47,304 $11.66 0.002% 0.040% $106,700 $2,166 $12.74 0.001% 0.012% $41,882 $1,267 $13.33 0.002% 0.032% $36,635 $3,975 $16.84 0.002% 0.046% $37,868 $14,693 $8.31 0.001% 0.022% $16,216 $34,460 $7.99 0.003% 0.049% $14,701 $81,308 $8.10 0.003% 0.055% $16,625 $17,430 $8.64 0.003% 0.052% $18,923 $281,337 $9.22 0.003% 0.049% $37,097 $61 '117 $8.79 0.001% 0.024% .. .. $23,544 $15,529 $7.41 0.002% 0.031% $9,371 $361,559 $7.36 0.004% 0.079% per Entity Average Cost to Revenues Average Cost to Profits 82921 6,099 Specialty (except Psychiatric 6223 . . . .. .. .. .. .. $5,832,723 Ratio of Average Estimated Profits Profit Rate [c] Ratio of Estimated Cost Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 23:45 Nov 17, 2016 Table V-33 Cost Impacts on Very Small Business Entities (Fewer than 20 Employees) Affected by OSHA's Final Revision to Subparts D and I (per Entity, by 4-Digit NAICS Code) (continued) srobinson on DSK5SPTVN1PROD with RULES6 82922 VerDate Sep<11>2014 Table V-33 (per Entity, by 4-Digit NAICS Code) (continued) Estimated Jkt 241001 Receipts, 2007 NAICS Industry ($1 ,OOO)[a] Average Entities [b] 8,161 Receipts per Entity Estimated Profits Profit Rate [c] per Entity Estimated Cost Average of the Final Cost per Rule Entity $52,732 Ratio of Average Cost to Revenues Ratio of Average Cost to Profits PO 00000 Frm 00430 7111 Performing Arts Companies $4,788,609 $586,767 8.99% * $785,913 $96.30 0.016% 0.183% 7112 Spectator Sports $2,209,037 3,798 $581,632 8.99% * $52,270 $78,768 $20.74 0.004% 0.040% 7113 Arts, Sports, and Similar $4,115,319 5,395 $762,802 8.99% * $68,552 $166,947 $30.94 0.004% 0.045% $2,588,703 3,511 $737,312 8.99% * $66,261 $44,123 $12.57 0.002% 0.019% $11 ,280,670 19,734 $571,636 8.99% * $51,372 $209,715 $10.63 0.002% 0.021% $2,170,237 5,711 $380,010 6.69% ** $25,408 $61,819 $10.82 0.003% 0.043% $882,679 2,108 $418,728 4.94% * $20,701 $30,691 $14.56 0.003% 0.070% $1 '189,840 1,466 $811,623 4.94% * $40,124 $15,208 $10.37 0.001% 0.026% $16,815,436 50,769 $331,215 4.94% * $16,374 $571,007 $11.25 0.003% 0.069% $16,791 ,521 33,973 $494,261 5.14% * $25,408 $402,878 $11.86 0.002% 0.047% $2,708,188 6,233 $434,492 5.14% * $22,335 $72,991 $11.71 0.003% 0.052% $602,779 2,034 $296,352 5.14% * $15,234 $23,605 $11.61 0.004% 0.076% $46,000,251 141,430 $325,251 4.61% * $14,981 $1,237,649 $8.75 0.003% 0.058% $41,062,798 141,803 $289,576 4.61% * $13,338 $1,183,552 $8.35 0.003% 0.063% $4,347,542 12,836 $338,699 4.61% * $15,600 $153,837 $11.98 0.004% 0.077% Promoters of Performing Events Agents and Managers for 7114 Artists, Athletes, Fmt 4701 Entertainers, and Other Public Figures Sfmt 4725 7115 7121 E:\FR\FM\18NOR7.SGM 7131 7132 7139 7211 Independent Artists, Writers, and Performers Museums, Historical Sites, and Similar Institutions Amusement Parks and Arcades Gambling Industries Other Amusement and Recreation Industries Traveler Accommodation 18NOR7 RV (Recreational Vehicle) 7212 Parks and Recreational Camps 7213 7221 7222 7223 ER18NO16.300</GPH> Rooming and Boarding Houses Full-Service Restaurants Limited-Service Eating Places Special Food Services Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 23:45 Nov 17, 2016 Cost Impacts on Very Small Business Entities (Fewer than 20 Employees) Affected by OSHA's Final Revision to Subparts D and I srobinson on DSK5SPTVN1PROD with RULES6 VerDate Sep<11>2014 Estimated Receipts, 2007 NAICS Jkt 241001 7224 8111 Industry Drinking Places (Alcoholic Beverages) Automotive Repair and PO 00000 Maintenance ($1 ,OOO)[a] Average Entities [b] Receipts per Entity Estimated Profits Profit Rate [c] per Entity Estimated Cost Average of the Final Cost per Rule Entity Ratio of Average Cost to Revenues Ratio of Average Cost to Profits Sfmt 4725 42,226 $261,017 4.61% * $12,022 $384,773 $9.11 0.003% 0.076% $61,365,164 146,321 $419,387 3.25% * $13,636 $3,235,699 $22.11 0.005% 0.162% $4,809,092 10,607 $453,389 4.90% * $22,226 $195,806 $18.46 0.004% 0.083% $11,472,207 20,429 $561,565 4.90% . $27,529 $425,170 $20.81 0.004% 0.076% $5,893,106 21,460 $274,609 4.90% * $13,462 $304,497 $14.19 0.005% 0.105% Electronic and Precision 8112 Equipment Repair and Maintenance Frm 00431 Fmt 4701 $11 ,021 ,710 Commercial and Industrial Machinery and Equipment 8113 (except Automotive and Electronic) Repair and Maintenance Personal and Household 8114 Goods Repair and Maintenance E:\FR\FM\18NOR7.SGM 18NOR7 8121 Personal Care Services $15,098,462 92,503 $163,221 5.12% * $8,351 $685,594 $7.41 0.005% 0.089% 8122 Death Care Services $8,487,669 14,826 $572,485 5.12% * $29,289 $146,612 $9.89 0.002% 0.034% $7,395,375 31,666 $233,543 5.12% * $11,948 $315,321 $9.96 0.004% 0.083% Other Personal Services $6,445,815 24,514 $262,944 5.12% * $13,452 $284,152 $11.59 0.004% 0.086% Religious Organizations $49,432,764 162,152 $304,854 2.05% * $6,246 $1,467,465 $9.05 0.003% 0.145% $37,560,115 14,131 $2,657,994 2.05% * $54,459 $145,943 $10.33 0.000% 0.019% $6,178,824 11,696 $528,285 2.05% * $10,824 $116,396 $9.95 0.002% 0.092% $8,291,139 24,642 $336,464 2.05% * $6,894 $271,138 $11.00 0.003% 0.160% 8123 8129 8131 8132 8133 8134 Dry-cleaning and Laundry Services Grantmaking and Giving Services Social Advocacy Organizations Civic and Social Organizations Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 23:45 Nov 17, 2016 Table V-33 Cost Impacts on Very Small Business Entities (Fewer than 20 Employees) Affected by OSHA's Final Revision to Subparts D and I (per Entity, by 4-Digit NAICS Code) (continued) 82923 ER18NO16.301</GPH> srobinson on DSK5SPTVN1PROD with RULES6 82924 Estimated NAICS Industry Average Receipts, 2007 Receipts per ($1 ,OOO)[a] Entities [b] Entity Estimated Profits Profit Rate [c] per Entity Estimated Cost Average of the Final Cost per Rule Entity Ratio of Average Cost to Revenues Ratio of Average Cost to Profits Jkt 241001 Business, Professional, $29,068,582 8139 Labor, Political, and Similar 56,541 $514,115 2.05% * $10,534 $773,516 $13.68 0.003% 0.130% Organizations [a] Estimated based on 2007 receipts and payroll data from U.S. Census Bureau, Statistics of U.S. Businesses, 2007, and payroll data from U.S. Census Bureau, Statistics of U.S. Businesses, 2007. Frm 00432 Fmt 4701 Sfmt 4700 18NOR7 industry, NAICS 2213—Water, sewage and other systems, will experience E:\FR\FM\18NOR7.SGM OSHA’s impact analysis for small entities indicates that one other PO 00000 ER18NO16.302</GPH> [b) U.S. Census Bureau, Statistics of U.S. Businesses, 2007. [c) Estimated from average of the yearly ratios of net income to total receipts as reported by the U.S. Internal Revenue Service, Corporation Source Book, 20002008. Data were not available at disaggregated levels for all industries; profit rates at more highly aggregated levels are used for such industries. N/A: Data not available. *Profit rate imputed from corresponding 3-digit NAICS industry. ** Profit rate imputed from corresponding 2-digit NAICS industry. Source: U.S. Department of Labor, OSHA, Directorate of Standards and Guidance, Office of Regulatory Analysis-Safety. Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 23:45 Nov 17, 2016 BILLING CODE 4510–29–C VerDate Sep<11>2014 Table V-33 Cost Impacts on Very Small Business Entities (Fewer than 20 Employees) Affected by OSHA's Final Revision to Subparts D and I (per Entity, by 4-Digit NAICS Code) (continued) Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations srobinson on DSK5SPTVN1PROD with RULES6 significant profit impacts under a worstcase scenario: Costs are 5.3 percent of profits for entities defined as small by the SBA, and costs are 11.7 percent of profits for entities with fewer than twenty employees. While profit impacts at these levels suggest that utilities in NAICS 2213 may have to reduce operations substantially if they are unable to pass forward to customers the approximately $3,441 in annualized compliance costs, OSHA expects that most water and sewage employers will not experience profit impacts of that severity. First, whereas the estimate of revenue per small entity (fewer than 100 employees) in 2007 is approximately $823,000 (Tables V–2 and V–32), according to 2012 Census data, revenue per small entity in NAICS 2213 rose to $956,000. Assuming those higher perentity revenues continued up until the scheduled compliance with this final standard, the impacts of costs on revenue and profit would be less severe than suggested using the 2007 receipts data. Moreover, there is reason to think that OSHA’s data understates actual profits for small utilities. Many small utilities are organized as cooperatives and a modest percentage of utilities file income tax returns as S Corporations, and the tax law allows both types of entities to pass profits back to members without being taxed as income at the business level. According to IRS data,161 of the 3,216 tax returns filed by utilities (NAICS 22) as S corporations in 2012, only 2,693 S-corporation utilities reported net income, suggesting that of the 5,973 firms in NAICS 22 in 2012, just under 9 percent ((3,216 S returns filed—2,693 S returns with net income)/ 5,973 total returns in NAICS 22) may have had profit that was not reported as income on the corporate return. However, they would have been included in the balance sheet data that formed the basis for the calculation of the average profit rate, 5.4 percent, for NAICS 2213. As evidence supporting this conclusion, IRS data indicate that for S utility corporations that reported net income, 2012 profit rates averaged 9.7 percent.162 Therefore, if the overall nine-year (2000–2008) average profit rate for NAICS 2213 underestimates the actual profit rate for the industry, 161 See https://www.irs.gov/uac/soi-tax-stats-scorporation-statistics, Table 1: Returns of Active Corporations, Form 1120S and Table 2: Returns with Net Income, Form 1120S. 162 See https://www.irs.gov/uac/soi-tax-stats-scorporation-statistics, Table 2: Returns with Net Income, Form 1120S. For Utilities in 2012, Total net income (less deficit) = $689,965 thousand, or $690.0 million, and Total Receipts = $7,112,150 thousand, or $7.1 billion. Profit rate = $690 million/$7.1 billion = 9.7 percent. VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 impacts resulting from compliance with this final standard may be overstated in Tables V–32 and V–33. 3. A Statement of the Need for, and Objectives of, the Rule Employees in general industry performing construction, installation, maintenance, and repair tasks are exposed to a range of significant slip, trip, and fall hazards that cause serious injury and death. OSHA estimates that approximately 202,100 serious injuries and 345 fatalities occur annually among these employees. Although employers could prevent some of these incidents with increased compliance with existing safety standards, research and analyses conducted by OSHA found that many preventable injuries and fatalities would continue to occur even if employers achieved full compliance with the existing standards. Without counting incidents that employers could potentially prevent by complying fully with existing standards, OSHA estimates that full compliance with these final standards would prevent 5,842 additional injuries and 29 fatalities annually, even with full compliance with the existing standard. As explained above, additional benefits associated with this rulemaking involve providing updated, clear, and consistent safety standards regarding fall protection in general industry to the relevant employers, employees, and interested members of the public. The existing OSHA standards for walkingworking surfaces in general industry are over 30 years old and inconsistent with the more recently promulgated standards addressing fall protection in construction. OSHA believes that the final updated standards are easier to understand and to apply than the existing standard, thereby benefiting employers and employees by facilitating compliance and improving safety. 4. Response to Comments Filed by the Small Business Administration The Small Business Administration’s Chief Counsel for Advocacy (SBA Advocacy) submitted comments into the rulemaking record following publication of the NPRM. SBA Advocacy’s comments (Ex. 124) covered four broad areas; OSHA addresses each area below. Area 1: ‘‘OSHA should not include vague, overly-broad, ‘general duty clause’ type requirements.’’ OSHA’s response: SBA Advocacy expressed concern that some provisions, such as proposed § 1910.22(a)(3) which required employers to ‘‘ensure that all surfaces are designed, constructed and maintained free of recognized hazards,’’ lacked detail and precise definition, and PO 00000 Frm 00433 Fmt 4701 Sfmt 4700 82925 would, therefore, place an unreasonable compliance burden on employers. In the final standards, OSHA revised the proposed language of paragraph (a)(3) to provide specific examples of the types of hazards addressed by this provision— e.g., protruding or sharp objects, spills. The final regulatory text no longer requires that employers identify and correct all ‘‘recognized’’ hazards. Area 2: ‘‘OSHA should further synchronize the proposed general industry rule with the existing construction standard.’’ OSHA’s response: OSHA believes that, to the extent possible given the technological and work-organization differences between general industry and construction, the final standards mesh closely with the construction fall protection standards. Whenever possible, to avoid duplication, inconsistency, or overlap, the final standards reference the OSHA construction standards (for example, § 1910.27(a), Scaffolds; § 1910.28(b)(12), Scaffolds and rope descent systems; and § 1910.29(b), Guardrail systems reference part 1926). Area 3: ‘‘OSHA should not expand its reading of Section 1910.22 to regulate combustible dust.’’ OSHA’s response: As noted in this preamble and in the preamble to the NPRM, OSHA interprets the housekeeping provisions in subpart D as applying to combustible-dust accumulations associated with fire and explosion hazards. Regarding this interpretation, one court stated that ‘‘the housekeeping standard is not limited to tripping and falling hazards, but may be applied to [a] 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), which reached the same conclusion). Following publication of the NPRM, OSHA received no evidence that the regulated community had technological or economic concerns about including combustible dust in the scope of the housekeeping section of final subpart D. Therefore, OSHA will continue to regulate combustible-dust hazards on walking-working surfaces in this final standard. Area 4: ‘‘OSHA should not regulate commercial motor vehicles (trucks) under the proposed rule.’’ OSHA’s response: Based on comments and testimony received on both the 2003 Reopening Notice and the 2010 Proposed Rule, OSHA finds it is sometimes feasible to provide fall protection for rolling stock where it is not contiguous or next to a structure. E:\FR\FM\18NOR7.SGM 18NOR7 82926 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations However, OSHA still believes that additional information and data analysis is needed in order to determine an appropriate course of action. Therefore, this Final Rule does not include any specific requirements for fall protection on rolling stock and motor vehicles and OSHA’s current existing enforcement policies on rolling stock and motor vehicles will remain in effect. This issue is discussed further in the Summary and Explanation for final rule § 1910.21(a). 5. Issues Raised Regarding the Small Business Regulatory Enforcement Fairness Act The U.S. Chamber of Commerce (‘‘the Chamber’’) addressed the absence of a review process under the Small Business Regulatory Enforcement Fairness Act (5 U.S.C. 601 et seq.) (SBREFA) during this rulemaking, stating: srobinson on DSK5SPTVN1PROD with RULES6 OSHA’s decision to forgo SBREFA panel review for this rulemaking is even more troubling when one considers that the agency has undertaken SBREFA reviews with a number of rulemakings that have impacted a smaller number of workplaces and employees than this proposed walkingworking surfaces revision will impact. . . . [T]his rulemaking will have a direct effect on a wide array of employers, both large and small, across all types of operations. This rulemaking is broader in application than many of the rulemakings noted above, with new requirements for training, and associated levels of personal protection. There are a large number of variables that will determine how these requirements will actually impact employers, especially small employers, and the agency would have benefited from the opportunity to obtain data and information from small employers. This is particularly true with respect to OSHA’s effort to synchronize the general industry and construction industry provisions where small businesses are most likely to be confused and would have been able to provide useful input on achieving this goal. The scope of this regulation is so broad, and it will impose fall protection on so many workplaces for the first time, that OSHA should have conducted a panel to gather from affected entities direct information on how to better tailor this regulation. The Chamber urges OSHA to conduct a SBREFA panel review before proceeding to a final regulation. (Ex. 202, p. 2.) In response to the concerns of the Chamber and the other stakeholders that expressed similar views (i.e., the Sheet Metal and Air Conditioning Contractors National Association (Ex. 165) and the National Federation of Independent Business (Ex. 173), OSHA notes that throughout the rulemaking process, during the public hearings and on other VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 occasions (including during the 2003 reopening of the record for a request for information), OSHA solicited and received comment from small firms on a variety of issues. Topics that involved input from small firms included, for example, safety on fixed ladders in outdoor advertising (Exs. 136; 229), the design of guardrails and gates at ladderway openings (Exs. 68; 366), use of rope descent systems for window cleaning (Exs. 69; 76), and protection of utility workers when ascending and descending stepbolts (Ex. 155). In developing and finalizing its final standards for subparts D and I, OSHA thoroughly considered the concerns expressed by small firms and other stakeholders representing the views of small firms, and revised requirements as appropriate. 6. Information Regarding the Small Entities Covered by the Final Rule OSHA’s analysis of the impacts of this final rule includes an analysis of the type and number of small entities impacted by the final rule. The final rule primarily impacts workers performing installation, maintenance, and repair tasks throughout general industry. To determine the number of small entities potentially affected by this rulemaking, OSHA used the definitions of small entities developed by the Small Business Administration for each industry. In section C of this FEA, OSHA discussed its methodology for determining the number of affected small entities, and presented its estimates of the number in Table V–2. As shown in that table, OSHA estimates that the final standards would cover 5.1 million small entities, employing 43.8 million workers, including 2.3 million workers directly exposed to slip, trip, and fall hazards. Industries (four-digit NAICSs) expected to have the highest number of affected at-risk employees include automotive repair and maintenance (390,000 employees), wired telecommunications carriers (170,000 employees), and lessors of real estate (84,000). 7. Administrative Costs for Employers OSHA issued the existing standards in subpart D in 1971 under Section 6(a) of the Occupational Safety and Health Act of 1970 (the Act) (29 U.S.C. 655). During the period since OSHA issued existing subpart D, interested parties recommended revisions to its standards. In addition, the majority of the existing OSHA standards for walking-working PO 00000 Frm 00434 Fmt 4701 Sfmt 4700 surfaces are inconsistent with numerous national consensus standards and the more recently issued OSHA standards addressing fall protection elsewhere in general industry (e.g., § 1910.66, Powered platforms for building maintenance) and construction (e.g., § 1926 Subpart M—Fall Protection). Section F, Costs of Compliance, above described, for categories of employee training, the administrative costs for employers. Accordingly, OSHA does not consider the costs to document the training and retraining of employees to be recordkeeping, but rather typical expenses involved in administering a safety program. 8. Minimizing the Economic Impact on Small Entities OSHA evaluated several alternatives to the final standards to ensure that the requirements would accomplish the stated objectives of applicable statutes and minimize the economic impact on small entities. For example, OSHA considered an alternative that would exempt small entities from the rule; however, the Agency rejected this alternative because it would unduly jeopardize the safety and health of affected employees. Throughout Section IV of this document, Summary and Explanation of the Final Rule, OSHA discusses other alternatives considered, generally in response to public comment. In developing the final rule, especially establishing compliance or reporting requirements or timetables that affect small entities, OSHA took the resources available to small entities into account. OSHA clarified, consolidated, and simplified the compliance and reporting requirements applicable to small entities to the extent practicable. Wherever possible, OSHA allowed the employer multiple options to control fall hazards. Therefore, OSHA made every effort to provide maximum flexibility in the choice of controls required by the final rule. To demonstrate the relative economic efficiency (i.e., cost effectiveness) of the final subpart D standards, OSHA selected eight provisions from these standards for which it considered alternative controls, but rejected these controls as inefficient from a costeffectiveness perspective. The table below presents OSHA’s evaluation of the potential impacts associated with these alternative controls for the eight provisions. BILLING CODE 4510–29–P E:\FR\FM\18NOR7.SGM 18NOR7 srobinson on DSK5SPTVN1PROD with RULES6 VerDate Sep<11>2014 ~- -- - -~ tsA: - -- - ~~ · ted with- R·- - ---Iat, - -Alt - - -- - ·------ - - - - ·-- - ·-~ ~ Control(s) Specified by Provision Section 1910.23, firefighting, rescue, and tactical law-enforcement Ladders f - -- -- - - ~ for Selected P- - - - - ·- - - -~ ~ · Final Suboart D -------- ----- --- ---- - Covers all ladders except for machine-integrated or paragraph (a) Jkt 241001 Provision - - ·~ ~ ladders. Alternative Control(s) Potential Impacts of Alternative Control(s) Probably not significant in costs, but not justified All ladders in scope. with respect to benefits. Requirement to ensure that§.!! step bolts and PO 00000 manhole steps meet the strength and design Section 1910.24, Frm 00435 paragraphs (a)(1 ), (a)(?), and (b)(2) Step bolts and Fmt 4701 manhole steps Design changes to step bolts and manhole steps criteria in revised subpart D would require on new installations performed on or after 60 days Eliminate grandfathering of older technical resources that could exceed the capacity after the standard's effective date must meet structures. of affected industries in the near term given the specified strength and design criteria. need to inspect all existing manholes and make changes to many of them; benefits would not justify the large costs. Sfmt 4725 Section 1910.25, When employees use ship stairs and spiral stairs paragraph (b)(S) as the primary means of egress, the stairs must E:\FR\FM\18NOR7.SGM Stairways meet the requirements specified by the standard. Prohibit ship stairs and spiral stairs in Potentially large costs with few benefits. all new installations. This provision requires that dockboards put into service at least 60 days after the effective date of the final rule be designed, constructed, and 18NOR7 Section 191 0.26(b) Dockboards maintained to prevent transfer vehicles (such as Specify the means of achieving the hand trucks) from running off the edge. An desired performance (specific exception allows the employer to use dockboards dockboard design requirements). Probably modest costs but with few benefits. that do not have run-off protection when the employer can demonstrate that there is no hazard of the equipment running off the edge. ! Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 23:45 Nov 17, 2016 Table V-34 ' 82927 ER18NO16.303</GPH> srobinson on DSK5SPTVN1PROD with RULES6 Provision Control(s) Specified by Provision Potential Impacts of Alternative Control(s) impacts of the primary choice will be manageable due to the current availability of (1) powered Paragraph (b)(2)(i) prohibits the use of a rope platforms, swing-stage equipment, or other Jkt 241001 descent system (RDS) at heights greater than 300 Section 191 0.27(b )(2)(i) PO 00000 Use of rope descent systems systems for washing windows on tall buildings, feet (91.4 m) above grade unless the employer demonstrates that it is not feasible to access such and (2) the managerial and technical expertise for Allow use of RDS at all heights. heights by any other means or that those means combining RDS and other types of equipment. The impact of the alternative control would be pose a greater hazard than using a rope descent Frm 00436 heightened risk of exposure to unexpected wind system. gusts and other factors that could jeopardize safe control of the RDS for descents greater than 300 Fmt 4701 feet. The final rule allows employers to choose from Sfmt 4725 several options in providing fall protection across generic walking-working surfaces. These include E:\FR\FM\18NOR7.SGM Section 1910.28 conventional fall protection systems such as Duty to have fall guardrail systems, safety-net systems, and protection and Provided detailed specifications, on a personal fall protection systems (restraint systems, surface by surface basis, the means of falling-object personal fall arrest systems, and positioning protection systems) and, in some instances, non-conventional 18NOR7 means. An example of non-conventional means would be establishing a designated area in which achieving compliance. Depending on specifications, costs could be substantial with modest benefits. Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 23:45 Nov 17, 2016 As OSHA demonstrated earlier in this FEA, an employee is to work. ER18NO16.304</GPH> Alternative Control(s) 82928 VerDate Sep<11>2014 Table V-34 Impacts Associated with Regulatory Alternatives for Selected Provisions in Final Subpart D (continued) srobinson on DSK5SPTVN1PROD with RULES6 Provision Section 1910.28(b)(8) Repair pits, service pits, and assembly Jkt 241001 pits less than 10 feet in depth Control(s) Specified by Provision Alternative Control(s) Potential Impacts of Alternative Control(s) This provision requires employers to limit access to the edge (within 6 feet (1.8 m)) of the pit to trained, authorized employees ((b)(8)(i)); mark the floor or place warning lines and stanchions to designate the unprotected area ((b)(8)(ii)); and post caution Require conventional fall protection systems such as guardrails, or Potentially significant costs with personal fall arrest or travel restraint feasibility/practicability concerns. systems. signs to warn employees of the unprotected area ((b)(8)(iii)). PO 00000 This provision requires no fall protection for employees exposed to falls from fixed ladders of Frm 00437 Fmt 4701 Section 24 feet (7.3 m) in length or less above a lower 1910.28(b)(9) level. If the employer uses an existing cage or For fixed ladders, require employers to Fixed ladders (that well, each section must be offset from adjacent provide cages, wells, landing extend more than sections with landing platfonms at maximum platfonms, and ladder safety systems 24 feet (7.3 m) intervals of 50 feet (15.2 m). If an employer uses a comprehensively. Major costs and modest benefits; tens of thousands of fixed ladders would need cages, wells, and landing platfonms. Sfmt 4700 above a lower level ladder safety system or personal fall arrest system, there must be rest platfonms at maximum intervals E:\FR\FM\18NOR7.SGM of 150 feet (45.7 m). Source: U.S. Department of Labor, OSHA, Directorate of Standards and Guidance, Office of Regulatory Analysis-Safety. 18NOR7 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 23:45 Nov 17, 2016 BILLING CODE 4510–29–C VerDate Sep<11>2014 Table V-34 Impacts Associated with Regulatory Alternatives for Selected Provisions in Final Subpart D (continued) 82929 ER18NO16.305</GPH> 82930 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations OSHA also considered non-regulatory alternatives in determining the appropriate approach to reducing occupational hazards associated with work on elevated or slippery surfaces in general industry. The Agency discusses these alternatives in Section B of this FEA. I. Sensitivity Analyses 1. Introduction In this subsection, OSHA presents the results of two different types of sensitivity analysis to demonstrate how robust the estimates of net benefits are to changes in selected cost and benefit parameters. In the first sensitivity analysis (the ‘‘standard sensitivity analysis’’), OSHA makes a series of isolated changes to individual cost and benefit parameters to determine their effects on the Agency’s estimates of annualized costs, benefits, and net benefits. In the second sensitivity analysis—the ‘‘break-even sensitivity analysis’’—OSHA investigates isolated changes to individual cost and benefit parameters, but with the objective of determining the magnitude of the changes needed for annualized costs to equal annualized benefits. The Agency is conducting these analyses for informational purposes only. srobinson on DSK5SPTVN1PROD with RULES6 2. Sensitivity Analysis for Specific Parameters OSHA provides below a sensitivity analysis of some assumptions underlying the Agency’s estimates of the annualized costs and benefits of the final rule. The calculations underlying the Agency’s estimate that the compliance costs, benefits, and economic impacts associated with this rulemaking are generally linear and additive. Accordingly, the changes in the costs or benefits should generally be proportional to variations in the relevant input parameters. For example, if the estimated time for supervisors to inspect the conditions of walkingworking surfaces (to ensure that they are free of hazards) increased by 100 percent, the corresponding labor costs for that task also should increase by 100 percent. OSHA evaluated a series of such changes in input parameters to test the validity of the general conclusions derived from the economic analysis. Overall, OSHA found these conclusions to be robust as even sizeable changes in the values of several input parameters did not substantially alter the estimates of the costs, benefits, or net benefits. Furthermore, the rule produces significant positive net benefits regardless of the revisions made to VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 costs, benefits, or the discount rate. Table V–35 below provides the summary results of these sensitivity tests. In each sensitivity test, parameters other than the ones tested remained unchanged. In the first sensitivity test, OSHA adjusted the estimated noncompliance rates applied to the costs for the requirements for inspections and hazard corrections in final § 1910.22(d). When OSHA doubles the noncompliance rates (deriving noncompliance rates that range from 6 percent to 27 percent), annualized costs rise by $33.2 million (10.9 percent), with total compliance costs summing to $338.2 million, and net benefits are reduced by an equal amount ($33.32 million), to a level of $276.4 million. In the benefits sensitivity analysis, OSHA also considered the effect of changing these provisions on benefits. In the second sensitivity test on costs, when OSHA increased by 100 percent the estimated time for supervisors to inspect walking-working surfaces for the presence of hazards (from one hour to two hours), the estimated total costs of compliance increased by $33 million annually, or about 11 percent of overall costs. In the third sensitivity test on costs, OSHA increased a set of values for variables critical to the estimated compliance costs for fall protection on fixed ladders as follows: • Increased the estimate of the number of fixed ladders per establishment by 100 percent (0.45 to 0.9); and • Increased the installation time for ladder safety systems by 100 percent (two hours to four hours). This sensitivity test increased the estimated annualized compliance costs by $0.4 million annually, about 0.1 percent of overall costs. In the fourth sensitivity test on costs, OSHA extended from 20 years to 25 years after publication of the rule the date when OSHA would no longer accept cages and wells for fall protection, thereby requiring employers to install other forms of fall protection such as ladder safety systems on fixed ladders that extend more than 24 feet above a lower level. This sensitivity test decreased the estimated annualized compliance costs by $1.0 million annually, or about 0.3 percent of overall costs. In the fifth sensitivity test on costs, OSHA retrofitted all fixed ladders over 20 feet in length with ladder safety systems (not just those ladders that extend more than 24 feet above a lower level) according to a 20-year deadline specified by final § 1910.28(b)(9)(i)(D), with the result that costs increased by PO 00000 Frm 00438 Fmt 4701 Sfmt 4700 $10.1 million annually, or 3.3 percent of overall costs. OSHA believes this stringent test represents a highly unlikely scenario because the current consensus standard for fixed ladders—ANSI A14.3–2008, American National Standard for Ladders—Fixed—Safety Requirements—requires use of a ladder safety system only for single climbs in excess of 24 feet, whereas the 2002 version of that standard prescribed the use of ladder safety systems for climbs in excess of 50 feet. Furthermore, current § 1910.27(d)(5) permits the use of ladder safety devices instead of cages on tower, water-tank, and chimney ladders over 20 feet in unbroken length. In addition, evidence in the record suggests that firms with a choice of a cage/platform or ladder safety systems generally install ladder safety systems for ladders reaching heights above 30 feet, and that safety engineers are now designing solutions using ladder safety systems for fall protection during all long ladder climbs (Exs. 127; 369). Therefore, OSHA believes that only a small percentage of fixed ladders, i.e., ladders between 24 and 30 feet in height, would require retrofitting with ladder safety systems 20 years after publication of the final rule. In a sixth sensitivity test on costs, OSHA increased by 100 percent the estimated time for employee training, which increased the estimated costs of compliance by $54.1 million annually, or about 18 percent of overall costs. Finally, in a seventh sensitivity test on costs, OSHA increased by 100 percent the estimated time for a supervisor to conduct a hazard assessment needed before issuing personal fall protection equipment. This sensitivity test increased the estimated costs of compliance by $11.6 million annually, or roughly 4 percent of overall costs. In addition, OSHA examined the effect on annualized costs and benefits of changing the discount rate. Changing the discount rate from seven percent, used in the base case, to three percent would reduce the estimated costs of the final rule from $305.0 million to $297.0 million per year (while leaving estimated annual benefits unaffected), thereby increasing the estimated net benefits by $7.9 million. For both this scenario and for the primary (sevenpercent rate) scenario, with the exception of the 20-year deadline for installation of specific types of fall protection on certain fixed ladders, OSHA assumed that employers would incur all costs (first-year and recurring) upon implementation of the final standards (i.e., no phase-in provisions). E:\FR\FM\18NOR7.SGM 18NOR7 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations srobinson on DSK5SPTVN1PROD with RULES6 OSHA also assumed that the benefits outlined in this section will begin accruing once the rule takes effect. OSHA recognizes that there is not one uniform approach to estimating the marginal cost of labor. For the economic analysis in support of the final rule, OSHA has estimated the marginal costs of labor as wages plus a fringe benefit rate of 41.5% (which includes some fixed costs such as health insurance). However, this approach does not account for overhead costs. For illustrative purposes in the context of this sensitivity analysis, OSHA has modified the cost estimates by including an overhead rate when estimating the marginal cost of labor. It is important to note that there is not one broadly accepted overhead rate in academic literature and estimating the most appropriate overhead rate for this FEA would require significant modeling, including as regards the interaction between overhead costs and the equipment and other costs that have been separately estimated. Further, the Department has not further analyzed an appropriate quantitative adjustment. VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 Therefore, DOL adopted for the purposes of this specific exercise an overhead rate of 17%. This rate has been used by the EPA in its final rules (see for example, EPA Electronic Reporting under the Toxic Substances Control Act Final Rule, June 17, 2013), and is based upon a Chemical Manufacturers Association study.163 Using an overhead rate of 17% would increase costs by $24.4 million per year, or 8.0 percent above the best estimate of costs. (See Table V–35) OSHA also performed sensitivity tests on a set of input parameters used to estimate the benefits of the final rule. In the first test, OSHA estimated that the 163 The uncertainty surrounding the appropriate amount of overhead cost to include in loaded wages may be observed in the range of estimates that other Agencies have included for overhead rates specific to their requirement. For example, recent regulatory impact analyses conducted by agencies of the Department of Health and Human Services (HHS) have featured doubling of base wages to account for both fringe benefits and overhead. DOL’s Employee Benefits Security Administration (EBSA) includes overhead costs that are substantially higher than EPA’s and more variable across employee types than HHS’s, as presented in detail at www.dol.gov/ ebsa/pdf/labor-cost-inputs-used-in-ebsa-opr-riaand-pra-burden-calculations-march–2016.pdf. PO 00000 Frm 00439 Fmt 4701 Sfmt 4700 82931 final preventability rates for falls from ladders (20 percent), falls from roofs (20 percent), and falls to lower levels not elsewhere classified (5 percent) did not increase from the estimates applied in the PEA, but instead remained the same for this FEA (i.e., 15 percent, 15 percent, and 2.5 percent, respectively). As a result of using the (lower) preliminary preventability rates, the estimated monetized benefits fell by $89.6 million annually relative to final monetized benefits, or about 15 percent of overall benefits. In a second benefits sensitivity test, OSHA reduced the preventability rate for falls on the same level from 1 percent to 0 percent. As a result, monetized benefits fell 13.8 percent ($85.0 million) to $530.0 million, and net benefits fell to $225.0 million. In a third benefits sensitivity test, OSHA doubled the preventability rate for falls on the same level from 1 percent to 2 percent. As a result, monetized benefits rose 13.8 percent ($85.0 million) to $699.6 million, and net benefits rose to $394.6 million. BILLING CODE 4510–29–P E:\FR\FM\18NOR7.SGM 18NOR7 srobinson on DSK5SPTVN1PROD with RULES6 Cost Parameters Jkt 241001 PO 00000 Floor Guarding NonCompliance Rate (applied Non-compliance rate doubles in inspection costs) Frm 00440 Fmt 4701 Supervisor time to inspect Average of 30 minutes per establishment walking-working surfaces per quarter (2 hours per year) for hazards Sfmt 4725 E:\FR\FM\18NOR7.SGM Number of fixed Ladders per establishment; time to install ladder safety system; percent of fixed ladders added or replaced each year New Parameter Value Change in Annualized Costs (million) Percentage Change in Annualized Annualized Costs (million) Costs Net Benefit (million) $305.0 $310.0 6% to 27% $33.2 10.9% $338.2 $276.4 4 hours $32.8 10.8% $337.8 $287.2 $0.4 0.1% $305.3 $319.6 -$1.0 -0.3% $304.0 $320.9 $10.1 3.3% $315.1 $309.9 Number of fixed ladders per establishment: 0.45 0.9 ladders Time to install ladder safety system: 2 hours 4 hours Grace period for retrofitting fixed ladders with safety devices: 20 years 25 years Retrofitting all ladders longer than 20 feet instead of ladders between 24 and 30 feet 3,059,106 ladders 18NOR7 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 23:45 Nov 17, 2016 OSHA's Current Estimate Variable OSHA's Best Estimate of Total Annualized Costs: ER18NO16.306</GPH> 82932 VerDate Sep<11>2014 Table V-35 Sensitivity Tests for the Economic Analysis of the Final Standards on Walking-Working Surfaces srobinson on DSK5SPTVN1PROD with RULES6 VerDate Sep<11>2014 Table V-35 (continued) Sensitivity Tests for the Economic Analysis of the Final Standards on Walking-Working Surfaces Cost Parameters OSHA's Current Estimate Change in Annualized Costs {million) Percentage Change in Annualized Costs Jkt 241001 PO 00000 Employee training Frm 00441 Employee time for initial and annual training: 6 hours and 1 hour (4 hours for some NAICS industries) for, respectively, training on fall hazards and equipment hazards Net Benefit (million) $305.0 OSHA's Best Estimate of Total Annualized Costs: Annualized Costs (million) $310.0 12 hours 2 hours 17.7% $359.1 $265.9 $11.6 3.8% $316.6 $308.4 8 hours Supervisor administrative time per employee: 0.25 hours Fmt 4701 Sfmt 4725 $54.1 0.5 hours Establishments with: E:\FR\FM\18NOR7.SGM Supervisor time to conduct hazard assessment needed to issue personal fall protection equipment 18NOR7 1-19 employees- 1 hour 20-99 employees - 2 hours 100-499 employees - 3 hours 500+ employees - 4 hours 2 hours 4 hours 6 hours 8 hours Discount rate 7 percent 3% -$8.0 -2.6% $297.0 $327.9 17% Overhead Rate Base wage rate calculated with 17% Included overhead included 17% $24.4 8.0% $329.4 $295.6 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 23:45 Nov 17, 2016 Variable New Parameter Value 82933 ER18NO16.307</GPH> srobinson on DSK5SPTVN1PROD with RULES6 82934 Benefit Parameters Variable New Parameter Value OSHA's Best Estimate Change in Annualized Benefits (million) Percentage Change in Annualized Benefits Jkt 241001 OSHA's Best Estimate of Total Annualized Benefits: PO 00000 Frm 00442 Preventability rates for falls from ladders, roofs, or lower levels not elsewhere classified Ladders - 20% Roofs -20% Preventability Rate for Percentage falls prevented reduced to 0% Falls on Same Level Percentage falls prevented doubles to 2% Lower Levels, N.E.C. $615.0 15% 15% 5% Annualized Benefits Net Benefit (million) (million) $310.0 -$89.6 -14.6% $525.0 $220.0 0% -$85.0 -13.8% $529.6 $224.6 2% $85.0 13.8% $699.6 $394.6 2.5% Source: U.S. Department of Labor, OSHA, Directorate of Standards and Guidance, Office of Regulatory Analysis-Safety. Fmt 4701 Sfmt 4700 E:\FR\FM\18NOR7.SGM 18NOR7 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 23:45 Nov 17, 2016 BILLING CODE 4510–29–C VerDate Sep<11>2014 ER18NO16.308</GPH> Table V-35 (continued) Sensitivity Tests for the Economic Analysis of the Final Standards on Walking-Working Surfaces Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations srobinson on DSK5SPTVN1PROD with RULES6 OSHA’s benefits estimates are most sensitive when it comes to estimating the percentage of current injuries and fatalities avoided by full compliance with the final standards. OSHA closely examined available reports of fatalities related to the provisions in the existing and final standards and found that full compliance with the final standards would prevent 29 fatalities, or approximately 9 percent of all slip-, trip-, and fall-related fatalities in general industry (including, among the global group, accidents not directly addressed by the final standards). The true benefits of the final rule depend on how well these fatalities represent actual fallrelated fatalities in general industry that compliance with the final rule would prevent. OSHA believes that the benefits in this FEA (see Table V–11) are representative of actual prevented fatalities; however, an average estimate such as presented here can mask yearto-year variations. The Agency believes that its estimate of annual fatalities involving slips, trips, and falls (about 345) in general industry is a much less sensitive estimate of actual fatalities than the estimate of the percentage of fatalities avoided. The estimate of the annual number of baseline fatalities is derived from 7 years of recent accident data with percent-distributed averages corroborated by 11 prior years of data, whereas the estimate of percentage of fatalities avoided is based on professional judgment (the determinations from which were placed into the record and reviewed by rulemaking stakeholders). Furthermore, as noted earlier, OSHA believes that its benefits estimates are low. Specifically, the Agency believes the training and work-practices requirements specified by the final standards would likely improve the use and application of safety equipment (including personal fall protection equipment), thereby further reducing fatalities and injuries. In conclusion, these sensitivity tests demonstrate that even with relatively large variations in the input parameters, there are no large changes in the estimates of compliance costs or benefits. 3. Sensitivity Analysis With Respect to Noncompliance and Possible Overestimation of Benefits In the benefits section, OSHA noted that an article by Seong and Mendeloff suggested that OSHA had, in a period of 17 to 27 years ago, estimated reductions in fatalities that were not in fact reflected in the observed data over the next ten years. All of the analyses in question assumed full compliance with VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 the rule, as does this analysis. The resulting failures to meet observed declines could have been the result of either failure to comply with OSHA’s rule, or overestimates of the effectiveness of OSHA’s rule. OSHA believes that it was a combination of the two—there were both overestimates of effectiveness and failures to comply with the rule. Unfortunately, there are no studies that enable us to distinguish between the two phenomena. Further, OSHA believes that its estimates for this rule reflect lessons learned from the Seong and Mendeloff article. Still OSHA believes it is important to analyze the possibilities that the article might reflect OSHA’s current practice and that it might reflect the possibility that OSHA’s overestimates are solely due to noncompliance with the rule. In Appendix A, OSHA derives a set of factors for reducing OSHA’s benefits estimates based on the assumption that Seong and Mendeloff’s observations correctly state the standard’s effectiveness rates. These factors represent a possible correction to OSHA’s base estimates. The exact possible correction factors and their limitations are given in Appendix A to this FEA. Using these correction factors, OSHA found that the standard would prevent from 9 fatalities and 1,753 non-fatal injuries (=0.3*29 and 0.3*5,842), with a value of $184 million, to 14 fatalities and 2,746 non-fatal injuries (=0.47*29 and 0.47*5,842), with a value of $289 million. If application of these correction factors to OSHA’s estimation methodology better represent the true benefits of the rule, then this lower range of benefits would be more compliant with OMB Circular A–4, than the 29 fatalities and 5,842 non-fatal injures presented at the summary results elsewhere in this FEA. If lack of employer compliance is the only driver of the disparities between OSHA’s estimates and actual declines in fatalities and if non-compliance is close to homogeneous across employers covered by this rule (in other words, if baseline slip, trip and fall injuries are not largely concentrated amongst bad actors who do not attempt to comply with OSHA standards), then the appropriate cost estimates to compare to the above benefits estimate would be $91 million (=0.3*$305 million) to $143 million (=0.47*$305 million), and net benefits remain positive. To the extent that OSHA has not corrected any overestimation of effectiveness that is not the result of noncompliance, then costs could exceed benefits. As noted, OSHA is aware of the possible overestimation for reasons PO 00000 Frm 00443 Fmt 4701 Sfmt 4700 82935 other than less than full compliance and has tried to correct this overestimation. 4. Break-Even Sensitivity Analysis This break-even sensitivity analysis determines how much cost and benefits would have to vary for the costs to equal benefits. According to the Agency’s models for estimating costs and monetized benefits, the final standards generate considerable positive net benefits; that is, expected benefits are much greater than expected costs. Only significant errors in OSHA’s analysis would bring true net benefits to, or below, zero. Therefore, in the first break-even sensitivity test in this analysis, which addresses cost, for net monetized benefits to fall to zero, for example, the Agency would have to underestimate the number of buildings with anchorages subject to inspection and certification by two-fold (from about 750,000 buildings to 1.5 million buildings), and would also have to underestimate the number of employees requiring training by four-fold (from 504,000 to 2.0 million). In this case, estimated compliance costs would rise to roughly $593 million annually, thereby approaching the value of estimated monetized benefits and reducing the net monetized benefits approximately to zero. In a second break-even sensitivity test in this analysis, which addresses benefits, OSHA examined how much its estimate of the final rule’s aggregate benefits in terms of avoided fatalities and injuries would have to decline for the costs to equal the benefits, thereby eliminating the net monetized benefits. Net monetized benefits would decline to zero if, for example, the Agency overestimated fatalities prevented by the final standards by roughly 93 percent (if prevented fatalities were 15 rather than 29) and overestimated injuries prevented by the standards by roughly 108 percent (if prevented injuries were 2,814 rather than 5,842). OSHA believes that a ten percent overestimate of fatalities is unlikely given the conservative (low) accident preventability rates projected for many provisions of the final standards. Further, OSHA notes, as discussed earlier, that some of the other benefits of the rule are non-quantifiable, such as the benefits resulting from making several provisions in this final standard compatible with provisions in the Agency’s construction fall protection standards. OSHA believes that these benefits would increase the overall net benefits of the final rule. E:\FR\FM\18NOR7.SGM 18NOR7 82936 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations srobinson on DSK5SPTVN1PROD with RULES6 J. References American National Standard InstituteInternational Window Cleaning Association (ANSI–IWCA, 2001). Window Cleaning Safety. IWCA I–14.1– 2001, October 2001. Amodeo, Linda (Amodeo, 2003). Comments submitted to OSHA Docket S029. 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Accessed May 29, 2013. Neuhauser, F.W., S.S. Seabury, and J. Mendeloff, 2013. ‘‘The Impact of Experience Rating on Small Employers: Would Lowering the Threshold for Experience Rating Improve Safety?’’ Rand Working Papers WR–955. https:// www.rand.org/pubs/working_papers/ WR955.html. National Institute for Occupational Safety and Health (NIOSH, 1988). U.S. Department of Health and Human Services. Centers for Disease Control. National Institute for Occupational Safety and Health. National Occupational Exposure Survey. Volume III: ‘‘Analysis of Management Interview Responses,’’ March 1988. Occupational Safety and Health Administration (OSHA, 2012a). Accident Investigation Search, 2012. https:// www.osha.gov/pls/imis/ accidentsearch.html. Occupational Safety and Health Administration (OSHA, 2012b). OSHA, Directorate of Training and Education. Resource Center Loan Program. Training Materials by Subject. https:// www.osha.gov/dte/resource_center/ catalog.html. Occupational Safety and Health Administration (OSHA, 2010). ‘‘WalkingWorking Surfaces and Personal Protective Equipment (Fall Protection Systems)’’; Proposed Rule. Federal Register 75: 28862–29153. May 24, 2010. Docket OSHA–2007–0072 (Ex. OSHA– 2007–0072–0001). Occupational Safety and Health Administration (OSHA, 2009). Analysis of OSHA Integrated Management Information System Inspection Data, 1995–2001. January 2009. Docket OSHA–2007–0072 (Ex. OSHA–2007– 0072–0049). Occupational Safety and Health Administration (OSHA, 2006a). Accident Investigation Search, 2006. https:// www.osha.gov/pls/imis/ accidentsearch.html. Occupational Safety and Health Administration (OSHA, 2006b). Standard Interpretations: 2/10/2006—‘‘The use of ship’s stairs instead of fixed stairs in general industry.’’ https://www.osha.gov/ pls/oshaweb/owadisp.show_ document?p_ table=INTERPRETATIONS&p_id=25301. Occupational Safety and Health Administration (OSHA, 2006c). Standard Interpretations: 2/10/2006— ‘‘Circumstances under which installation of fixed industrial stairs with a slope between 50 degrees and 70 degrees from the horizontal would be considered a de minimis violation.’’ https:// www.osha.gov/pls/oshaweb/ owadisp.show_document?p_ table=INTERPRETATIONS&p_id=25299. Occupational Safety and Health Administration (OSHA, 2003a). Standard Interpretations: 05/05/2003—‘‘Standards VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 applicable to step bolts and manhole steps; load requirements for step bolts.’’ https://www.osha.gov/pls/oshaweb/ owadisp.show_document?p_ table=INTERPRETATIONS&p_id=24564 corrected 4/4/2005. Occupational Safety and Health Administration (OSHA, 2003b). ‘‘Walking and Working Surfaces; Personal Protective Equipment (Fall Protection Systems)’’; Proposed Rule. Federal Register 68: 23528–23568, May 2, 2003. Occupational Safety and Health Administration (OSHA, 1996). ‘‘Safety Standards for Scaffolds Used in the Construction Industry’’; Final Rule. Federal Register 61: 46026–46126, August 30, 1996. Occupational Safety and Health Administration (OSHA, 1994). ‘‘Background Document to the Regulatory Impact and Regulatory Flexibility Assessment for the PPE Standard.’’ Office of Regulatory Analysis, March 15, 1994. Docket OSHA–S060– 2006–0681 (Ex. OSHA–S060–2006– 0681–0333). Occupational Safety and Health Administration (OSHA, 1993). ‘‘Fixed Ladders Used on Outdoor Advertising Structures/Billboards in the Outdoor Advertising Industry.’’ OSHA Instruction STD 1–1.14, January 26, 1993. https:// www.osha.gov/pls/oshaweb/ owadisp.show_document?p_ table=DIRECTIVES&p_id=1756. Occupational Safety and Health Administration (OSHA, 1991a). December 5, 1989, letter from Mr. Thomas J. Shepich to Mr. Carl Pedersen regarding Descent Control Devices. Memorandum to Regional Administrators from Patricia K. Clark, Director, Directorate of Compliance Programs, March 12, 1991. Docket OSHA–S029–2006–0662 (Ex. OSHA– S029–2006–0662–0019). Occupational Safety and Health Administration (OSHA, 1991b). ‘‘Grant of Variance.’’ Federal Register 56: 8801, March 1, 1991. https://www.osha.gov/pls/ oshaweb/owadisp.show_document?p_ table=FEDERAL_REGISTER&p_ id=13148. Accessed by ERG on August 26, 2006. Occupational Safety and Health Administration (OSHA, 1990a). ‘‘Preliminary Regulatory Impact and Regulatory Flexibility Analysis of Proposed Subparts D and I of 29 CFR Part 1910 Walking and Working Surfaces.’’ Occupational Safety and Health Administration, Office of Regulatory Analysis, March 6, 1990. Docket OSHA–S041–2006–0666 (Ex. OSHA–S041–2006–0666–0689). Occupational Safety and Health Administration (OSHA, 1990b). ‘‘Application of Gannett Outdoor Companies for a Variance Concerning Fixed Ladders.’’ Federal Register 55: 26796–26797, June 29, 1990. https:// www.osha.gov/pls/oshaweb/ owadisp.show_document?p_ table=FEDERAL_REGISTER&p_ id=13085. PO 00000 Frm 00445 Fmt 4701 Sfmt 4700 82937 Occupational Safety and Health Administration (OSHA, 1981). Standard Interpretations: 12/02/1981— ‘‘Alternating tread type stair is approved as safe for use.’’ https://www.osha.gov/ pls/oshaweb/owadisp.show_ document?p_ table=INTERPRETATIONS&p_id=18983. Office of Management and Budget (OMB, 2007). North American Industry Classification System—2007. Executive Office of the President, 2007. Office of Management and Budget (OMB, 2005). Regulatory Reform of the U.S. Manufacturing Sector. March 2005. https://www.whitehouse.gov/sites/ default/files/omb/assets/omb/inforeg/ reports/manufacturing_initiative.pdf. Office of Management and Budget (OMB, 2003). Regulatory Analysis. Circular A–4, September 17, 2003. https:// www.whitehouse.gov/omb/circulars/ a004/a-4.pdf. Platts.com (Platts, 2007). 2007 UDI Directory of Electric Power Producers and Distributors, 115th Edition, Electrical World Directory. The McGraw-Hill Companies, 2007. Seong, Si Kyung and John Mendeloff (Seong and Mendeloff, 2008). ‘‘Assessing the Accuracy of OSHA’s Projections of the Benefits of New Safety Standards.’’ American Journal of Industrial Medicine 45(4): 313–328, 2004. Small Business Administration (SBA, 2010). Table of Small Business Size Standards Matched to North American Industry Classification System Codes, 2010. https://www.sba.gov/content/table-smallbusiness-size-standards. Small Business Administration (SBA, 1996). Regulatory Flexibility Act of 1980 (Pub. L. 96–354), amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104–121). U.S. Census Bureau (Census Bureau, 2002/ 2006). Statistics of U.S. Businesses, 2002/2006. https://www.census.gov/csd/ susb/. U.S. Environmental Protection Agency (U.S. EPA, 2010). Guidelines for Preparing Economic Analyses. EPA 240–R–10–001, December 2010. https://yosemite.epa.gov/ ee/epa/eed.nsf/webpages/ Guidelines.html. U.S. Internal Revenue Service (IRS, 2013). 2010 Corporation Source Book, Publication 1053. https://www.irs.gov/ uac/SOI-Tax-Stats-Corporation-SourceBook:-U.S.-Total-and-Sectors-Listing Accessed by OSHA on 4/19/2013. U.S. Internal Revenue Service (IRS, 2009). Corporation Source Book. https:// www.irs.gov/uac/SOI-Tax-StatsCorporation-Source-Book:-U.S.-Totaland-Sectors-Listing. Accessed, 2009. U.S. Internal Revenue Service (IRS, 2003). Corporation Source Book, 2003. https:// www.irs.gov/taxstats/bustaxstats/article/ 0,,id=149687,00.html. Urban Institute/Brookings, 2012. ‘‘Historical Average Federal Tax Rates for All Households,’’ Tax Policy Center, October. Available at https:// www.taxpolicycenter.org/taxfacts/ displayafact.cfm?Docid=456. E:\FR\FM\18NOR7.SGM 18NOR7 82938 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations Viscusi, Kip and Joseph Aldy (Viscusi and Aldy, 2003). ‘‘The Value of a Statistical Life: A Critical Review of Market Estimates Throughout the World.’’ The Journal of Risk and Uncertainty, 27–1 (2003): 5–76. Workers’ Compensation Research Institute (WCRI, 1993). ‘‘Income Replacement in California.’’ WCRI Research Brief, Special Edition. Volume 9, number 4S, Cambridge, MA, December 1993. Also available in Docket OSHA–S777–2006– 0938 (Ex. 0266). Wright, Michael C. (Wright, 2003). Comments submitted to OSHA Docket S–029. Michael C. Wright, LJB, Inc. (Ex. OSHA– S029–2006–0662–0350). Zeolla, Robert J. (Zeolla, 2003). Comments submitted to OSHA Docket S–029. Robert J. Zeolla, Jr., President, Sunset Window Cleaning Company. June 5, 2003 (Ex. OSHA–S029–2006–0662– 0348). Appendix A. Derivation of Prevention Factor Adjustments srobinson on DSK5SPTVN1PROD with RULES6 To derive possible quantitative adjustment factors from the Seong and Mendeloff study OSHA examined each of their case studies. In most cases, Seong and Mendeloff did not derive a quantitative difference between what happened and what OSHA estimated. Instead their goal was to qualitatively establish that overestimation was routine and in some cases extremely large. To derive quantitative estimates from this data requires making some assumptions. First, OSHA has assumed that all declines that actually occurred are attributable to a new standard. This will tend to overestimate the effectiveness of standards. Second, in some cases declines take place over time, and are significant over the long run but show little effect in the first VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 year. If there is no decline in early years but a major one thereafter, OSHA has developed two estimates, one based on the first year and one based on what happened over time. • Scaffolding for General Industry (61 FR 46026, August 30, 1996): OSHA originally predicted that the scaffolding rule would reduce fatalities by 59 percent, whereas Seong and Mendeloff find an actual reduction of 21 percent, yielding a realizedto-projected effectiveness ratio of 0.36 (=0.21/ 0.59). • Electrical Work Practices for General Industry (55 FR 31984, August 6, 1990)— OSHA’s predicted reduction was 41.4 percent. The actual decrease was negligible immediately upon finalization of the rule and up to 48 percent in the latter portion of the post-implementation decade, thus yielding a range of ratios from 0 (=0/0.414) if the immediate post-implementation result is interpreted as the amount attributable to the rule, or up to 0.61 (=0.25/0.414 where 0.25 is the annualization over a ten-year period with a 7 percent discount rate of a reduction pattern that rises linearly from 0 immediately upon finalization to 48 percent after a decade) if the longer-term reduction is interpreted as attributable to the rule. • Process Safety Management (PSM) in General Industry (57 FR 6356, February 24, 1992)—OSHA’s predicted reduction was 40 percent in the first five years and at least 80 percent in subsequent years, and the actual decrease was a reduction of around 50 percent in the first year (though a substantial portion of this was probably attributable to the rule taking effect in a recession) and then no further decreases in subsequent years, yielding a ratio of 0.88 (=0.54/0.61 where 0.54 and 0.61 are annualizations over a tenyear period with a 7 percent discount rate of the reduction patterns just listed). PO 00000 Frm 00446 Fmt 4701 Sfmt 4700 • Permit-Required Confined Spaces for General Industry (58 FR 4462, January 14, 1993)—OSHA’s predicted reduction was 85 percent, and the actual decrease is described by Seong and Mendeloff as probably at least 50 percent (though the discussion of relative results in greater- and lesser-affected states undermines the claim of the rule’s effectiveness), yielding a ratio of 0.59 (=0.5/ 0.85). • Electrical Power Generation (59 FR 4320, January 31, 1994)—OSHA’s predicted reduction was 68 percent, but actual deaths ‘‘dipped in 1993, the year the standard became effective, then went back to their prestandard levels through 1997,’’ and subsequently dropped by one-third or onehalf, depending on the measure used. The resulting ratios range from approximately 0 (=0/0.68) if the immediate postimplementation result is interpreted as the amount attributable to the rule, up to 0.41 (=0.28/0.68 where 0.28 is the annualization over a ten-year period with a 7 percent discount rate of a reduction pattern of zero in the first four years and 50 percent subsequently) if the longer-term reduction is interpreted as attributable to the rule. • Logging Operations (59 FR 51672, October 12, 1994)—OSHA’s predicted reduction was 70 percent, but there is no indication that injuries decreased at all, yielding a ratio of 0 (=0/0.7). The average of the six ratios ranges from 0.3, if the lower end of a range is used, to 0.47, if the higher end is used. Appendix B. Fatal Accidents on Walking-Working Surfaces Preventable by the Final Standards (2006–2010 OSHA IMIS) BILLING CODE 4510–29–P E:\FR\FM\18NOR7.SGM 18NOR7 srobinson on DSK5SPTVN1PROD with RULES6 VerDate Sep<11>2014 Fatal Accidents on Walking-Working Surfaces Preventable by the Final Standards (2006-2010 OSHA IMIS) Year Brief Description of Accident Abstract Employee Is Killed in Fall From Ladder Cleaning Windows At approximately 11:00 a.m. on December 4, 2007, Employee #1, a window cleaner, was cleaning windows on the fourth floor of a building. The employer provided a boatswain chair, rope, and other window washing equipment and briefly showed Employee# 1 how to assemble correctly the metallic ladder. The employer did not provide any job specific training and did not develop a site-specific fall protection plan. Employee #1 was not using any fall protection devices and was not using the boatswain chair that was provided. He was descending a ladder when he lost his balance and fell 30 ft straight down parallel to the ladder and hit the middle section of the ladder before striking his head on the ground. He sustained a blunt Frm 00447 200677102 I 311087571 2007 Fmt 4701 Event Type Environmental Factor 7349: Building Maintenance Services, NEC 1 Ladder Fall (From Elevation) Other 2812: Alkalies and Chlorine Manufacturing 1 Ladder Fall (From Elevation) Other tr:::.11m:::. tn thA hA:::.rl :::.nrl w:::.c:: hiAArlinn thrn11nh thA AliA<: mn11th :::.nrl Fall From Fixed Ladders Sfmt 4725 E:\FR\FM\18NOR7.SGM Source of Injury SIC: Description Fall F From Ladder (Type U (Tvoe Unspecified) fied) Jkt 241001 PO 00000 Number of Fatalities 202087847 I 309444396 2006 Employee Is Killed in Fall From Fixed Ladder At approximately 7:15a.m. on November 27, 2006, Employee #1 was working in the filling/packaging department at a cat litter manufacturing plant. He was ascending a fixed ladder to retrieve a defective package from a conveyor. The ladder was damaged and lightly coated with cat litter dust. Employee #1 was killed when he fell fi'om the 12-ft tall ladder and struck his head on the concrete floor. 18NOR7 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 23:45 Nov 17, 2016 Accident Summary Number I Accident Inspection Number 82939 ER18NO16.309</GPH> srobinson on DSK5SPTVN1PROD with RULES6 Accident Summary Number I Accident Inspection Number Year Jkt 241001 PO 00000 200823839/ 311250302 2008 Frm 00448 Abstract Employee Dies After Sustaining Leg Injury From Fall At approximately 8:00 p.m. on May 21, 2008, Employee #1 was feeding a plastic sheet into ... [a] trim press .... He used fixed industrial stairs to access the canopy and feed the sheet into the trim press. The stairs to this trim press had a missing top rail on one of the open sides and the rungs had worn slip resistant material. As he worked, he may have slipped or lost his balance, falling from the ladder. He struck the ground and sustained blunt force trauma to his left thigh. The accident was not reported that day, and Employee #1 visited a medical center and emergency room on May 22 and May 23. On the evening of May 23, he was admitted to the intensive care, where he continued to receive treatment, but died at 2:40 a.m. on May24. Fmt 4701 Number of Fatalities Source of Injury Event Type Environmental Factor 3089: Plastics Products, NEC 1 Bodily Motion Other Other 4214: Local Trucking With Storage 1 Ladder Fall (From Elevation) Work-Surface/Facil.Layout Cond. Fall From Step Ladder Sfmt 4725 E:\FR\FM\18NOR7.SGM SIC: Description Brief Description of Accident 201681913/ 310853262 2009 Employee Is Killed in Fall From Ladder 18NOR7 On January 29, 2009, Employee #1, a truck driver, and Coworker #1, a mechanic, were working on a reefer semi-trailer in the maintenance shop. The refrigeration unit had been removed from the front of the semi-trailer and plywood had been bolted over the hole. Employee #1 and Coworker #1 positioned two portable step ladders in front of the semi- trailer in order to apply sealant on the plywood and semi-trailer seam. Employee #1 climbed a damaged 8-ft step ladder to apply sealant to the top seam. He fell off the ladder onto the concrete floor and suffered severe injuries and died. Although there were no witnesses, it appeared that Employee #1 was standing on the top step of the damaged ladder when he fell. The employer had not provided ladder safety training. Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 23:45 Nov 17, 2016 ER18NO16.310</GPH> 82940 VerDate Sep<11>2014 Fatal Accidents on Walking-Working Surfaces Preventable by the Final Standards, continued (2006-2010 OSHA IMIS) srobinson on DSK5SPTVN1PROD with RULES6 VerDate Sep<11>2014 Fatal Accidents on Walking-Working Surfaces Preventable by the Final Standards, continued (2006-2010 OSHA IMIS) Year Abstract Employee Falls From Ladder and Dies On June 10, 2010, Employee #1, along with coworker #1, 2, 3, 4 and 5 were on site to do construction work to the interior of a building. They were working on a construction of a new, handicapped building entrance, construction of a new foyer, and construction of a common bathroom area. Employee #1 along with Coworkers #1 and 3 were working on the common bathroom area. Each employee was working independently on different sections of the bathroom. The bathroom was framed in at this point, with some sheet rock already installed. They were continuing installation of sheetrock. Coworker #1 was working near the outside windows (west), Employee #1 was working in the opposite side of the bathroom (east), on the upper, more intricate pieces of the wall, and Coworker #3 was working on the top of a utility closet in the bathroom (central section of bathroom). Each one could see the other one working. Employee #1 was utilizing a step ladder to reach the higher portions of the bathroom. The heights were greater than 10 ft. The step ladder being used was a ... 12- ft fiberglass stepladder. The step ladder was propped up against the wall near the corner so Employee #1 could reach the upper corner to finish the pieces surrounding the existing structural steel of the building. Employee #1 was not utilizing the step ladder in accordance with the manufacturer's recommendations .... Employee #1 remained in the common bathroom area, working, while Coworker #1, 2, 3 and 4 took their lunch breaks ... Coworker #3 went to the last known working location of Employee #1, the bathroom, and found him lying lifeless at the base of the step ladder he was using. Coworker #3 immediately ran out to the other employees, and called 911. The Minneapolis Police and EMS arrived at the scene. Employee #1 was treated by the EMS, and later pronounced DOA Jkt 241001 Brief Description of Accident PO 00000 Frm 00449 Fmt 4701 Sfmt 4725 200515070 I 314596982 2010 SIC: Description Number of Fatalities Source of Injury Event Type Environmental Factor 6512: Nonresidential Building Operators 1 Working Surface Fall (From Elevation) Other E:\FR\FM\18NOR7.SGM 18NOR7 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 23:45 Nov 17, 2016 Accident Summary Number I Accident Inspection Number 82941 ER18NO16.311</GPH> srobinson on DSK5SPTVN1PROD with RULES6 82942 VerDate Sep<11>2014 Jkt 241001 PO 00000 Accident Summary Number I Accident Inspection Number Year Frm 00450 Fmt 4701 SIC: Description Number of Fatalities Source of Injury Event Type Environmental Factor Employee Is Killed When He Falls On January 26, 2007, Employee #1 was inventorying material that was stored on metal shelving racks. He was using a rolling ladder to reach the upper shelves of the rack. He could not reach the material stored on an upper shelf located 10 ft off the ftoor and climbed onto the rack. He fell from the rack and landed on the ftoor. He received back and head injuries and was hospitalized and died later. 5943: Stationery Stores 1 Ladder Fall (From Elevation) Work-Surface/Facil.Layout Cond. Employee Is Killed in Fall From Rolling Ladder Tower On September 13, 2010, Employee #1, working in the tool department, attempted to assist a customer by climbed a rolling ladder tower to access product located on product racking approximately nine feet from ftoor level. Employee #1 left the top level of the ladder stand and climbed onto the product rack. Employee #1 then attempted to reboard the ladder stand from the storage rack when he fell approximately 9 feet to the concrete ftoor. Employee #1 suffered fatal head injuries. 5211: Lumber and Other Building Materials 1 Ladder Fall (From Elevation) Other 7699: Repair Services, NEG 1 Ladder Fall (From Elevation) Other Brief Description of Accident Fall From Rolling Ladder 200082865/ 310182233 2007 Sfmt 4725 E:\FR\FM\18NOR7.SGM 200263945/ 314914094 2010 18NOR7 Fall From Ladder (others) 200830990 I 307606905 ER18NO16.312</GPH> Abstract 2006 Employee Is Brain Dead in Fall From Ladder On February 7, 2006, an employee fell approximately 7ft, when the portable metal ladder stand that he was using tipped over. The employee suffered severe head trauma and was later pronounced brain dead. A wheel was missing from the ladder at the time of the inspection. Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 23:45 Nov 17, 2016 Fatal Accidents on Walking-Working Surfaces Preventable by the Final Standards, continued (2006-2010 OSHA IMIS) srobinson on DSK5SPTVN1PROD with RULES6 VerDate Sep<11>2014 Jkt 241001 Accident Summary Number I Accident Inspection Number Year SIC: Description Number of Fatalities Source of Injury Event Type Environmental Factor Employee Is Killed in Fall From Platform On January 12, 2006, Employee #1 was working alone at night, greasing fittings on a loading platform that was 11 feet above the ground. The loading platform consisted of an adjustable ladder leading to a guardrail system, which lowers to the top of a tanker truck when loading. The guardrails become fall protection for employees, when they are opening the valves on the top of the truck. When there are no trucks at the loading platform, the adjustable ladder assembly is kept in the raised, stored position. An automatic foot locks the clips into place over a "pin" or "bolf' to keep the assembly from descending inadvertently. It is believed that Employee #1 leaned against the adjustable ladder assembly while greasing fittings on the platform and the assembly descended unexpectedly, causing him to lose his balance and fall to the ground, striking his head on the concrete pad area, resulting in his death. The accident was not witnessed. Inspection of the ladder assembly revealed that the "pin" or "bolf' part of the foot lock was missing. 2874: Phosphatic Fertilizers 1 Ladder Fall (From Elevation) Work-Surface/Facil.Layout Cond. Employee Dies in Fall From Crane At approximately 12:15 a.m. on January 12, 2007, Employee #1 was working as part of a crew that was cleaning and serving a 370-[t]on . . [c]rane. The maintenance crew had parked and locked out the crane, and removed the worm gear box casing, so that the service crew could access the worm gear. The trolley was parked approximately 90-in. away from the trolley stop. This left one side of the platform open to an approximate 110 ft to 115 ft fall hazard. Employee #1 was descending a 6-ft metal rung ladder from the bridge of the crane and was killed when he slipped and fell while attempting to place his foot on the trolley rail. He struck the crane during his fall and landed on the new worm gear which was lying on the ground. 8999: Services, NEC 1 Working Surface Fall (From Elevation) Work-Surface/Facil.Layout Cond. Brief Description of Accident Abstract PO 00000 Frm 00451 Fmt 4701 202450326 I 309674034 2006 Sfmt 4725 E:\FR\FM\18NOR7.SGM 18NOR7 202087946/ 309444941 2007 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 23:45 Nov 17, 2016 Fatal Accidents on Walking-Working Surfaces Preventable by the Final Standards, continued (2006-2010 OSHA IMIS) 82943 ER18NO16.313</GPH> srobinson on DSK5SPTVN1PROD with RULES6 82944 VerDate Sep<11>2014 Jkt 241001 Accident Summary Number I Accident Inspection Number Year PO 00000 Frm 00452 200555217 I 311523609 2008 SIC: Description Number of Fatalities Source of Injury Event Type Environmental Factor Employee Falls From Ladder, Later Dies At approximately 8:30 a.m. on April15, 2008, Employee #1 was descending a ladder on oil drilling rig #6. Employee #1 was wearing a body harness that was hooked into the rig's counter weighted ladder climbing device. For some reason, the self-retracting lifeline was not in place. Employee #1 fell approximately 60 ft to the rig floor. Employee #1 sustained head and back injuries. Employee #1 was flown to a local hospital, where he died on April17, 2008. 1381: Drilling Oil and Gas Wells 1 Working Surface Fall (From Elevation) Other Employee Dies After Fall From Ladder At approximately 8:15a.m. on February 18, 2008, Employee #1 responded to a call to repair a leaking tractor-trailer. Upon arrival at the site, Employee #1 used a 12-foot folding ladder to reach the top of the trailer, which measured 13.25 feet high. While sealing the leak, Employee #1 fell from the ladder. He landed on his back and struck his head on the ground. Employee #1 was taken to a nearby hospital, where he died. 7549: Automotive Services, NEC 1 Bodily Motion Struck Against Work-Surface/F acil.Layout Cond. Employee Falls From Crane On June 6, 2009, Employee #1, a maintenance supervisor ... was on a charging crane, he was going up an 88-foot vertical ladder on the crane trolley, while his crew was about to-do a cable change on the 75-ton auxiliary hook. Employee #1 slipped off the ladder and fell backwards approximately 80 feet to the ground, he was also observed hitting a spreader beam on the floor level during the fall and severing his right leg. Employee #1 was pronounced dead at the scene by paramedics and the Coroner Investigator. No fall protection equipment was used by Employee #1 or any the other employees on the crew. Fall protection was available by company and Employee #1 had knowledge of its availability. 3312: Blast Furnaces and Steel Mills 1 Ladder Fall (From Elevation) Work-SurfaceiFacil.Layout Cond. Brief Description of Accident Abstract Fmt 4701 Sfmt 4725 201282910 I 311037931 2008 E:\FR\FM\18NOR7.SGM 18NOR7 ER18NO16.314</GPH> 2009976741 313126807 2009 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 23:45 Nov 17, 2016 Fatal Accidents on Walking-Working Surfaces Preventable by the Final Standards, continued (2006-2010 OSHA IMIS) srobinson on DSK5SPTVN1PROD with RULES6 VerDate Sep<11>2014 Jkt 241001 PO 00000 Accident Summary Number I Accident Inspection Number Frm 00453 201682085 I 314284340 Year 2010 Abstract Employee Is Killed in Fall From Ladder On September 8, 2010, Employee #1 was retrieving items from a warehouse shelving unit She used a 14-ft ... roll[ing]ladder, and she fell to the ground. She was found cold, unconscious and lying on her back at the base of the ladder. The safety brake mechanism on the ladder was disengaged, and it was reported that Employee #1 had been experiencing dizzy spells for the past week. Employee #1 was killed. Fmt 4701 Brief Description of Accident SIC: Description Sfmt 4725 E:\FR\FM\18NOR7.SGM 18NOR7 Number of Fatalities Source of Injury Event Type Environmental Factor 1 Ladder Fall (From Elevation) Other 1 Buildings I Structures Fall (From Elevation) Other 1 Ladder Fall (From Elevation) Work-Surface/Fad!.Layout Cond. 4226 Special Warehousing and Storage, NEC Fall From Roof 201773066 I 310364385 2017515751 309197861 2006 2006 HVAC Maintenance Worker Falls Off Roof and Killed On October 27, 2006, a maintenance contractor was on the roof of a building to service an HVAC unit He fell approximately 25 feet from the roof, and was killed. Employee Is Killed in Fall From Roof At approximately 3:27p.m. on October 17, 2006, an employee was up on the roof 25 feet from the ground winterizing a swamp-cooler. At the time of the accident, the employee was putting on the side panels of the swamp-cooler, when he lost his footing and fell down 1O-ft to the second level and then to the ground striking his head on the pavement as he landed. He was semi-conscious, when he was transported to the hospital where he remained until his death on October 22, 2006. At the time of the accident, the employe[r] did not have a fall protection system in place. 7349 Building Maintenance Services, NEC 5812: Eating Places Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 23:45 Nov 17, 2016 Fatal Accidents on Walking-Working Surfaces Preventable by the Final Standards, continued (2006-2010 OSHA IMIS) 82945 ER18NO16.315</GPH> srobinson on DSK5SPTVN1PROD with RULES6 82946 VerDate Sep<11>2014 Jkt 241001 Accident Summary Number I Accident Inspection Number SIC: Description Number of Fatalities Source of Injury Event Type Environmental Factor 2006 Employee Is Killed After Being Engulfed in Silo On September 24, 2006, Employee #1, a mill supervisor, was working alone at a country animal feed grain mill. He climbed 55 ft up a 70 ft caged ladder mounted between two wet corn silos. Employee #1 then cross over a guardrail and proceeded across the silo's conicalshaped, 30-degree-sloped roof. He opened a roof access hatch that measured 30-in. wide by 36-in. long, which led to an area classified as a permit-required confined space. After Employee #1 could not be located, rescue operations were initiated at 2:10p.m. Emergency responders removed approximately 30,000 bushels of corn by hand before finding Employee #1 at 2:01 a.m. the following morning. He was killed. Employee #1 was not wearing fall protection equipment even though the equipment was available. 2048: Prepared Feeds, NEC 1 Dust! Particles/ Chips Other Work-Surface/Facil.Layout Cond. 2006 Employee Sustains Concussion, Is Killed in Fall Through Roof On August 4, 2006, Employee #1 was working for a firm that provided building cleaning and maintenance services. He fell through a roof and sustained a concussion. He was killed. 7349 Building Maintenance Services, NEG 1 Buildings I Structures Fall (From Elevation) Other 2006 Employee Is Killed in Fall From Roof On July 5, 2006, Employee #1 was changing a photoelectric cell of an outdoor lamp, located on the roof of the second-story building. Employee #1 fell to the ground from the building roof approximately 20 ft. He sustained bruises, contusions, and abrasions. Employee #1 was transported to the hospital, where he died a few hours later. 8999: Services, NEC 1 Other Fall (From Elevation) Other 2006 Employee Is Killed in Fall From Trailer On May 25, 2006, Employee #1 was covering a trailer full of bark with a tarp, when he lost his balance. He fell approximately 10 ft and landed upon the ground, sustaining severe head trauma that killed him. 2431: Millwork 1 Motor Vehicle (Indus) Faii(From Elevation) Work-Surface/FacilLayoutCond Year PO 00000 Frm 00454 200355691 I 310498415 Fmt 4701 Sfmt 4725 E:\FR\FM\18NOR7.SGM 200901890 I 307412270 18NOR7 202260758/ 308100460 201282258 I 309617694 ER18NO16.316</GPH> Brief Description of Accident Abstract Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 23:45 Nov 17, 2016 Fatal Accidents on Walking-Working Surfaces Preventable by the Final Standards, continued (2006-2010 OSHA IMIS) srobinson on DSK5SPTVN1PROD with RULES6 VerDate Sep<11>2014 Jkt 241001 Accident Summary Number I Accident Inspection Number Year SIC: Description Number of Fatalities Source of Injury Event Type Environmental Factor Employee Is Killed in Fall From Roof On February 1, 2006, Employee #1 was working as a heating, ventilation, and air conditioning (HVAC) mechanic, performing scheduled maintenance on the HVAC units at a ... restaurant. There were three HVAC units on the restaurant roof, which was about 15feet high. Along the edge of the roof, there was a 15-inch wide, 19inch high parapet. Employee #1 climbed a portable metal ladder and took a garden-type water hose, connected to a spigot at ground level, onto the roof. Carrying the hose to the opposite side of the roof from where the ladder was located, he apparentiy walked either backward or sideways, not watching where he was walking. He walked into the parapet wall and fell from the roof, sustaining injuries to his head, knees, left hand, and left wrist. He was taken to a local hospital, where he was pronounced dead. The cause of death was a closed head injury due to blunt impact to his head and neck. His injuries included head fractures, hemorrhage, and contusions. 7623 Refngeration Service and Repair 1 Working Surface Fall (From Elevation) Work-Surface/Facil.Layout Cond. Employee Falls From Elevation and Is Killed On May 9, 2006, an employee was engaged in a roof cleaning operation consisting of cleaning lint collection traps from dryer stacks. A forklift basket attachment, not secured to the forklift blades, containing cleaning equipment, was lifted to the roof approximately 20 ft above the ground. Upon completion of the cleaning operation, the employee stepped onto the basket attachment to load a hand truck, when the attachment flipped off the forks. The employee fell from the attachment onto a metal tote located at ground level. The employee was then struck by the falling attachment, which weighed approximately 400 lbs. The employee was transported to ... [the h]ospital where he died from chest trauma at approximately 6:00p.m. 7218: Industrial Launderers 1 Other Struck By Other Brief Description of Accident Abstract PO 00000 Frm 00455 Fmt 4701 201353026/ 308436013 2006 Sfmt 4725 E:\FR\FM\18NOR7.SGM 18NOR7 202461596/ 310112602 2006 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 23:45 Nov 17, 2016 Fatal Accidents on Walking-Working Surfaces Preventable by the Final Standards, continued (2006-2010 OSHA IMIS) 82947 ER18NO16.317</GPH> srobinson on DSK5SPTVN1PROD with RULES6 82948 VerDate Sep<11>2014 Jkt 241001 Accident Summary Number I Accident Inspection Number PO 00000 Frm 00456 Fmt 4701 Sfmt 4725 E:\FR\FM\18NOR7.SGM 18NOR7 Source of Injury Event Type Environmental Factor 1 Working Surface Fall (From Elevation) Work-Surface/Facil.Layout Cond. 1 Materials Handlg Eq. Struck By Materials Handlg. Equip./Method 6531: Real Estate Agents and Managers 1 Other Fall (From Elevation) Weather, Earthquake, Etc. 9999: Nonclassifiable Establishmenls 1 Other Fall (From Elevation) Overhead Moving/Falling Obj. Accid. 1 Buildings/ Structures Fall (From Elevation) Work-Surface/Facil.Layout Cond. Year Abstract 2006 Employee Is Killed in Fall From Roof Employee #1 was passing from one section of a roof to another when he fell approximately 17.5 feet fi"om the roof edge to the concrete sidewalk and was killed. Building Maintenance Services, NEC 2006 Employee Is Killed in Fall From Roof Employee #1 was working on the roof installing safety lines and fell approximately 45 fllo the ground. Employee #1 was killed. Construction Matenals, NEC Employee Is Killed in Fall From Roof At 2:54p.m. on December 26, 2007, Employee#1, an apartment building maintenance worker, was patching a roof leak approximately 25 feet from the edge of a building's root Employee #1 was killed when he fell approximately 26 feet fi"om the edge of the roof over the building's boiler room to an interior courtyard below. An investigation was pending. Employee Is Killed in Fall From Sloped Roof At 9:00p.m. on October 19, 2007, Employee #1 was painting a sloped roof of a gas station, with use of the artificial portable lamps. He was working from the top of the tile roof where the eave was 12ft. 4-in. high. Employee #1 slipped and fell to the ground. He was transported to a local hospital and remained in a coma until October 25, 2007, when he died. There were no actual eye witnesses to the accident Employee #1 was not wearing a fall protection at the lime of accident Employee Is Killed in Fall From Roof On July 23, 2007, Employee #1 was on a roof cleaning cooking vents. His supervisor heard a loud noise and found Employee #1 on the ground. Employee #1 was pronounced dead allhe hospitaL SIC: Description 7349 200023240/ 309779502 200676393 I 310210455 201169430 I 126199819 200677029 I 311086672 201762945/ 311063762 ER18NO16.318</GPH> Number of Fatalities Brief Description of Accident 2007 2007 2007 5039 5812 Eating Places Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 23:45 Nov 17, 2016 Fatal Accidents on Walking-Working Surfaces Preventable by the Final Standards, continued (2006-2010 OSHA IMIS) srobinson on DSK5SPTVN1PROD with RULES6 VerDate Sep<11>2014 Jkt 241001 PO 00000 Frm 00457 Accident Summary Number I Accident Inspection Number Year 200603660 I 311308225 Fmt 4701 201773090 I 310952981 Abstract 2007 Employee Killed in Fall From Roof On July 19, 2007, Employee #1 was attempting to step onto a ladder from a roof when he fell to the ground, and suffered fatal injuries. 2007 Employee Is Killed in Fall During Refrigeration Installation On May 31, 2007, an employee was installing a refrigeration unit on the roof. There was a sudden release of air which startled the employee. The employee stepped back and fell42 feet. The employee was killed. 2007 Employee Is Killed in Fall Employee #1 was a property manager for a hospital. Employee #1 was performing a roof examination in an area that had been repaired several times. Employee #1 had been assigned to the roof top chiller replacement project which was near[ing] ... completion. Employees of the roofing company that did the chiller replacement were on the roof completing punch list items for final payment. Employee #1 fell 150 ft and was killed. 2007 Employee Is Asphyxiated When Engulfed in Sand At approximately 2:30p.m. on January 17th, 2007, Employee #1 was on the roof of a building next to the hopper of sand attempting to break the frozen sand loose in the hopper. Employee #1 fell into the hopper and became engulfed. There was no fall protection provided for Employee #1 working around the hopper or on the roof. Employee #1 was asphyxiated. Sfmt 4725 Brief Description of Accident E:\FR\FM\18NOR7.SGM 200090603 I 310156914 18NOR7 200823466/ 309770055 Number of Fatalities Source of Injury Event Type Environmental Factor 1 Ladder Fall (From Elevation) Other 1 Working Surface Fall (From Elevation) Work-Surface/Facil.Layout Cond. 8062: General Medical & Surgical Hospitals 1 Other Fall (From Elevation) Other 3272: Concrete Products, NEC 1 Dirt! Sand/ Stone Caught in or Between Work-Surface/Facil.Layout Cond. SIC: Description 7342 Disinfecting & Pest Control Services 4222 Refrigeratec Warehousing and Storage Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 23:45 Nov 17, 2016 Fatal Accidents on Walking-Working Surfaces Preventable by the Final Standards, continued (2006-2010 OSHA IMIS) 82949 ER18NO16.319</GPH> srobinson on DSK5SPTVN1PROD with RULES6 Accident Summary Number I Accident Inspection Number Year Abstract Fatal Fall From A Roof On November 05, 2009, at approximately 9:40AM, Employees #1 and #2 were performing roofing work on the roof of building #3 at [a steel plant]. The employees were replacing 27.5-in. wide and 10-ft., 6in. long, 2.5-in. corrugation, light green translucent roof sheets with 35.5-in. by 12-ft. corrugated sheet metal. Both employees were exposed to 40 ft., 7 in. fall hazards from the eave of the roof and an approximate 70-ft. fall hazard through a fiberglass panel that gave way under the weight of the ... accident victim. Both employees were wearing harnesses; however, neither employee was tied off at the time of the accident. The lifeline was connected by placing a locking type snap hook at the peak of the roof, in such a manner, as to negate the locking mechanism of the snap hook. At the time of the .. . accident, both employees were installing the last piece of corrugated sheet metal. As Employee #1 was screwing in the corrugated sheet metal, Employee #2 was standing beside and a little behind Employee #1 , in order to help hold him in place due to the slippery condition of the corrugated sheet metal. Employee #2 slipped and fell backward through a fiberglass panel, which gave way under Employee #2's weight. Employee #2 fell approximately 70 ft. to his death into the interior of the building. Employee #2 landed on a dirt floor, inside the building. Employee #2 died from severe brain trauma. Jkt 241001 Brief Description of Accident PO 00000 Frm 00458 200841732/ 309292282 2008 Fmt 4701 SIC: Description Number of Fatalities Source of Injury Event Type Environmental Factor 3312: Blast Furnaces and Steel Mills 1 Buildings I Structures Fall (From Elevation) Work-Surface/Facil.Layout Cond. Sfmt 4725 E:\FR\FM\18NOR7.SGM 18NOR7 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 23:45 Nov 17, 2016 ER18NO16.320</GPH> 82950 VerDate Sep<11>2014 Fatal Accidents on Walking-Working Surfaces Preventable by the Final Standards, continued (2006-2010 OSHA IMIS) srobinson on DSK5SPTVN1PROD with RULES6 VerDate Sep<11>2014 Fatal Accidents on Walking-Working Surfaces Preventable by the Final Standards, continued Jkt 241001 PO 00000 202549242/ 309303717 ' Year 2008 - SIC: Description Source of Injury Event Type Environmental Factor Employee Is Killed in Fall From Roof On October 30, 2008, Employee #1 was in the process of installing a fumigation tent over a two-story residence. After erecting a 24ft extension ladder, he carried a tarp bundle, weighing approximately 120 lb to the roof. As he sat the bundle on the roof, he lost his balance, causing him to slide off the roof. The roof had an approximate slope of 30 degrees. During the fall, the bundle hit a roof extension on the first story before hitting the ground level. Employee #1 cleared the first story roof, but struck the concrete walkway on the ground level, killing him. He fell about 18 feet. 7342: Disinfecting & Pest Control Services 1 Other Fall (From Elevation) Other Employee Is Killed in Fall From Roof to Warehouse Floor At 1:30 p.m. on Sunday, July 20, 2008, a storm with strong winds and heavy rain came through the Weirton, West Virginia area, setting off a fire alarm sensor and damaging the roof of the 12th Street Warehouse at the Eagle Manufacturing Company. Company officials made a decision that afternoon to have the maintenance crew clean up the damage area the following morning. Once the debris was removed, the maintenance crew covered the area with a tarp, and a contractor would be called in to do the repairs. The employees had just finish removing the damaged layer of roofing and insulation, and were leaving the roof area, when Employee #1, instead of traveling back over the good area of the roof, walked across the damage area. Employee #1 fell through a soft spot, falling approximately 35 feet to the floor of the warehouse. Employee #1 suffered head injuries, and died while on the way to the hospital. Manufactunng lndustnes, 1 Working Surface Fall (From Elevation) Other Abstract Fmt 4701 Sfmt 4725 2008 .. Number of Fatalities Brief Description of Accident Frm 00459 200631927/ 311683684 .. 3999 E:\FR\FM\18NOR7.SGM NEG 18NOR7 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 23:45 Nov 17, 2016 Accident Summary Number I Accident Inspection Number 82951 ER18NO16.321</GPH> srobinson on DSK5SPTVN1PROD with RULES6 Jkt 241001 200002749 I 312215882 SIC: Description Number of Fatalities Source of Injury Event Type Environmental Factor Employee Is Killed in Fall From Roof At approximately 8:00 a.m. on June 18, 2008, an employee was working on the roof of a modular home section that had been constructed inside the company's facility in Boonville, MO. The employee was preparing a unit for transport. Specifically, he was covering the roof with a protective plastic wrap. He fell13.8 feet to a concrete floor. The employee was transported by medical helicopter to the University of Missouri Hospital in Columbia, MO, where he died shortly after his arrival. 2452 Prefabricated Wood Buildings 1 Working Surface Faii(From Elevation) Work-SurfaceiFacilLayoutCond Employee Is Killed in Fall Frorn Roof On April 1, 2008, Employee #1, a maintenance foreman, was working alone and was notified that the belt that opened the flue damper vent to the furnace had broken. He clirnbed a fixed ladder to access the roof to investigate the problem with the flue. He fell through the roof, landing on the furnace roorn floor approximately 30 feet below. He died fi"om the impact of landing on the furnace room floor. 3341: Secondary Nonferrous Metals 1 Working Surface Fall (Frorn Elevation) Other 2008 Employee Is Killed When He Falls From Roof On March 4, 2008, Employee #1 and a building manager were making measurements on the flat roof of a 3-story apartment building, using a 50-ft tape measure. The building was 30 feet high and had a 2-ft parapet wall. They started at the North side of the roof, and progressed to the South side. At the 200 feet mark, the manager bent down to hold one end of the tape while Employee #1 walked backwards with the tape toward the parapet wall. When the manager turned around to face the parapet wall, Employee #1 had fallen off the roof. There had been no fall arrest systems, personal fall restraint or positioning system provided. Employee #1 was killed in the fall. 6531: Real Estate Agents and Managers 1 Other Fall (From Elevation) Work-SurfaceiFacilLayoutCond 2008 Employee Falls From Roofandls Killed On February 28, 2008, Employee #1 was cleaning ice and snow off the roof of a hotel, and he slid off the roof. He fell approximately six stories. Employee #1 was killed. 3444: Sheet Metal Work 1 Working Surface Faii(From Elevation) Weather, Earthquake, Etc. Year 2008 PO 00000 Frm 00460 Fmt 4701 2013917451 308815588 2008 Brief Description of Accident Abstract Sfmt 4725 E:\FR\FM\18NOR7.SGM 201169711 I 126201045 18NOR7 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 23:45 Nov 17, 2016 Accident Summary Number I Accident Inspection Number 201573391 I 310472055 ER18NO16.322</GPH> 82952 VerDate Sep<11>2014 Fatal Accidents on Walking-Working Surfaces Preventable by the Final Standards, continued (2006-2010 OSHA IMIS) srobinson on DSK5SPTVN1PROD with RULES6 VerDate Sep<11>2014 Jkt 241001 Accident Summary Number I Accident Inspection Number PO 00000 2005559511 313028276 SIC: Description Number of Fatalities Source of Injury Event Type Environmental Factor On December 21, 2009, Employee #1 was replacing damaged polyethylene sheeting on an existing exterior of a building with an unguarded roof edge. He did not have fall protection. During his work, he lost his balance and fell approximately 11 ft to the ground. He struck the ground and was killed. 7539: Automotive Repair Shops, NEC 1 Working Surface Faii(From Elevation) Work-SurfaceiFacilLayout Cond 2009 Worker Erecting Fumigation Tent Is Killed in Fall From Roof At approximately 9:00a.m. on October 5, 2009, Employee #1 was working fulltime for a pest control company. He and a coworker had arrived at a two-story, detached, single-family home at about 8:00 a.m. and were erecting a tent around it to fumigate it. Employee #1 was on the roof, when he fell approximately 19 feet. He landed on a wooden fence on the south side of the house and sustained a fractured neck. The coworker called emergency services, and the Oceanside, CA, Fire Department responded. Employee #1 was pronounced dead at the scene 7342: Disinfecting & Pest Control Services 1 Other Faii(From Elevation) Other 2009 Employee Is Killed in Fall From Roof On September 15, 2009, Employee #1, a service technician, was moving a satellite dish on a roof when he lost his balance. He slid down the roof and fell approximately 10 ft to the ground below. Employee #1 died. Cable and Other Pay TV Services 1 Working Surface Fall (From Elevation) Work-SurfaceiFacilLayoutCond 2009 Employee Is Killed Falling From A Roof On September 3, 2009, Employee #1 and a coworker, fell from a roof edge while window washing. The coworker, on a boatswains chair, fell from edge due to counter weights not installed on outrigger. Employee #1 fell from the roof after grabbing the outrigger in an attempt to stop it from falling off roof edge. Employee #1 was killed. Building Maintenance Serv1ces, NEC 1 Working Surface Fall (From Elevation) Other 2009 Worker Is Killed in Fall From Roof Between 3:35p.m. and 4:25p.m. on June 10, 2009, Employee #1, of ... Corporation, was installing an antenna on a roof. He fell 30-40 feet to the pavement and died. Measuring & Controlling Devices, NEC 1 Other Fall (From Elevation) Other Abstract 2009 Employee Is Killed in Fall From Unguarded Roof Frm 00461 Year Brief Description of Accident Fmt 4701 Sfmt 4725 2010742911 312679921 E:\FR\FM\18NOR7.SGM 201638780 I 313477267 18NOR7 2005148911 313731770 200925287 I 313390163 4841 7349 3829 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 23:45 Nov 17, 2016 Fatal Accidents on Walking-Working Surfaces Preventable by the Final Standards, continued (2006-2010 OSHA IMIS) 82953 ER18NO16.323</GPH> srobinson on DSK5SPTVN1PROD with RULES6 82954 VerDate Sep<11>2014 Jkt 241001 Accident Summary Number I Accident Inspection Number PO 00000 2017811681 109332866 SIC: Description Number of Fatalities Source of Injury Event Type Environmental Factor At approximately 5:00 p.m. on March 13, 2009, Employee #1 was working alone removing old paint using a water blast machine on a flat roof of a building, when he fell approximately 35 ft from the edge of the roof. Employee #1 was taken to the hospital, where he later died from his injuries. 5999: Misc. Retail Stores, NEC 1 Other Fall (From Elevation) Other Employee Dies After Fall From Roof On February 10, 2009, Employee #1 was an inspector for a company that performed special inspections. He was on the roof of a four story residential building being constructed. The roof had a 5:12 pitch. He was expecting the nail pattern for the roof sheathing and was walking along the ridge. He lost his footing, slid down the roof, and fell approximately 40 to 45 ft to the ground. Employee #1 died at the hospital. He had not been wearing a harness with a secured lanyard nor was he otherwise protected from fall hazards while performing this job. 8711: Engineering Services 1 Buildings I Structures Fall (From Elevation) Work-SurfaceiFacil.Layout Cond. 2010 Employee Is Killed in Fall From Roof On September 23, 2010, Employee #1 was located on the roof of a three-story building to remove a tree limb that was too close to the roof, causing damage. As Employee #1 cut the limb with a hand saw, it broke prematurely due to the weight on the cut. Employee #1 was knocked from the roof, landing on the lower level of the building, and was killed. The accident investigation revealed that Employee #1 was not wearing any type of fall arrest equipment at the time of the incident. 6513: Apartment Building Operators 1 Hand Tool (Manual) Fall (From Elevation) Work-Surface/Facil.Layout Cond. 2010 Worker Is Killed After Falling From Roof On April18, 2010, Employee #1, of [a restaurant], was conducting maintenance work on an air conditioning unit. While working on air conditioning unit, Employee #1 fell from roof and died. No other information was provided. 5812: Eating Places 1 Ladder Fall (From Elevation) Other Abstract 2009 Employee Falls From Roof, Later Dies Frm 00462 Year Brief Description of Accident Fmt 4701 Sfmt 4725 200925600 I 312945629 E:\FR\FM\18NOR7.SGM 3141909431 314190943 2009 18NOR7 2025609421 314424573 ER18NO16.324</GPH> Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 23:45 Nov 17, 2016 Fatal Accidents on Walking-Working Surfaces Preventable by the Final Standards, continued (2006-2010 OSHA IMIS) srobinson on DSK5SPTVN1PROD with RULES6 VerDate Sep<11>2014 Fatal Accidents on Walking-Working Surfaces Preventable by the Final Standards, continued (2006-2010 OSHA IMIS) Jkt 241001 202080438 I 314309139 PO 00000 Frm 00463 2017203981 313453821 Year Brief Description of Accident Abstract 2010 Employee Dies After Fall From Roof On February 23, 2010, Employee #1 was inspecting a roof, when he fell approximately 23 feet to the ground. He died from his injuries on March 10, 2010. 2010 Employee Is Killed in Fall From Metal Roof On January 27, 2010, Employee #1 was working on approximately 30-ft high metal roof. The aluminum metal sheet was deteriorated and broke under his weight. Employee #1 fell to the ground and was taken to the hospital. Employee #1 died later that day. He was not using a fall arrest system. E:\FR\FM\18NOR7.SGM Source of Injury Event Type Environmental Factor 1 Other Fall (From Elevation) Other 5093: Scrap and Waste Materials 1 Working Surface Fall (From Elevation) Work-SurfaceiFacil.Layout Cond. 3448: Prefabricate d Metal Buildings 1 Working Surface Fall (From Elevation) Work-SurfaceiFacil.Layout Cond. 1 Buildings I Structures Fall (From Elevation) Work-Surface/Facil.Layout Cond. SIC: Description 6411 Insurance Agents, Brokers, & Service Fall Through Skylight Fmt 4701 Sfmt 4725 Number of Fatalities 200623890 I 310305727 2013309251 310189584 2006 Worker Is Killed in Fall Through Skylight On August 7, 2006, Employee #1 was working for a firm that made fabricated structural metal products. Along with two coworkers, he was on a roof conducting maintenance work. While walking on the roof back to an aerial lift, he fell through a skylight. He sustained a head injury, and he was killed. 2006 Employee Is Killed in Fall Through Skylight Employee #1 was working on the roof of a structure, when he fell through a skylight. He was killed. 6513 Apartment Building Operators 18NOR7 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 23:45 Nov 17, 2016 Accident Summary Number I Accident Inspection Number 82955 ER18NO16.325</GPH> srobinson on DSK5SPTVN1PROD with RULES6 Accident Summary Number I Accident Inspection Number Jkt 241001 PO 00000 200901841/ 307411108 Brief Description of Accident Abstract 2006 Employee Is Killed in Fall From Skylight Opening On July 11, 2006, Employee #1 was instructed by his supervisor to caulk the edges of a skylight on the facility's metal roof to prevent water from leaking down onto the working surface of the roof set department. Once Employee #1 completed the job, he asked his supervisor come back up to the roof and look at the finished project. As the supervisor Employee #1 approached the repaired skylight, Employee #1 stepped onto the skylight with his left foot. Employee #1 fell through the skylight and the skylight opening onto the concrete floor below. Employee was fatally injured as a result of the accident. 2006 Employee Is Killed in Fall Through Skylight At approximately 5:19p.m. on July 5, 2006, Employee #1 was cleaning a roof. He fell through the skylight and was killed. 2006 Employee Is Killed in Fall Through Apartment Roof Skylight On June 22, 2006, Employee #1 and a coworker were working as maintenance employees. They were changing a condenser unit on the roof of an apartment building. Employee #1 was transporting the replacement unit on a hand truck, when he tripped and fell through a skylight. He fell approximately twenty-five feet, and he was killed. 2006 Mechanic Is Killed in Fall Through Skylight On May 2, 2006, Employee #1 was performing maintenance on a roof-top air conditioning unit. He fell through a skylight and was killed. 2006 Employee Is Killed in Fall Through Skylight Employee #1 and a coworker were cleaning out gutters from the roof of a warehouse. Employee #1 fell approximately 18 feet through a fiberglass skylight to the concrete floor. Employee #1 was killed. Year Frm 00464 Fmt 4701 201992492/ 310281589 Sfmt 4725 E:\FR\FM\18NOR7.SGM 201320843/ 309858801 200530665/ 308265891 18NOR7 200373942/ 309796928 SIC: Description Number of Fatalities Source of Injury Event Type Environmental Factor 1 Working Surface Fall (From Elevation) Other 1 Bodily Motion Fall (From Elevation) Work-Surface/Facil.Layout Cond. 1 Buildings I Structures Fall (From Elevation) Materials Handlg Equip./Method 1 Other Fall (From Elevation) Other 1 Other Fall (From Elevation) Other 2452 Prefabncated Wood Buildings 4225 General Warehousing and Storage 6513: Apartment Building Operators 7623 Refrigeration Service and Repair 5211 Lumber and Other Building Materials Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 23:45 Nov 17, 2016 ER18NO16.326</GPH> 82956 VerDate Sep<11>2014 Fatal Accidents on Walking-Working Surfaces Preventable by the Final Standards, continued (2006-2010 OSHA IMIS) srobinson on DSK5SPTVN1PROD with RULES6 VerDate Sep<11>2014 Fatal Accidents on Walking-Working Surfaces Preventable by the Final Standards, continued (2006-2010 OSHA IMIS) Jkt 241001 2005146021 311662720 PO 00000 Frm 00465 2024721141 311332241 SIC: Description Number of Fatalities Source of Injury Event Type Environmental Factor On December 5, 2007, Employee #1 was clearing ice on top of a roof and fell through skylight and died. 7349 Building Maintenance Services, NEC 1 Other Fall (From Elevation) Work-SurfaceiFacil.Layout Cond. Employee Dies in Fall Through Skylight Employee #1 and a coworker were reroofing a metal roof on an existing warehouse, approximately 40 feet from the ground. The roof had fiberglass skylights, which had begun to leak and were being covered over by the new roof. They had covered approximately onehalf of the 10-ft by 12-ft skylight, when Employee #1 fell through the skylight. Employee #1 sustained severe internal injuries from the 40foot fall and died later in the day at the hospital. 3441: Fabricated Structural Metal 1 Buildings I Structures Fall (From Elevation) Work-SurfaceiFacil.Layout Cond. Employee Killed By Fall Through Roof Skylight On June 29, 2007, at approximately 12:30 p.m., Employee #1 was killed as a result of a 30-foot fall through a skylight on the roof. Employee #1 was paired with another worker painting HVAC units on the roof as part of the company's yearly maintenance program. The employer did not provide fall protection barrier guards around the skylight, or personal fall protection for the employees working adjacent to the skylight. The weather conditions were hot, and the employees were taking a break near the skylight. An eyewitness stated that Employee #1 sat on the edge of the skylight and fell through it to the ground. Employee #1 was attended on the ground by plant employees until Emergency Medical help arrived. Employee #1 was transported to ... [the h]ospital ... where he died. 3411: Metal Cans 1 Buildings I Structures Fall (From Elevation) Other Year Brief Description of Accident Abstract 2007 Employee Is Killed in Fall Through Skylight 2007 Fmt 4701 Sfmt 4725 E:\FR\FM\18NOR7.SGM 2012622191 311120968 2007 18NOR7 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 23:45 Nov 17, 2016 Accident Summary Number I Accident Inspection Number 82957 ER18NO16.327</GPH> srobinson on DSK5SPTVN1PROD with RULES6 Accident Summary Number I Accident Inspection Number Year SIC: Description Number of Fatalities Source of Injury Event Type Environmental Factor Employee Is Injured in Fall Through Skylight, Later Dies On June 15, 2007, an employee, a general laborer, was on the roof of the building, alone, and engaged in cleaning a skylight with a broom. The broom broke, and he lost his balance, falling through the unguarded skylight. The employee fell over 15 feet to the concrete floor below. The employee was not wearing any personal fall protection gear such as a harness, lanyard, etc. No rneans of fall protection was used at the jobsite at the time of the incident. The employee's supervisor was not onsite, but was aware of the task that the employee was performing. The employer did not establish safe procedures for employees to follow when cleaning skylights, such as the use of personal fall protection devices and/or guardrails. A coworker was working inside the building, and took the employee to . . . [the h)ospital. The employee sustained internal injuries and was treated and released from the hospital after five days. The employee died eight days after the incident. 6531: Real Estate Agents and Managers 1 Other Fall (From Elevation) Other Employee Is Killed in Fall Through Skylight On February 15, 2007, an employee, a second shift foreman fell through a skylight, while traversing across the snow covered roof of the foundry while en route to the sand bin house. As he approached the northwest corner of the roof, he stepped on the corner of the snow covered sky light. He apparently lost his balance and fell onto the dome shaped plastic cover. The cover broke under his weight causing him to fall approximately 30 feet to the concrete floor of the foundry. Several coworkers immediately ran to his aid and called the emergency medical services. He was made comfortable until the paramedics arrived, who attempted cardia pulmonary resuscitation. The employee was non-responsive and was transported to the ... hospital ... where he was pronounced dead . 3321: Gray and Ductile Iron Foundries 1 Working Surface Fall (From Elevation) Work-SurfaceiFacil.Layout Cond. Brief Description of Accident Abstract Jkt 241001 PO 00000 Frm 00466 202473849 I 307185066 2007 Fmt 4701 Sfmt 4725 E:\FR\FM\18NOR7.SGM 201371119 I 310226568 2007 18NOR7 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 23:45 Nov 17, 2016 ER18NO16.328</GPH> 82958 VerDate Sep<11>2014 Fatal Accidents on Walking-Working Surfaces Preventable by the Final Standards, continued (2006-2010 OSHA IMIS) srobinson on DSK5SPTVN1PROD with RULES6 VerDate Sep<11>2014 Fatal Accidents on Walking-Working Surfaces Preventable by the Final Standards, continued (2006-2010 OSHA IMIS) Jkt 241001 PO 00000 Frm 00467 Year Brief Description of Accident Abstract 2008 Employee Is Killed in Fall On October 23, 2008, Employee #1 fell through a skylight to a concrete floor and was killed. Employee Is Killed in Fall From Roof On September 14, 2008, Employee #1, a trailer mechanic . and other trailer mechanics were instructed to seal portions of the roof from the leaks. The trailer mechanics were instructed to do this job twice a year. Employee #1 was working at the Northeast corner of the roof. While sealing the roof, he fell through a skylight 18 ft to the ground. Employee #1 was killed. None of the working trailer mechanics was wearing fall protection. Employee Falls Through Skylight, Later Dies On September 9, 2008, Employee #1 was installing corrugated sheet metal decking on top of the existing metal decking on the roof of a 32ft. high industrial building. There were several skylights on the roof covered by translucent green plastic sheets, approximately 16 ft. by 3 ft. The plastic covering for the skylights also needed replacing. Employee #1 was replacing one of the skylight covers. He removed the old cover and had not yet installed the new cover when he fell through the opening to the trash processing area. He struck a metal hopper, approximately 20 ft below, and then fell another 10 ft to the floor. Employee #1 suffered multiple skeletal and visceral injuries and died later at the hospital. E:\FR\FM\18NOR7.SGM Source of Injury Event Type Environmental Factor 1 Other Fall (From Elevation) Other 7539: Automotive Repair Shops, NEC 1 Buildings I Structures Fall (From Elevation) Other 4212: Local Trucking Without Storage 1 Other Fall (From Elevation) Other SIC: Description 5734 202367744/ 312566276 200033264/ 311376826 2008 Fmt 4701 Sfmt 4725 Number of Fatalities 202549366/ 309303055 2008 Computer and Software Stores 18NOR7 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 23:45 Nov 17, 2016 Accident Summary Number I Accident Inspection Number 82959 ER18NO16.329</GPH> srobinson on DSK5SPTVN1PROD with RULES6 Accident Summary Number I Accident Inspection Number Year Abstract Employee Is Killed in Fall Through Skylight On January 7, 2008, Employee #1, a journeyman lineman, was working as part of a tour-man crew to replace a burned-out, polemounted transformer. The pole was inaccessible by truck because of its proximity to an industrial strip center on its south side and a drainage ditch, with a slope of approximately 12 degrees, on its north side. The pole was located approximately 253 feet east of a hardsurface parking lot. The crew determined that they would replace the transformer manually, using a jib, blocks, and generator-powered electric cathead. The crew had difficulty lowering the old transformer to the ground because the industrial strip center, located 66 inches south of the pole, prevented a good angle on the tag lines. However, they did successfully remove the old transformer. Because of the difficulty they had experienced in removing the old transformer, the crew decided that they would raise the new transformer to the level of the roof and then throw the tag lines onto the roof. The crew thought this would result in a better tag line angle, which would allow them to pull the transformer away from the pole and facilitate positioning and bolting it into place. The cathead was used to raise the transformer to the level of the roof, and Employee #1 threw his tag line onto the roof. Employee #1 and a helper then walked over to a ladder, which was erected approximately 240 feet west of the pole. They climbed the ladder and walked east across the 1 to 12 pitch metal roof of the industrial strip center building. The helper walked east along the edge of the building, while Employee #1 walked southeast, approximately 50 feet. Employee #1 stepped onto a fiberglass skylight and fell approximately 17 feet to the concrete floor of the shop. Employee #1 was killed and declared dead at the scene. Jkt 241001 Brief Description of Accident PO 00000 Frm 00468 Fmt 4701 Sfmt 4725 201763059 I 311661094 2008 SIC: Description Number of Fatalities Source of Injury Event Type Environmental Factor 4911: Electric Services 1 Working Surface Fall (From Elevation) Work-Surface/Facil.Layout Cond. E:\FR\FM\18NOR7.SGM 18NOR7 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 23:45 Nov 17, 2016 ER18NO16.330</GPH> 82960 VerDate Sep<11>2014 Fatal Accidents on Walking-Working Surfaces Preventable by the Final Standards, continued (2006-2010 OSHA IMIS) srobinson on DSK5SPTVN1PROD with RULES6 VerDate Sep<11>2014 Fatal Accidents on Walking-Working Surfaces Preventable by the Final Standards, continued (2006-2010 OSHA IMIS) Jkt 241001 202529566 I 309915676 Abstract 2009 Employee Is Killed in Fall Through Unguarded Skylight At approximately 3:30p.m. on July 22, 2009, Employee #1 and his supervisor were on a roof to remove bees from an air conditioning unit. The bees chased Employee #1 , and he fell through an unguarded skylight located partway between the hatch and the air conditioner. He fell 25 ft striking a concrete floor and died. Employee Is Killed in Fall Through Skylight At approximately 12:20 p.m. on December 22, 2010, Employee #1 was working at a facility of a firm that manufactured rubber and plastic hoses and belts. Employee #1 had been employed at the facility since August 10, 2010, and he had been with the corporation since July 1, 1984. Employee #1 was on the roof to investigate the origin of a water leak fi'om a chiller. The employer had three other employees who went up onto the roof on a regular basis to check equipment and conduct other inspection checks. Employee #1 was a plant manager and would not normally have gone up to the roof to view the leaking chiller. The supervisor of maintenance, however, wanted to show Employee #1 where the leak was coming from and how they were going to fix it. The supervisor of maintenance stated that he did not see if Employee #1 slipped. He did see Employee #1 lose his balance while near the skylight and fall through. The supervisor of maintenance was the only one accompanying Employee #1 while he was on the roof. Employee #1 fell through a skylight made of an acrylic plastic dome. It was not equipped with a skylight guard or standard railing on all four sides. He fell 23 feet. Employee #1 was rushed to the hospital, but he was pronounced dead at approximately 3:00 p.m. According to the medical examiner's report, Employee #1 sustained multiple ... traumatic injuries resulting from the fall . PO 00000 Year Brief Description of Accident Frm 00469 Fmt 4701 Sfmt 4725 201262862 I 315148437 2010 SIC: Description E:\FR\FM\18NOR7.SGM Number of Fatalities Source of Injury Event Type Environmental Factor 1 Buildings I Structures Fall (From Elevation) Work-SurfaceiFacil.Layout Cond. 1 Buildings I Structures Fall (From Elevation) Work-SurfaceiFacil.Layout Cond. 5531 Auto and Home Supply Stores 3052: Rubber and Plastics Hose and Belting 18NOR7 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 23:45 Nov 17, 2016 Accident Summary Number I Accident Inspection Number 82961 ER18NO16.331</GPH> srobinson on DSK5SPTVN1PROD with RULES6 Accident Summary Number I Accident Inspection Number Jkt 241001 202625380 I 314956145 PO 00000 Frm 00470 2007850041 314178146 Fmt 4701 2006446981 313691917 Abstract 2010 Employee Falls Through Skylight and Later Dies From Injuries On September 11, 2010, Employee #1, a machinery maintenance worker, fell through the skylight, falling 17 feet to a concrete floor. Employee #1 was treated and transported by . . . [the ~ire [d]epartment to the ... hospital. Employee #1 expired on September 27, 2010 at 3:10p.m. as a result of the injuries received from the fall. 2010 Employee Fails Through Skylight and Is Killed On July 31, 2010, Employee #1 was repairing roof structure leaks. He was removing metal roofing screws, applying silicone, and reinstalling metal roofing screws to the roof structure. The employee walked onto an unguarded existing skylight and fell approximately 22 ft. Employee #1 was killed as a result of the blunt force injury li"om the fall. 5712: Furniture Stores 2010 Employee Is Killed in Fall Through Skylight On May 15, 2010, Employee #1 was repairing a roof and fell through a skylight. He fell 22 feet to the concrete and was killed. Manufacturing Industries. Sfmt 4725 Year Brief Description of Accident SIC: Description E:\FR\FM\18NOR7.SGM Number of Fatalities Source of Injury Event Type Environmental Factor 1 Buildings I Structures Fall (From Elevation) Other 1 Working Surface Fall (From Elevation) Work-SurfaceiFacil.Layout Cond. 1 Working Surface Fall (From Elevation) 1 Drugs I Alcohol Ingestion 2068 Salted and Roasted Nuls and Seeds 3999 Work-SurfaceiFacilLayout Cond NEC Fall From Surface Due to Slip or Trip 201488541 I 125761775 2006 Employee Dies From Accidental Overdose 18NOR7 On March 8, 2006, Employee #1 was found unconscious, lying on the floor in the toilet room of the store. There were no witnesses to the accident, but there was evidence that Employee #1 had slipped on a liquid, fell and struck his head. He was treated at ... [the m]edical [c]enter for a head injury, cervical strain, and thoracic strain. No permanent disability was anticipated. Employee #1 was prescribed medication for pain. He died in his sleep at approximately 4:45p.m. the next day, li"om an accidental overdose of the prescribed medication. 5813: Drinking Places Other Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 23:45 Nov 17, 2016 ER18NO16.332</GPH> 82962 VerDate Sep<11>2014 Fatal Accidents on Walking-Working Surfaces Preventable by the Final Standards, continued (2006-2010 OSHA IMIS) srobinson on DSK5SPTVN1PROD with RULES6 VerDate Sep<11>2014 Fatal Accidents on Walking-Working Surfaces Preventable by the Final Standards, continued (2006-2010 OSHA IMIS) Jkt 241001 201859147 I 310576269 SIC: Description Number of Fatalities Source of Injury Event Type Environmental Factor At approximately 4:00p.m. on January 30, 2007, a worker was placing a chain in front of the bay entrance to prevent customer usage. Because of cold inclement weather, he slipped and fell on the ice, hitting his head. The employee first went to a chiropractor, who recommended that the worker go to a hospital emergency room. The worker went to [the h)ospital, where he later died from a concussion. 7542: Carwashes 1 Working Surface Fall (Same Level) Weather, Earthquake, Etc. Employee Slipped and Fell on Concrete, Later Dies At approximately 1:30 p.m. on September 22, 2008, Employee #1, a teacher at a public middle school, told her classroom aide that she was going to the restroom. Employee #1 was walking to the restroom when she apparently fell on a broken concrete walkway. Shortly thereafter, a campus security guard found Employee #1 laying on her left side on the broken concrete walkway. Employee #1 was transported to the hospital where she died on September 25, 2008, of unspecified causes. 8211: Elementary and Secondary Schools 1 Working Surface Fall (Same Level) Work-Surface/Facil.Layout Cond. 2008 Employee Falls and Strikes Head, Later Dies On February 27, 2008, Employee #1 was walking from one corner of the maintenance shop office towards the entrance door of the shop, approximately 10 fl away. As he walked, he stepped over a battery charging unit, automatic battery charger, Part Number 395101, Model Number 12050. An electrical cord connecting the battery charger to an electrical outlet and a cord connecting the battery charger to the floor scrubber were in place. His foot caught the cords, and he fell onto the tile floor. Employee #1 did not break his fall with his hands and struck his head and face on the floor. He was hospitalized and later died. 8211: Elementary and Secondary Schools 1 Other Fall (Same Level) Other 2009 Employee Slips and Strikes Head, Later Dies At approximately 4:15p.m. on July [25], [2009), Employee #1 was walking through the kitchen in a restaurant, slipped and fell on a slick floor. She struck the back of her head, was hospitalized, and died the next day. 5812: Eating Places 1 Working Surface Fall (Same Level) Work-SurfaceiFacilLayout Cond Abstract 2007 Worker Suffers Concussion in Fall on Ice and Later Dies PO 00000 Year Brief Description of Accident Frm 00471 Fmt 4701 2024548801 310493713 2008 Sfmt 4725 E:\FR\FM\18NOR7.SGM 201149689 I 309300846 18NOR7 2019558041 313588337 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 23:45 Nov 17, 2016 Accident Summary Number I Accident Inspection Number 82963 ER18NO16.333</GPH> srobinson on DSK5SPTVN1PROD with RULES6 Accident Summary Number I Accident Inspection Number Jkt 241001 200033769 I 315154005 SIC: Description Number of Fatalities Source of Injury Event Type 2010 Employee Is Killed in Fall on Platform On December 16, 2010, Employee #1 was working on an exterior loading platform for tankers. He was assigned to separate cooking grease and water that was stored in a silo. While using the grease loading arm and related piping to fill an empty tanker truck with grease, Employee #1 apparently slipped, struck his head on the platform, and was killed. There were no witnesses to the accident. 2013: Sausages and Other Prepared Meats 1 Buildings I Structures Fall (Same Level) 2010 Employee Slips and Falls on Wet Surface, Is Killed Employee #1, an employee of a transportation company, slipped and fell on a wet slippery floor in the receiving bay of a milk-producing facility. Employee #1 hit his head on the concrete floor and sustained an acute subdural hematoma brain injury. Employee #1 was killed. 4221 Farm Product VV arehousi ng and Storage 1 Other Fall (Same Level) Work-SurfaceiFacilLayout Cond Employee Fractures Ankle in Fall, Later Dies of Blood Clot Employee #1 slipped on a wet floor and fell at a restaurant. Prior to the incident another employee had been asked to clean up the water station at the restaurant. The station cart was moved so the corner of the carpet could be flipped up to sweep under it. A little bit of water was swept into the main aisle after which the carpet was put back in place along with the cart. The employee then continued sweeping until she heard Employee #1 fall. Employee #1 fractured her left ankle. Employee #1 died two days later from a blood clot. 5812: Eating Places 1 Water Fall (Same Level) Work-SurfaceiFacilLayoutCond Year PO 00000 Frm 00472 202519856 I 312577059 Fmt 4701 Sfmt 4725 E:\FR\FM\18NOR7.SGM 200651693 I 312555451 2010 Brief Description of Accident Abstract Fall From Scaffold Environmental Factor Work-SurfaceiFacilLayoutCond 18NOR7 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 23:45 Nov 17, 2016 ER18NO16.334</GPH> 82964 VerDate Sep<11>2014 Fatal Accidents on Walking-Working Surfaces Preventable by the Final Standards, continued (2006-2010 OSHA IMIS) srobinson on DSK5SPTVN1PROD with RULES6 VerDate Sep<11>2014 Fatal Accidents on Walking-Working Surfaces Preventable by the Final Standards, continued (2006-2010 OSHA IMIS) Jkt 241001 PO 00000 202464509/ 310195946 Year 2006 Abstract Employee Dies After Fall From Scaffold On November 16, 2006, Employee #1 was an inmate, applying drywall compound to walls of the [c]onference [r]oom. He was using a rolling scaffold, with one plank at the 4-ft level. The scaffold rolled when he stepped down, causing him to lose his belance. As he fell, his foot became caught in the top bar of the scaffold, which caused him to flip over backwards and strike the back of his head on the ftoor. Employee #1 was treated in the [e]mergency [r]oom for a blunt force head trauma injury to the back of the head, and lacerations to his hand, left elbow, and nose. He was hospitalized [later] had craniotomy surgery and evacuation of a hematoma. After surgery, he remained comatose and breathing with a ventilator, until his death on November 27, 2006 Employee Falls From Outrigger Scaffold and Dies At approximately 9:30a.m. on October 9, 2006, Employee #1, a window washer, was working on an existing building and was using a rolling counter -weighted portable outrigger beam scaffold with Sky Genie descent device attached to the seat board. The outrigger beam scaffold was not adequately counter-weighted, and was not tied back. In addition, a coworker moved the scaffold horizontally while Employee #1 occupied it. The coworker moving the scaffold was adjacent to the unprotected roof edge and was not wearing fall protection. As the scaffold was moved to the elevated roof position and Employee #1 descended down to the next row of windows, the two sections of the outrigger beam separated due to the lack of a safety retaining pin. Employee #1, on the seat board, was also not attached to a life line, the locking devices in use were not self-closing and self-locking, and the available lanyard was not positive-locking. The outrigger beam separated from the roof and both the scaffold and Employee #1 fell approximately 20 ft to the ground. Employee #1 sustained unspecified fractures and died on November 11, 2006, from complications following his injuries. Frm 00473 Brief Description of Accident Fmt 4701 Sfmt 4725 E:\FR\FM\18NOR7.SGM 201954864 I 310384003 2006 SIC: Description Number of Fatalities Source of Injury Event Type Environmental Factor 1 Bodily Motion Fall (From Elevation) Other 1 Machine Fall (From Elevation) Work-Surface/Facil.Layout Cond. 9223 Correctional Institutions 7349 Building Maintenance Services, NEC 18NOR7 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 23:45 Nov 17, 2016 Accident Summary Number I Accident Inspection Number 82965 ER18NO16.335</GPH> srobinson on DSK5SPTVN1PROD with RULES6 Accident Summary Number I Accident Inspection Number Jkt 241001 PO 00000 200980670 I 307815050 Year 2006 SIC: Description Number of Fatalities Source of Injury Event Type Environmental Factor Employee Is Killed in Fall From Scaffold On February 14, 2006, Employee #1 was working from scaffolding that was approximately 30-feet taiL The scaffolding was directly above a drilling rig cellar that was about 10-feet deep. While Employee #1, thought to be collecting tools, was on the scaffold, he fell into the cellar, killing him. Employee #1 's hard hat was found on the scaffolding directly above the cellar, with Employee #1 below. The accident investigation revealed that Employee #1 was not wearing fall protection, and the injuries found on his body were consistent with a fall from a scaffold. There were no witnesses. 1381: Drilling Oil and Gas Wells 1 Other Fall (From Elevation) Work-Surface/FaciLLayout Cond. One Employee Is Killed, One Is Injured in Fall From Scaffold On December 7, 2007, Employees #1 and #2 were preparing to do window washing from the roof of a 46-story building. A two-point suspended scaffold platform detached from the building's permanent window washing rig that was anchored to the roof. It slid out into position to go down, when the cables slipped from their attachment points. Employees #1 and #2 fell with the scaffold to the ground. Employees #1 was pronounced dead on the scene and Employee #2 was transported in critical condition to Cornell hospitaL Employees #1 and #2 did not put on their safety harnesses or install their life lines. The life lines and harnesses, and a bucket of hot water and soap were found on the roof next to the scaffold rig. Two new cables were installed just 30 days earlier, and this was the first time the scaffold was being used after the cable installation. 7349 Building Maintenance Services, NEC 1 Buildings I Structures Fall (From Elevation) Work-SurfaceiFacil.Layout Cond. Brief Description of Accident Abstract Frm 00474 Fmt 4701 Sfmt 4725 2023419051 311442859 2007 E:\FR\FM\18NOR7.SGM 18NOR7 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 23:45 Nov 17, 2016 ER18NO16.336</GPH> 82966 VerDate Sep<11>2014 Fatal Accidents on Walking-Working Surfaces Preventable by the Final Standards, continued (2006-2010 OSHA IMIS) srobinson on DSK5SPTVN1PROD with RULES6 VerDate Sep<11>2014 Fatal Accidents on Walking-Working Surfaces Preventable by the Final Standards, continued (2006-2010 OSHA IMIS) Brief Description of Accident Abstract Employee Is Killed in Fall From Boatswain Chair On June 15, 2007, an employee was making sure that a coworker, a new trainee, was geared up properly and that all of his equipment was properly secured. Both men were in the process of cleaning the windows of a seven story resort building. They were using a boatswain chair as the chosen form of scaffolding. As the coworker was getting ready to access his chair, the employee told him to wait and watch him to see the safest and most effective way to gain access to the chair and begin the descent down the building. The employee apparently did not check his own gear before accessing the chair. When he climbed over the parapet wall, he fell to the ground. The coworker called the emergency medical services as he went down stairs to see how the employee was doing. Once there, the coworker began cardio-pulmonary resuscitation until the help arrived. The employee was killed. Building Maintenance Services, 2007 Employee Falls Off Scaffold, Later Dies On June 12, 2007, Employee #1 was working on a scaffold, taking measurements, at a height of 15 feet He fell to the concrete slab below and later died from his injuries. 5051: Metals Service Centers and Offices 2007 Employee Dies After Fall in Church Sanctuary On January 6, 2007, Employee #1 was using a scaffold or a ladder to reach the 25-ft high ceiling in a church sanctuary. He was either replacing ceiling tiles or repairing a light fixture. He received unspecified injuries when he felL He was hospitalized and died on January 14, 2007. Building Maintenance Services, Year Jkt 241001 PO 00000 2024721061 311106298 2007 Frm 00475 Fmt 4701 Sfmt 4725 E:\FR\FM\18NOR7.SGM 200643831 I 310999206 200624237 I 310711106 SIC: Description Number of Fatalities Source of Injury Event Type Environmental Factor 1 Bodily Motion Fall (From Elevation) Other 1 Working Surface Fall (From Elevation) Work-SurfaceiFacil.Layout Cond. 1 Working Surface Fall (From Elevation) Other 7349 NEC 7349 18NOR7 NEC Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 23:45 Nov 17, 2016 Accident Summary Number I Accident Inspection Number 82967 ER18NO16.337</GPH> srobinson on DSK5SPTVN1PROD with RULES6 Accident Summary Number I Accident Inspection Number Jkt 241001 200643708 I 309790806 Number of Fatalities Source of Injury Event Type Environmental Factor 9711: National Security 1 Bodily Motion Fall (From Elevation) Work-Surface/Facil.Layout Cond. On October 14, 2008, an employee was applying stucco to the front of a single family house while working on a 20-ft scaffold. He fell backwards off the scaffold striking his head on a concrete driveway. He suffered a concussion and was killed. 3471: Plating and Polishing 1 Other CardVasc.!Resp. Fail. Other 2010 Employee Dies Falling From High Scaffold Employee #1 and two coworkers were on a 25-ft scaffold, setting it up in order to perform maintenance on an aircraft. The center of the work platform was equipped with sliding floor panels, which allowed the sections of floor to open up around the tail of the aircraft. On top of the floor panels was a rolling platform the maintenance workers would stand on, while servicing the aircraft. Employee #1 and a coworker, pushed the rolling platform toward the tail of the aircraft, to put it into position, and discovered that six of the sliding floor panels directly below were open instead of closed. Subsequently, Employee #1 fell through the opening in the floor of the platform as he pushed the rolling platform forward, landing on the concrete ground below. Employee #1 passed away as a result of injuries suffered. 4581: Airports, Flying Fields, & Services 1 Working Surface Fall (From Elevation) Work-Surface/Facil.Layout Cond. 2006 Employee Is Killed in Fall From Work Platform On December 13, 2006, Employee #1 was working from the work platform of a stair ladder (platform ladder) that was approximately 14.9 feet from a concrete floor. While he was working, Employee #1 fell down the steps of the platform ladder and was killed. 1 Ladder Fall (From Elevation) Other Abstract 2007 Employee Slips and Falls From Work Platform and Is Killed Employee #1 was working on an airplane from a work platform approximately 7 ft above the ground when he apparentiy slipped and fell to the ground fatally striking his head. The platform had a guardrail on only three sides and the ladder side was open with no means of fall prevention. Employee #1 was killed. 2008 Worker Falls Off A Scaffold and Is Killed PO 00000 Year Brief Description of Accident Frm 00476 201311925 I 311916837 Fmt 4701 Sfmt 4725 E:\FR\FM\18NOR7.SGM 200074391 I 314619925 18NOR7 2018591621 310565171 SIC: Description 5211 Lumber and Other Building Matenals Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 23:45 Nov 17, 2016 ER18NO16.338</GPH> 82968 VerDate Sep<11>2014 Fatal Accidents on Walking-Working Surfaces Preventable by the Final Standards, continued (2006-2010 OSHA IMIS) srobinson on DSK5SPTVN1PROD with RULES6 VerDate Sep<11>2014 Fatal Accidents on Walking-Working Surfaces Preventable by the Final Standards, continued (2006-2010 OSHA IMIS) Year Jkt 241001 PO 00000 201762903 I 311046049 2007 SIC: Description Number of Fatalities Source of Injury Event Type Environmental Factor Employee Is Killed in Fall From Scaffolding On May 26, 2007, Employee #1 and several other employees were scheduled to sandblast and paint the inside of a petrochemical tank that was approximately 45 feet in diameter and approximately 60 feet in height. The tank had a floating roof, which was lowered to allow installation of the scaffolding from which the men would work. Employee #1 attempted to lower himself from the scaffold using the ladder installed on the ends of the scaffolding. One witness said that the ladder broke as Employee #1 was descending and he fell approximately 20 feet to the floating roof. Attempts were made by the other employees present to render CPR, but they failed to revive Employee #1 He was pronounced dead at the scene a short time later. (Note: Employee fell from ladder, not scaffold.) 2911: Petroleum Refining 1 Ladder Fall (From Elevation) Other Employee Dies After Fall From Scaffold At approximately 7:00a.m. on October 8, 2010, Employee #1 was a foreman and was climbing a scaffold ladder on the south side of the exterior of the building. He was climbing to the work area on a scaffold platform at a higher level. Employee #1 was approximately 27 ft above the lower landing when a coworker heard a loud noise that was not described. The coworker called out to Employee #1 but he did not respond. Coworkers then observed Employee #1 release his grip on the ladder. Employee #1 was injured when he fell approximately 41 ft to the ground. Employee #1 died from an illness or injury that was not specified. 9999: Non classifiable Establishments 1 Bodily Motion Faii(From Elevation) Other 8211 Elementary and Secondary Schools 1 Working Surface Fall (From Elevation) Work-Surface/Facil.Layout Cond. Brief Description of Accident Abstract Frm 00477 Fmt 4701 Sfmt 4725 E:\FR\FM\18NOR7.SGM 200556223/ 314767468 2010 Fall From Stairs/Stairway/Steps 18NOR7 202004685/ 308991082 2006 Employee Falls Down Stairway and Is Killed Employee #1, a high school teacher, ... slipped, tripped, or otherwise fell down a thirteen-step stairway and was killed. The stairway width was no greater than 44 in., but the enclosed wall side of the stairway did not have a handrail. Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 23:45 Nov 17, 2016 Accident Summary Number I Accident Inspection Number 82969 ER18NO16.339</GPH> srobinson on DSK5SPTVN1PROD with RULES6 Accident Summary Number I Accident Inspection Number Jkt 241001 201992948 I 311240899 Abstract 2007 Employee Fails, Strikes Head and Dies On June 27, 2007, Employee #1 was walking down a stairway and tripped. He struck his head on a fixed ladder at the bottom of the stairs, and died several days later. (ORA Note: Did not fall from a ladder, slipped/tripped on stairway.) PO 00000 2023421841 312497647 2008 Employee Is Killed in Fall While Window Washing At approximately 4:30p.m. on August 26, 2008, an employee, a selfemployed window washer was performing his quarterly cleaning of the double hung windows of a co-op unit owner. He was using a positioning belt and fell from the 12 story because the seven inch anchor bolts failed. He was pronounced dead on the scene. It appears that the anchor bolts may have been inadvertently cut during a recent unit window replacement. 2008 Employee Is Killed in Fall While Window Washing On April17, 2008, Employee #1, a window washer, fell40 feet when the anchor point came apart while he was pressure washing the window landings. Employee #1 suffered fatal injuries from the fall. Sfmt 4725 E:\FR\FM\18NOR7.SGM Number of Fatalities Source of Injury Event Type Environmental Factor 7011: Hotels and Motels 1 Working Surface Fall (From Elevation) Work-SurfaceiFacil.Layout Cond. 1 Working Surface Fall (From Elevation) Other 1 Buildings I Structures Fall (From Elevation) Other Window Cleaning Frm 00478 Fmt 4701 SIC: Description Year Brief Description of Accident 2020236441 311897995 7349 Building Maintenance Services, NEG 7349 Chimney Building Maintenance Services, NEG 18NOR7 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 23:45 Nov 17, 2016 ER18NO16.340</GPH> 82970 VerDate Sep<11>2014 Fatal Accidents on Walking-Working Surfaces Preventable by the Final Standards, continued (2006-2010 OSHA IMIS) srobinson on DSK5SPTVN1PROD with RULES6 VerDate Sep<11>2014 Fatal Accidents on Walking-Working Surfaces Preventable by the Final Standards, continued (2006-2010 OSHA IMIS) Year Abstract Employee Is Killed By Fall While Cleaning Chimney On February 20, 2008, Employee #1 was attempting to clean a house chimney. According to the Coroners report, Employee #1 sustained impact injuries to the head and neck. Based on the chimney sweep process and the home owner 1nterv1ew, Employee #1 walked across two sections of the house roof to gain access to the chimney top. Employee #1 was equipped with only one ladder to gain access to the porch roof and primary roof levels, with the final destination being the roof peak A section of aluminum ladder was observed secured to the main roof of the house with hooks that overlapped the peak of the roof. Employee #1 had used a 12-foot section of ladder to access the porch roof from the ground He then had to pull that section up onto the porch roof and set it up to access the ladder on the main roof The section of ladder Employee #1 used to access the porch roof was also lying on the ground along with the cleaning equipment he had used to clean the flu. There were no witnesses to Employee #1 falling. It is not known if Employee #1 was climbing the sect1on of ladder while accessing the main roof from the porch or if he fell while setting the ladder up to access the main roof The minimum height Employee #1 could have fallen would be approximately 15 feet (The ground slopped away from the end of the porch where the employee was found) The metal sloped porch roof was snow covered. Neither a personal fall arrest system nor guard rails were used Employee #1 was working alone which was against company policy, which states that two people are required on these worksites. The home owner even told Employee #1 to come back if it was not safe The cause of death was head and neck 1njunes Jkt 241001 PO 00000 Frm 00479 202498119/ 311734842 2008 Fmt 4701 Sfmt 4725 E:\FR\FM\18NOR7.SGM 18NOR7 SIC: Description Brief Description of Accident Number of Fatalities Source of Injury Event Type Environmental Factor 7349 Building Maintenance Services, NEC 1 Ladder Fall (From Elevation) Work-Surface/Facil.Layout Cond. 8748: Business Consulting, NEC 1 Buildings I Structures Fall (From Elevation) Work-Surface/F acil.Layout Cond. Other Falls 202358974/ 310006804 22006 Employee Is Killed in Fall From Metal Deck On July 21, 2006, Employee #1, a wireless communications technician, was walking on a metal deck that provided access to a cellular phone antenna inside of an existing church steeple. The metal deck did not have guardrails or mesh protecting the edge. He walked off of the open-sided metal deck, fell44 feet, and landed on his head. He was pronounced dead at the scene. Employee #1 was not using a personal fall arrest system. Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 23:45 Nov 17, 2016 Accident Summary Number I Accident Inspection Number 82971 ER18NO16.341</GPH> srobinson on DSK5SPTVN1PROD with RULES6 Accident Summary Number I Accident Inspection Number Jkt 241001 Year Brief Description of Accident Abstract 2006 Employee Is Killed in Fall From Reactor Employee #1 was working atop a plant reactor when he fell approximately 21 feet and was killed. The grates of a walking surface were removed for maintenance. 2007 Employee Fails Through Ceiling Tile, Later Dies On December 10, 2007, Employee #1 was removing speakers from the ten movie theaters at that location. Employee #1 was walking on the speaker platform which is located 12-ft 9-in. above the floor level in order to remove the speakers. Employee #1 apparently stepped through an opening on the platform and fell to the floor. Employee #1 was airlifted to the hospital in critical condition and died of his injuries on December 13, 2007. 2007 Employee Is Killed in Fall From Top of Tanker Employee #1 was walking on the top of a paving maintenance supply tanker without fall protection, when he fell approximately 12 feet 6 inches to the concrete floor. He was killed. Employee Is Killed in Fall in Silo At approximately 6:15am on December 21, 2007, Employee #1 was riding a vertical conveyor man-lift to the top of the grain silo tower. When Employee #1 reached a height of approximately 95 ft, he slipped and fell through the man-lift floor opening below. Employee #1 struck his head then landed on a cross member of the structure. Employee #1 sustained unspecified fractures and was unable to free himself. Employee #1 died at the scene. SIC: Description 201923836 I 308320605 200922425 I 311565048 Fmt 4701 Sfmt 4725 E:\FR\FM\18NOR7.SGM Source of Injury Event Type Environmental Factor 1 Bodily Motion Fall (From Elevation) Work-SurfaceiFacil.Layout Cond. 1 Working Surface Fall (From Elevation) Work-SurfaceiFacil.Layout Cond. 1 Motor Vehicle (Indus.) Fall (From Elevation) Other 1 Buildings I Structures Fall (From Elevation) Work-SurfaceiFacil.Layout Cond. 2819 PO 00000 Frm 00480 Number of Fatalities 200643781 I 310998232 201613668 I 311702112 2007 Industrial Inorganic Chemicals. NEC 7832: Motion Picture Theaters, Ex Drive-in 2891. Adhesives and Sealants 7363: Help Supply Services 18NOR7 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 23:45 Nov 17, 2016 ER18NO16.342</GPH> 82972 VerDate Sep<11>2014 Fatal Accidents on Walking-Working Surfaces Preventable by the Final Standards, continued (2006-2010 OSHA IMIS) srobinson on DSK5SPTVN1PROD with RULES6 VerDate Sep<11>2014 Fatal Accidents on Walking-Working Surfaces Preventable by the Final Standards, continued (2006-2010 OSHA IMIS) SIC: Description Number of Fatalities Source of Injury Event Type Environmental Factor Employee Is Killed in Fall From Resort Balcony On April 1, 200 7, an employee was working as a maintenance worker at a hotel resort. A guest could not get into his room on the fifth floor, so the employee attempted to get into the room. The employee was not able to open the door with the room key, and he could not open the door using the black box which is a device which acts like a master key. The employee entered the adjacent room and went to the balcony. The employee intended to get into the locked room by crossing from one balcony to the balcony of the locked room. The space between the two balconies was approximately six feet. A wall air conditioning unit was between the two balconies, and it slightly protruded from the wall. The employee climbed atop the balcony wall and stepped onto the air conditioning unit. The employee slipped and fell approximately 36 feet to the concrete floor of the second level of the resort. He died at the scene from his injuries, which included skull fractures. 6531: Real Estate Agents and Managers 1 Working Surface Fall (From Elevation) Other 2008 Employee Is Killed in Fall From Catwalk On November 17, 2008, Employee #1 and a coworker were tightening a bolt on a inclined conveyor belt approximately 50 feet high. Employee #1 was walking down the conveyor catwalk when a section of the catwalk plank gave way. He was not wearing a safely harness, and he fell approximately 38 feet to the ground. Emergency medical services were contacted, and Employee #1 was rushed to the hospital, where he was pronounced dead. 3271: Concrete Block and Brick 1 Other Fall (From Elevation) Work-SurfaceiFacil.Layout Cond. 2008 Employee Falls Into Paper Machine and Is Killed On August 15, 2008, an employee was cleaning off the After Dryer Hood on the Number 16 paper machine using compressed air. The employee had been walking on a catwalk located on top of the hood on the east side. The employee left the catwalk and walked onto the top of the hood and fell in to the machine on to the dryer belt when the panel he was standing on gave way beneath him. The employee died of the injuries he received in the fall. 2621: Paper Mills 1 Working Surface Fall (From Elevation) Work-SurfaceiFacil.Layout Cond. Year Brief Description of Accident Abstract Jkt 241001 PO 00000 Frm 00481 201353331 I 310031315 2007 Fmt 4701 Sfmt 4725 E:\FR\FM\18NOR7.SGM 200357457 I 312453376 18NOR7 2009022451 310990205 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 23:45 Nov 17, 2016 Accident Summary Number I Accident Inspection Number 82973 ER18NO16.343</GPH> srobinson on DSK5SPTVN1PROD with RULES6 82974 VerDate Sep<11>2014 \ Accident Summary Number I Accident Inspection Number Jkt 241001 2005553241 311525745 Year 2008 ~ ~ ~ PO 00000 Brief Description of Accident Abstract Employee Falls From Derrick and Is Killed At approximately 1 30 p.m. on August 13, 2008, Employee #1, a derrickman, climbed a derrick of a rig to access the monkey board. This was the first time the monkey board had been accessed at th1s location. He was to prepare the monkey board to receive pipe that will be tripped into the hole. While securing the rear guardrail on the monkey board, the employee either tripped or slipped, which allowed the section to rotate past the point of where it was to be pinned. As it rotated, he was still holding onto the section. Employee #1 fell approximately 25 ft and was killed The employee was not using fall protection ~ SIC: Description Number of Fatalities Source of Injury Event Type Environmental Factor 1389 Oil and Gas Field Servioes. NEG 1 Working Surfaoe Fall (From Elevation) Work~Surface/Facil ~ Frm 00482 Source: U.S. Department of Labor, OSHA, Directorate of Standards and Guidance, Office of Regulatory Analysis-Safety. Layout Cond. Fmt 4701 Sfmt 4700 E:\FR\FM\18NOR7.SGM 18NOR7 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 23:45 Nov 17, 2016 ER18NO16.344</GPH> Fatal Accidents on Walking-Working Surfaces Preventable by the Final Standards, continued Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations BILLING CODE 4510–29–C srobinson on DSK5SPTVN1PROD with RULES6 VI. Federalism OSHA has reviewed the final rule in accordance with Executive Order (E.O.) 13132 on Federalism (64 FR 43255 (8/ 10/1999)). This E.O. requires that Federal agencies, to the extent possible, refrain from limiting state policymaking discretion; consult with states prior to taking action that restricts state policy options; and take action that has federalism implications only where (1) there is ‘‘constitutional and statutory authority’’ for such action, and (2) the problem is of ‘‘national significance’’ (E.O. 13132, Section 3(b)). Section 4 of E.O. 13132 allows Federal agencies to preempt state law, but only (1) where the Federal statute contains an express preemption provision or there is some other clear evidence that Congress intended preemption of state law, or (2) where the exercise of state authority conflicts with the exercise of Federal authority under the Federal statute. The E.O. further provides that Federal agencies must limit any such preemption of state law to the extent possible. The final rule complies with E.O. 13132. The FEA (Section V) and other information in the rulemaking record shows that worker exposure to walkingworking surface hazards, particularly fall hazards, is very widespread. Workers throughout general industry are exposed to walking-working surface hazards that can result in slips, trips and falls and other injuries and 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. As discussed in the Analysis of Risk section (Section II), workplace deaths due to slips, trips, and falls are second only to motor-vehicle accidents as the leading cause of worker fatalities. Congress enacted the Occupational Safety and Health Act of 1970 (OSH Act) (29 U.S.C. 651 et seq.) ‘‘to assure so far as possible every working man and woman in the nation safe and healthful working conditions’’ (29 U.S.C. 651(b)). To achieve that objective, Congress expressly authorizes the Secretary of Labor to promulgate occupational safety and health standards applicable to businesses affecting interstate commerce (29 U.S.C. 655(a)).164 164 The OSH Act defines an ‘‘occupational safety and health standard’’ as ‘‘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 VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 Section 18 of the OSH Act addresses the role of states in regulating workplace safety and health issues (29 U.S.C. 667). Section 18(a) provides that the OSH Act does not prevent states from asserting jurisdiction under state law over a workplace safety and health issue with respect to which no Federal OSHA standard is in effect (29 U.S.C. 667(a)). Where Federal OSHA has regulated an occupational safety and health issue, Section 18(b) gives states the option of developing and enforcing their own occupational safety and health standards through establishment of a State Plan. Section 18(b) specifies: ‘‘Any State which, at any time, desires to assume responsibility for development and enforcement therein of occupational safety and health standards relating to any occupational safety or health issue with respect to which a Federal standard has been promulgated . . . shall submit a State plan for the development of such standards and their enforcement.’’ Section 18(c) provides that the Secretary of Labor will issue approval of a State Plan if the plan provides for the development and enforcement of standards for occupational safety and health that are at least as effective in providing safe and healthful workplaces as federal OSHA standards. (29 U.S.C. 667(c)). State Plan standards may have different or additional requirements from OSHA’s standards. Currently, 27 U.S. states and territories, including New York, have OSHA-approved State Plans. However, the New York State Plan is limited in coverage; it is one of five state and local government only State Plans (29 CFR part 1956, subpart F). As such, the New York State Plan only covers state and local government workers and does not cover private sector employers or employees. Approximately 40 years before Congress passed the OSH Act, New York’s legislature had enacted a statute addressing the ‘‘[p]rotection of the public and of persons engaged at window cleaning and cleaning of exterior surfaces of buildings’’ 165 (N.Y. safety and healthful employment and places of employment’’ (29 U.S.C. 652(8)). 165 New York Lab. Law sec. 2(13) defines ‘‘public building’’ to include ‘‘a factory building, an office building, a mercantile building, a hotel building, a theatre building, a warehouse building, an apartment building, a state or municipal building, a school, a college or university building, a building containing a place of public assembly maintained or leased for pecuniary gain, or any other building more than one story high except a dwelling house less than three stories high or occupied by less than three families’’ (See also, N.Y. Comp. Codes R. & Regs. sec. 21.2(k)). Section 202 excepts the following public buildings from coverage: Multiple PO 00000 Frm 00483 Fmt 4701 Sfmt 4700 82975 Lab. Law sec. 202). Section 202 requires that workers be provided with safe means for cleaning windows and exterior surfaces, and not be required or allowed to clean any window or exterior surface unless such means are in place for the ‘‘prevention of accidents and for the protection of the public and of such persons engaged in such work’’ (N.Y. Lab. Law sec. 202). The statute applies to all employers whose employees clean windows and exterior surfaces of covered buildings as well as to owners, lessees, agents, and managers of such buildings. Section 202 also authorized the Industrial Board of Appeals (Industrial Board) to ‘‘make rules to effectuate the purposes of the section.’’ It specifies that those rules shall be applicable exclusively throughout the state, notwithstanding any other general or local law or regulation, and that the Commissioner of Labor shall have ‘‘exclusive authority’’ to enforce sec. 202 and the rules issued thereunder (N.Y. Lab. Law sec. 202). Pursuant to sec. 202, the Industrial Board has issued regulations for the ‘‘protection of persons engaged at window cleaning;’’ however, they do not include specific provisions directed at protecting the public (N.Y. Comp. Codes R. & Regs. part 21). The regulations specify, among other things, that employees shall not be permitted to clean windows other than ‘‘in accordance with an authorized means and methods’’ (N.Y. Comp. Codes R. & Regs. sec. 21.3(b)(2) (emphasis added)). The following means and methods are the only ones the regulations authorize employers to use for cleaning windows: • Working from safe surfaces; • Working from window sills or ledges; • Working from ladders; • Working from boatswain’s chairs; • Working from scaffolds (12 N.Y. Comp. Codes & Regs. sec. 21.4). The authorized means and methods do not include rope descent systems (RDS) 166 or identify whether dwellings six or fewer stories in height; any building three or fewer stories in height in cities, towns or villages with a population of less than 40,000; and windows or exterior surfaces of any building the Industrial Board of Appeals may exempt from the requirement. 166 The final rule defines a rope descent system as a suspension system that allows an employee to descend in a controlled manner and, as needed, stop at any point during the descent. A rope descent system usually consists of a roof anchorage, support rope, a descent device, carabiner(s) or shackle(s), and a chair (seatboard). A rope descent system also is called controlled descent equipment or apparatus. Rope descent systems do not include industrial rope access systems (final § 1910.21(b)). The final rule requires that RDSs be used in E:\FR\FM\18NOR7.SGM Continued 18NOR7 82976 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations srobinson on DSK5SPTVN1PROD with RULES6 ‘‘boatswain’s chairs’’ 167 include RDSs. However, New York State Department of Labor (NYSDOL) advisory standards on practices and procedures for the use of boatswain’s chairs expressly prohibit employers from using controlled descent devices (CDDs) 168 for window cleaning (Advisory Standards for Construction, Operation and Maintenance of Suspended Scaffolds used for Window Cleaning and Light Maintenance, 101–1, 101–3 Design Components, sec. 9(b)(ii)). The final rule (§ 1910.27(b)), on the other hand, allows employers to use RDSs for activities performed at elevated heights, including window cleaning. Final § 1910.27(b)(2)(i) limits the use of RDSs to elevations not exceeding 300 feet above grade; however, employers may use RDSs at greater heights if they can demonstrate that it is not feasible to access such heights by any method other than an RDS or other means pose a greater hazard than using an RDS. OSHA received many comments on the proposed rule. Many stakeholders, including window cleaning companies and window cleaners, supported allowing employers to use RDSs, including at heights above 300 feet (e.g., Exs. 138; 147; 163; 184; 221; 242; 243; 329 (1/19/2011, pgs. 326–29). Also, many stakeholders, including many New York window cleaners, opposed the proposed rule (e.g., Exs. 131; 224; 311; 313; 314; 316; 319; 329 (1/19/2011; pgs. 5–8, 17–19; 354). They urged that OSHA, like New York, prohibit the use of RDSs for window cleaning and indicated concerns about the potential preemptive effect of the final rule on New York’s window cleaning laws and regulations. conjunction with a separate personal fall arrest system to protect workers if a fall occurs (§ 1910.27(b)(2)(vi)). 167 Existing § 1910.21(f)(2) defines a boatswain’s chair as a ‘‘seat supported slings attached to a suspended rope, designed to accommodate one workman in a sitting position.’’ OSHA’s construction cranes and derricks standard, revised in 2010, defines boatswain’s chair as ‘‘a single-point adjustable suspension scaffold consisting of a seat or sling (which may be incorporated into a full body harness) designed to support one employee in a sitting position’’ (29 CFR 1926.1401). In the proposed rule OSHA characterized rope descent systems as ‘‘a variation of a single-point adjustable suspension scaffold’’ (proposed § 1910.21(b)). Several stakeholders said OSHA’s characterization was not accurate because RDS and controlled descent devices only travel downward whereas single-point adjustable suspension scaffolds, such as boatswain’s chairs, can go up and down. (Exs. 62; 168; 205). The final rule clarifies that RDS are not a boatswain’s chair or a type of single-point adjustable suspension scaffold (final § 1910.21(b)). 168 The definition of ‘‘rope descent system’’ (RDS) in final § 1910.21(b) states that RDS also are called CDDs. VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 The question of whether a state law is preempted by Federal law is one of congressional intent (Gade v. National Solid Wastes Management, 505 U.S. 88, 96 (1992)). In Gade,169 a five-justice majority said the language of Section 18 of the OSH Act indicates Congress’ intent to preempt state occupational safety and health regulations relating to an issue that Federal OSHA already has regulated, unless the state has an OSHAapproved State Plan (Id., at 98). A four-justice plurality determined the state law, absent an approved State Plan, is impliedly pre-empted’’ (Id., at 98 (Congress’ intent is ‘‘implicitly contained in the [OSH Act’s] structure and purpose’’)). The plurality said language in Section 18(b) requiring that a state ‘‘shall submit a State plan’’ for approval if it desires to assume responsibility for developing and enforcing standards on an occupational safety and health issue that Federal OSHA has regulated, evidences Congress’ intent to preempt where there is no approved plan: The unavoidable implication of [Section 18(b)] is that a State may not enforce its own occupational safety and health standards without obtaining the Secretary’s approval (Id., at 99). The plurality noted that other parts of Section 18 also support preemption absent an approved plan (Id., at 100– 102). Looking at Section 18 as a whole, the plurality was persuaded that Congress sought ‘‘to promote occupational safety and health while at the same time avoiding duplicative, and possibly counterproductive, regulation’’ (Id., at 102). Therefore, they concluded that, absent an approved plan, any state regulation of an OSHA-regulated occupational safety or health issue is preempted as being in conflict with ‘‘the full purposes and objectives’’ of the OSH Act. The plurality also concluded that allowing a state without a -State Plan to supplement Federal OSHA standards, even non-conflicting laws,170 would be inconsistent with the ‘‘federal scheme of establishing uniform federal standards, on one hand, and 169 Gade addressed the preemptive effect of OSHA’s Hazardous Waste Operations and Emergency Response standard (29 CFR 1910.120) on Illinois laws establishing training and license requirements for hazardous waste equipment operators and workers. Illinois did not have an approved State Plan at the time. 170 OSHA notes that New York’s laws and regulations and final § 1910.27 are not nonconflicting regulations. Rather, it is ‘‘a physical impossibility’’ for employers and employees to comply with both the final rule, which allows the use of RDSs, and New York’s regulations, which prohibit their use (Gade, 505 U.S. at 98). If employers use RDSs in accordance with final § 1910.27(b) to clean windows up to 300 feet above grade, they violate New York’s regulations. PO 00000 Frm 00484 Fmt 4701 Sfmt 4700 encouraging States to assume full responsibility of their own OSH programs, on the other’’ (Id., at 103). The Court also reached the same conclusion regarding the preemptive effect of a law that regulates public as well as workplace safety and health (i.e., a ‘‘dual impact’’ law). The five-justice majority said that any state law ‘‘designed to promote safety and health in the workplace falls neatly within the Act’s definition of an ‘occupational safety and health standard’ ’’ (Id., at 105). According to the Court, the fact such a state law also may have a nonoccupational purpose or impact ‘‘does not render it any less of an occupational safety and health standard for purposes of preemption analysis’’: [I]t would defeat the purpose of section 18 if a state could enact measures stricter than OSHA’s and largely accomplished through regulation of worker safety and health simply by asserting a non-occupational purpose for the legislation’ (Id., at 106, citing National Solid Wastes Management Assn. v. Killian, 918 F.2d 671, 679 (7th Cir. 1990)). Therefore, the Court said it must look at the ‘‘effects of the law’’ as well legislature’s professed purpose (Id., at 105). Applying this test, the Court determined that, in the absence of an approved state plan, the OSH Act preempts all state law that ‘‘constitutes, in a direct, clear and substantial way, regulation of worker health and safety’’ (Id., at 107).171 Based on the following, OSHA finds that sec. 202 ‘‘directly, substantially, and specifically regulates occupational safety and health.’’ Although the title of sec. 202 specifies that its purpose is ‘‘[p]rotection of the public and of persons engaged at window cleaning and cleaning of exterior surfaces of buildings,’’ the language in sec. 202 clearly indicates it is promulgated primarily for the protection of workers rather than the public. For example, Section 202 directs employers and contractors to ‘‘provide safe means’’ for workers to clean windows and building surfaces and ‘‘require his employees . . . to use the equipment and safety devices’’ while cleaning windows and building surfaces, but does not contain any requirements directed at members of the public. As such, protection of the 171 OSHA notes that the Court in Gade recognized an exception to the OSH Act’s preemption of state regulations for ‘‘laws of general applicability’’ (Gade, 505 U.S. 107). Laws of general applicability regulate the conduct of workers ‘‘simply as members of the general public’’ (Id.). Like the Court, OSHA has consistently taken the position the OSH Act does not preempt state laws promulgated primarily for the purpose of protecting public safety, such as building, electrical and fire codes (CSP 01–03–004, The Effect of Preemption on the State Agencies without 18(b) Plans (3/13/1981)). E:\FR\FM\18NOR7.SGM 18NOR7 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations public appears to be a residual benefit of sec. 202’s requirements to protect workers. The legislative history of sec. 202 also reinforces that it is primarily ‘‘directed at workplace safety’’ (Gade, at 107). Section 202, as originally enacted in 1930, only applied to ‘‘persons engaged at window cleaning.’’ It wasn’t until 1970 that the legislature expanded the scope of sec. 202 to cover ‘‘protection of the public.’’ The title of the Industrial Board regulations that implement sec. 202, ‘‘Protection of persons employed at window cleaning—structural requirements, equipment and procedure,’’ also support that sec. 202 is primarily directed to protecting workers (N.Y. Comp. Codes R. & Regs. Part 21). The regulations’ findings of fact reinforce this: srobinson on DSK5SPTVN1PROD with RULES6 The board finds that the trade, occupation or process of cleaning the windows of public buildings involves such elements of danger to the lives, health or safety of persons employed therein as to require special regulations for the protection of such persons, in that such trade, occupation or process necessarily involves the constant hazard of falling from dangerous heights and creates a substantial risk of serious injury to such persons and others (12 N.Y. Comp. Codes & Regs. 21.0). In addition to the ‘‘authorized means and methods’’ employers must use to clean windows, the regulations as well as the advisory standards also establish work practice and equipment requirements employers and workers must follow. Like OSHA standards, New York’s laws and regulations establish the means and methods ‘‘reasonably necessary or appropriate to provide safety and health employment and places of employment’’ for workers who clean windows and exterior surfaces of public buildings. Looking at sec. 202 and its implementing regulations and advisory standards as a whole, the substantial effect they have on workplace safety and health shows they are occupational safety and health standards within the meaning of the OSH Act. Since New York’s laws regulate the same occupational safety and health issue as the final rule, pursuant to Gade, they can be saved from preemption only if New York has an OSHA-approved State Plan. As mentioned, New York has an approved State Plan, but it only covers state and local government employees. New York has not submitted a State Plan covering private employees for approval by the Secretary of Labor. Absent such a plan, New York’s laws and regulations, to the extent that they cover private employees, are preempted as being in conflict with ‘‘the full VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 purposes and objectives’’ of the OSH Act (Gade, at 98). That said, New York’s laws remain in effect for state and local government employees, and, to the extent that New York’s laws are at least as effective as OSHA’s standard, state and local government employees are prohibited from using RDS when they clean windows. Finally, OSHA notes Congress saved two areas from federal preemption. In addition to section 18(a), discussed above, Section 4(b)(4) of the OSH Act evidences Congress’ clear intent to preserve state laws that that create liability for personal injury (Gade, 505 U.S. at 96). Section 4(b)(4) states: ‘‘Nothing in this Act shall be construed to supersede or in any manner affect any workmen’s compensation law or to enlarge or diminish of affect in any other manner, the common law or statutory rights, duties or liabilities of employers and employees under any law with respect to injuries, diseases, or death of employees arising out of, or in the course of, employment’’ (29 U.S.C. 653(b)(4)). Section 202 creates a private right of action for violations of the window cleaning regulations (N.Y. Comp. Codes R. & Regs. Part 21), which the New York courts have consistently upheld (See e.g., Pollard v. Trivia Bldg. Corp., 291 N.Y. 19 (1943); Bauer v. Female Academy of the Sacred Heart (767 N.E.2d 1136 (N.Y. 2002)). Since Gade, courts routinely have upheld state tort laws against preemption challenges so long as the state laws do not create conflict with an OSHA standard (See Lindsey v. Caterpillar, 480 F.3d. 202,212 (3d. Cir. 2007) (‘‘We join with those courts whose holdings have formed a ‘solid consensus that [Section 4(b)(4)] operates to save state tort rules from preemption’ ’’)). Explaining the rationale behind Section 4(b)(4)’s savings clause, the courts noted that the OSH Act is primarily preventive in nature and does not provide private remedies for injuries (Irwin v. St. Joseph’s Intercommunity Hospital, 665 N.Y.S.2d 773, 778–79 (App. Div. 1997) (citing cases)). Although Section 4(b)(4) does not protect NYSDOL’s ability to enforce § 202 and the regulations implementing it, OSHA believes § 202 survives preemption to the extent that it provides workers with a private right of action for damages for injuries. VII. State-Plan Requirements When Federal OSHA promulgates a new standard or more stringent amendment to an existing standard, the 27 States and U.S. Territories with their PO 00000 Frm 00485 Fmt 4701 Sfmt 4700 82977 own OSHA-approved occupational safety and health plans must: • Amend their standards to reflect the new standard or amendment; or • Show OSHA why such action is unnecessary; for example, because an existing State standard covering this area is ‘‘at least as effective’’ as the new Federal standard or amendment (29 CFR 1953.5(a)). The State standard must be at least as effective as the final Federal rule, must be applicable to both the private and public (State and local government employees) sectors, and must be completed within 6 months of the promulgation date of the final Federal rule. When OSHA promulgates a new standard or amendment that does not impose additional or more stringent requirements than an existing standard, State-Plan States are not required to amend their standards, although the Agency may encourage them to do so. The 21 States and one U.S. Territory with OSHA-approved occupational safety and health plans covering private employers and State and local government employees are: Alaska, Arizona, California, Hawaii, Indiana, Iowa, Kentucky, Maryland, Michigan, Minnesota, Nevada, New Mexico, North Carolina, Oregon, Puerto Rico, South Carolina, Tennessee, Utah, Vermont, Virginia, Washington, and Wyoming. In addition, four States and one U.S. Territory have OSHA-approved State Plans that apply to State and local government employees only: Connecticut, Illinois, New Jersey, New York, and the Virgin Islands. This final rule results in more stringent requirements for the work it covers. Therefore, States and Territories with OSHA-approved State Plans must adopt comparable amendments to their standards within 6 months of the date of publication of this final rule in the Federal Register unless they demonstrate that such amendments are not necessary because their existing standards are at least as effective in protecting workers as this final rule. Each State Plan’s existing requirements will continue to be in effect until it adopts the required revisions. VIII. Unfunded Mandates Reform Act OSHA reviewed this final rule according to the Unfunded Mandates Reform Act of 1995 (‘‘UMRA‘‘; 2 U.S.C. 1501 et seq.) and Executive Order 13132 (64 FR 43255 (Aug. 10, 1999)). As discussed in the Final Economic Analysis and Final Regulatory Flexibility Screening Analysis, OSHA estimates that compliance with this final rule would require general industry private-sector employers to E:\FR\FM\18NOR7.SGM 18NOR7 82978 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations expend about $246.5 million each year. However, while this final rule establishes a federal mandate in the private sector, it is not a significant regulatory action within the meaning of Section 202 of the UMRA (2 U.S.C. 1532). OSHA standards do not apply to State or local governments except in States that have elected, under a voluntary agreement, to adopt a State Plan that OSHA has approved. State Plan States enforce compliance with their State standards on public sector entities, and these agreements specify that these State standards must be equivalent to OSHA standards. Thus, although OSHA has included compliance costs for the affected public-sector entities in its analysis of the expected impacts associated with the final rule, the final rule does not involve any unfunded mandates being imposed on any State or local government entity. Consequently, this final rule does not meet the definition of a ‘‘Federal intergovernmental mandate’’ (see Sec. 421(5) of the UMRA (2 U.S.C. 658(5))). Therefore, for the purposes of the UMRA, the Agency certifies that this final rule does not mandate that State, local, and tribal governments adopt new, unfunded regulatory obligations. srobinson on DSK5SPTVN1PROD with RULES6 IX. Consultation and Coordination With Indian Tribal Governments OSHA reviewed this final rule in accordance with Executive Order 13175, (65 FR 67249 (Nov. 9, 2000)) and determined that it does not have ‘‘tribal implications’’ as defined in that order. The final rule does not have substantial direct effects on one or more Indian tribes, on the relationship between the Federal government and Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes. X. Office of Management and Budget Review Under the Paperwork Reduction Act of 1995 The final general industry WalkingWorking Surfaces (29 CFR part 1910, subpart D) and Personal Protective Equipment (Fall Protection PPE) (29 CFR part 1910, subpart I) standards, like the proposed rule, contain collection of information (paperwork) requirements that are subject to review by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (PRA–95) (44 U.S.C. 3501 et seq.), and OMB regulations (5 CFR part 1320). The PRA–95 defines ‘‘collection of information’’ to mean, ‘‘the obtaining, causing to be obtained, soliciting, or requiring the disclosure to third parties or the public, of facts or opinions by or VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 for an agency, regardless of form or format’’ (44 U.S.C. 3502(3)(A)). Under PRA–95, a Federal agency cannot conduct or sponsor a collection of information unless OMB approves it and the collection of information displays a currently valid OMB control number. In addition, notwithstanding any other provision of law, no employer shall be subject to penalty for failing to comply with a collection of information that does not display a currently valid OMB control number. OSHA has OMB approval for the collection of information requirements contained in both existing subparts D and I. These Information Collection Requests (ICRs) (paperwork burden hour and cost analysis), both of which expire August 31, 2019, are titled: • Standard on Walking-Working Surfaces (29 CFR part 1910, subpart D), OMB control number 1218–0199; and • Personal Protective Equipment (PPE) for General Industry (29 CFR part 1910, subpart I), OMB control number 1218–0205. In accordance with PRA–95 (44 U.S.C. 3506(c)(2)), OSHA included revised ICRs for subparts D and I in the proposed rule and solicited public comment (75 FR 28862, 29129 (5/24/ 2010)). OSHA also submitted the revised ICRs to OMB for review as PRA– 95 requires (44 U.S.C. 3507(d)). On July 26, 2010, OMB issued a Notice of Action (NOA) for the revised subpart D ICR, filing comment on the request that did not approve the request at that time and stating: ‘‘Terms of the previous clearance remain in effect.’’ On October 11, 2010, OMB issued a NOA for the revised subpart I ICR, also filing comment on the proposed revisions to the ICR and stating: ‘‘OMB is not approving the collection of information in the proposed rule at this time. Prior to publication of the final rule, the agency should provide a summary of all comments related to the information collection requirements contained in the proposed rule and a description of any changes made in response to these comments.’’ OSHA did not receive any public comments on the burden estimates in the proposed revised ICRs. However, the Agency received a number of comments on the proposed rule, discussed earlier in this preamble, that include information relevant to the paperwork analysis. OSHA addresses these comments in detail in the final ICR for subparts D and I. Concurrent with publication of this final rule, the Department is submitting ICRs to revise the authority for the information collections under the Paperwork Reduction Act. The PO 00000 Frm 00486 Fmt 4701 Sfmt 4700 Department will publish an additional Federal Register notice to announce the final OMB disposition on those requests. Title: Standard on Walking—Working Surfaces (29 CFR part 1910, subpart D). Type of Review: Revision of a currently approved collection. OMB Control Number: 1218–0199. Affected Public: Business or other forprofits; Federal Government; State, Local, or Tribal Government. Total Estimated Number of Respondents: 750,000. Total Estimated Number of Responses: 1,032,860. Total Estimated Annual Burden Hours: 498,803. Total Estimated Annual Cost Burden (Capital and start-up cost component): $54,697,500. Description of Collections of Information: Final subpart D contains several new collection of information requirements and removes three existing collection of information requirements from this ICR. Final § 1910.22—General requirements. Final § 1910.22(b), like the proposal, requires that employers ensure each walking-working surface can support the maximum intended load for that surface. The existing rule requires that building officials mark on plates the loads they have approved and securely affix them in a conspicuous place in the space to which they relate. The existing rule also requires that the plates not be removed or defaced and be replaced, if they are. This final rule replaces the specifications in the existing rule (§ 1910.22(d)(1)) with performancebased language and, in so doing, deletes the collection of information requirement. In the preamble of the proposed and final rules, OSHA explained that the specification requirement in the existing rule was not necessary for two reasons: (1) Load-limit information is available in building plans and from other sources, and (2) maximum loads are taken into consideration when surfaces are designed. Under the final rule, employers can obtain information about current walking-working surfaces from plates posted in accordance with the existing rule. For new buildings, structures and walking-working surfaces, employers can obtain information on load limits in various ways, such as from building plans, local codes, third-party certification, or self-evaluations. Final § 1910.23—Ladders. Final § 1910.23 (b)(10) requires that any ladder with structural or other defects immediately be tagged ‘‘Dangerous: Do E:\FR\FM\18NOR7.SGM 18NOR7 srobinson on DSK5SPTVN1PROD with RULES6 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations Not Use,’’ or with ‘‘similar language in accordance with § 1910.145, and removed from service until it is repaired or replaced.’’ Section 1910.145 specifies that, depending on the nature of the hazard, tags must contain a ‘‘signal’’ word and ‘‘major message’’ (§ 1910.145(f)(4)). The ‘‘signal’’ word must be ‘‘Danger,’’ ‘‘Caution,’’ ‘‘Biological Hazard,’’ or ‘‘BIOHAZARD’’ or the tag may use the biological hazard symbol (§ 1910.145(f)(4)(i)(A)). The major message, which can be in written text, pictographs or both, must indicate ‘‘the specific hazardous condition or instruction to be communicated to the employee’’ (§ 1910.145(f)(4)(i)(B) and (f)(4)(iii)). The existing rule also requires tagging defective ladders, but the requirement only applies to portable wood and metal ladders (§§ 1910.25(d)(1)(x) and 1910.26(c)(2)(vii), respectively). In addition, the subpart D ICR only takes paperwork burden hours and costs for portable metal ladders, not wood ones. This is because the existing standard for wood ladders provides the specific language that employers must use for the tags on defective ladders (‘‘Dangerous: Do Not Use’’). When OSHA supplies the exact language that employers must provide to employees, the Agency is not required to take paperwork burdens because the requirement does not come within the definition of ‘‘collection of information’’ under PRA–95 (5 CFR 1320.3(c)(2)). In the proposed rule, the Agency proposed removing the word ‘‘Dangerous’’ from the existing tag language and requiring that tags state ‘‘Do Not Use’’ or similar language that complies with § 1910.145. After further analysis, however, OSHA concluded that retaining the signal word is necessary to get workers’ attention in order 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). OSHA notes that the final rule applies the tagging requirement to all ladders final § 1910.23 covers, which includes fixed ladders, mobile ladder stands and mobile ladder stand platforms in addition to portable wood and metal ladders. As a result, the final rule expands the collection of information requirement. Section 1910.27—Scaffolds and rope descent systems. Final § 1910.27, like the proposed rule, establishes requirements for scaffolds and rope descent systems (RDS) used in general industry. The requirements are designed to protect workers whose duties require VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 them to work at elevations, whether on scaffolds or RDS. Final paragraph § 1910.27(a), like the proposed rule, replaces the existing general industry scaffold standards (§§ 1910.28 and 1910.29) with the requirement that employers ensure scaffolds used meet the requirements in the construction scaffolds standards (29 CFR part 1926, subpart L). As the record indicated, many general industry employers use scaffolds to perform both general industry and construction activities. OSHA believes that allowing employers to comply with the same scaffold requirements regardless of whether they are performing general industry or construction activities will increase understanding of and compliance with the final rule, and thus, provide greater protection for workers. By replacing the existing general industry requirements, the final rule deletes the collection of information requirement in existing § 1910.28(e)(3). That provision requires that employers ensure outrigger scaffolds are constructed and erected in accordance with table D–16, if they are not designed by a licensed professional engineer, and keep a copy of the detailed drawings and specifications at the job. Final paragraph § 1910.27(b), like the proposal, adds new requirements that addresses the use of RDS. Final paragraphs (b)(1)(i) and (ii) contain a new collection of information requirement. Final paragraph (b)(1) requires that, before any RDS is used, the building owner must inform the employer in writing (final paragraph (b)(1)(i)), and the employer must obtain written information from the building owner (final paragraph (b)(1)(ii)), that the building owner has identified, tested, certified, and maintained each anchorage to ensure it is capable of supporting at least 5,000 pounds in any direction for each worker attached. The final rule specifies that the written information the building owner provides must be based on: • An annual inspection; and • A certification of each anchorage, as necessary, and at least every 10 years. The requirement that anchorages be certified ‘‘as necessary’’ means the building owner must have a qualified person recertify any anchorage when the owner knows or has reason to believe recertification is needed (final paragraph (b)(1)(i)). The final rule gives building owners flexibility in determining when anchorage recertification is necessary. As discussed in Section IV, factors or conditions indicating that recertification may be needed include, but are not PO 00000 Frm 00487 Fmt 4701 Sfmt 4700 82979 limited to, an accident involving the use of an RDS; a report of damage to an anchorage, major alteration to the building; exposure of the anchorage to destructive industrial substances; and location of the building in an area that might accelerate corrosion, such as areas having exposure to high rainfall, high humidity, or sea air. Final paragraph (b)(1)(ii) requires that employers keep the written information obtained from the building owner for the duration of the job. OSHA believes the requirement that building owners provide written information on anchorages to employers is essential to ensure that employers know the anchorages are safe for their workers who use RDS. In addition, the requirement that employers retain the written information throughout the job is important to keep workers informed about which anchorages are safe to use. This is particularly true if the job involves multiple workshifts or work crews, the employer adds new workers during the job, or there are changes in on-site supervisors. Final § 1910.28—Duty to have fall protection and falling object protection. Final § 1910.28 requires that employers provide protection for each employee exposed to fall and falling object hazards. Final paragraph (b)(1)(ii) is a new requirement. The provision requires that when the employer can demonstrate that it is not feasible or creates a greater hazard to use a guardrail, safety net, or personal fall protection systems on residential roofs, the employer must develop and implement a fall protection plan that meets the requirements of 29 CFR 1926.502(k). This requirement was added to the final rule based on public comment to allow employers greater flexibility in using PPE on residential roofs and to be more consistent with OSHA’s construction’s fall protection standard. Final paragraph (b)(8)(iii), like the proposal, is a new requirement that addresses fall hazards associated with repair, service, and assembly pits less than 10 feet deep. The provision requires that employers post readilyvisible warning signs in pit areas that state ‘‘Caution—Open Pit’’ and also comply with the requirements in § 1910.145. The proposed standard would have required that employers post caution signs stating ‘‘Caution—Open Floor’’ or a ‘‘similar legend.’’ In the revised ICR published in the proposed rule, OSHA said proposed § 1910.28(b)(8)(iii) contains a new collection of information requirement and took a paperwork burden. The final rule, however, does E:\FR\FM\18NOR7.SGM 18NOR7 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations srobinson on DSK5SPTVN1PROD with RULES6 not permit employers to post signs that contain a ‘‘similar legend;’’ it requires that employers must post signs that state ‘‘Caution—Open Floor.’’ Therefore, OSHA is not taking paperwork burden hours or costs because, as mentioned, information supplied by the Federal government to the recipient for the purpose of disclosure to the public is not a collection of information under PRA–95. Title: Personal Protective Equipment (PPE) for General Industry (29 CFR part 1910, subpart I). Type of Review: Revision of a currently approved collection. OMB Control Number: 1218–0205. Affected Public: Business or other forprofits; Federal Government; State, Local, or Tribal Government. Total Estimated Number of Respondents: 3,500,000. Total Estimated Number of Responses: 2,220,281. Total Estimated Annual Burden Hours: 3,745,218. Total Estimated Annual Cost Burden (Capital and start-up cost component): $0. Description of Collections of Information: Final § 1910.140, like the proposed rule, adds a new section to subpart I that addresses personal fall protection systems, such as personal fall arrest systems, travel restraint systems and positioning systems. Although final § 1910.140 does not contain any collection of information requirements, employers whose workers use a personal fall protection system also must comply with § 1910.132. Section 1910.132(d)(2) requires employers certify in writing they have performed the required workplace hazard assessment (§ 1910.132(d)(1)) to VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 determine whether fall or falling-object hazards are present, or likely to be present, that make the use of personal fall protection systems necessary. The written certification must identify the date and workplace assessed and the person who is certifying that the hazard assessment was performed. In addition, the written document must identify that it is a workplace hazard assessment certification. The written certification requirement is a collection of information under PRA–95. At the time OSHA published the proposed rule, general industry employers also were required to comply with § 1910.132(f)(4). That provision required employers to certify in writing that each worker has received and understood the PPE training. The standard also required that the written certification specify name of each employee trained plus the date and content of the training. In the revised ICR that OSHA published in the proposed rule, the Agency said § 1910.132(f)(4) imposes a new information collection requirement for personal fall protection systems and took a paperwork burden. Thereafter, as part of the Standards Improvement Project—Phase III final rule, OSHA deleted § 1910.132(f)(4) (76 FR 33590, 6/ 8/3011). Therefore, OSHA has removed the information collection requirement from the final ICR for Personal Protective Equipment (PPE) for General Industry. XI. Dates Effective Date. The final rule generally becomes effective and enforceable 60 days after publication of this document in the Federal Register, which is January 17, 2017. Information PO 00000 Frm 00488 Fmt 4701 Sfmt 4725 collections subject to OMB approval will take effect on the date OMB approves the Department’s request to revise the information collection authority under PRA–95 or the date the rule otherwise becomes effective and the compliance date has arrived, whichever date is later. The Department will publish a document in the Federal Register to announce OMB’s disposition of the Department’s requests to revise the Paperwork Reduction Act authority for the information collections. Compliance Dates. Most of the requirements in the final rule are existing provisions that OSHA is retaining and updating. OSHA believes that employers already are in compliance with those provisions and, therefore, it is not necessary to give additional time to comply with them. However, for some of the new requirements in the final rule, OSHA is providing employers with additional time to come into compliance. The extended compliance dates give employers time to get familiar with the new requirements, evaluate changes they may need to make, purchase equipment necessary to comply with the final rule, and develop and present required training. In addition, the extended compliance dates allows employers to upgrade their fall protection systems as part of the normal ‘‘business cycle’’ or ‘‘useful life’’ of equipment (i.e., cage, well, fixed ladder), which reduces compliance costs. The following table specifies the amount of additional time OSHA is giving employers to certify anchorages, equip fixed ladders with fall protection, and train workers: E:\FR\FM\18NOR7.SGM 18NOR7 ER18NO16.345</GPH> 82980 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations For additional information about these compliance deadlines, see discussion of §§ 1910.27(b)(1), 1910.28(b)(9), and 1910.30 in Section IV. List of Subjects in 29 CFR Part 1910 Falls, Fall arrest, Fall protection, Fall restraint, Guardrails, Incorporation by reference, Ladders, Occupational safety and health, Scaffolds, Stairs, Walkingworking surfaces. Authority and Signature This document was prepared under the direction of David Michaels, Assistant Secretary of Labor for Occupational Safety and Health. This action is taken pursuant to sections 29 U.S.C. 653, 655, 657; Secretary of Labor’s Order No. 1–2012 (77 FR 3912 (1/25/2012)); and 29 CFR part 1911. Signed at Washington, DC, on October 4, 2016. David Michaels, Assistant Secretary of Labor for Occupational Safety and Health. Final Regulatory Text For the reasons set forth in the preamble, OSHA amends part 1910 of title 29 of the Code of Federal Regulations as follows: PART 1910—OCCUPATIONAL SAFETY AND HEALTH STANDARDS 1. The authority citation for part 1910 continues to read as follows: ■ Authority: 29 U.S.C. 653, 655, 657; Secretary of Labor’s Order Numbers 12–71 (36 FR 8754), 8–76 (41 FR 25059), 9–83 (48 FR 35736), 1–90 (55 FR 9033), 6–96 (62 FR 111), 3–2000 (65 FR 50017), 5–2002 (67 FR 65008), 5–2007 (72 FR 31159), 4–2010 (75 FR 55355), or 1–2012 (77 FR 3912), as applicable. Sections 1910.6, 1910.7, 1910.8 and 1910.9 also issued under 29 CFR 1911. Section 1910.7(f) also issued under 31 U.S.C. 9701, 29 U.S.C. 9a, 5 U.S.C. 553; Public Law 106– 113 (113 Stat. 1501A–222); Pub. L. 11–8 and 111–317; and OMB Circular A–25 (dated July 8, 1993) (58 FR 38142, July 15, 1993). § 1910.6 [Amended] 2. Amend § 1910.6 by: a. In paragraph (e)(9), removing ‘‘1910.68(b)(12)’’ and ‘‘1910.179(c)(2);‘‘; and ■ b. Removing and reserving paragraphs (h)(8) and (j)(1). ■ 3. Revise subpart D to read as follows: srobinson on DSK5SPTVN1PROD with RULES6 ■ ■ Subpart D—Walking-Working Surfaces Sec. 1910.21 1910.22 1910.23 1910.24 Scope and definitions. General requirements. Ladders. Step bolts and manhole steps. VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 1910.25 Stairways. 1910.26 Dockboards. 1910.27 Scaffolds and rope descent systems. 1910.28 Duty to have fall protection and falling object protection. 1910.29 Fall protection systems and falling object protection—criteria and practices. 1910.30 Training requirements. Authority: 29 U.S.C. 653, 655, and 657; Secretary of Labor’s Order No. 12–71 (36 FR 8754), 8–76 (41 FR 25059), 9–83 (48 FR 35736), 1–90 (55 FR 9033), and 1–2012 (77 FR 3912), as applicable; and 29 CFR part 1911. § 1910.21 Scope and definitions. (a) Scope. This subpart applies to all general industry workplaces. It covers all walking-working surfaces unless specifically excluded by an individual section of this subpart. (b) Definitions. The following definitions apply in this subpart: Alternating tread-type stair means a type of stairway consisting of a series of treads that usually are attached to a center support in an alternating manner such that an employee typically does not have both feet on the same level while using the stairway. Anchorage means a secure point of attachment for equipment such as lifelines, lanyards, deceleration devices, and rope descent systems. Authorized means an employee who the employer assigns to perform a specific type of duty, or allows in a specific location or area. Cage means an enclosure mounted on the side rails of a fixed ladder or fastened to a structure behind the fixed ladder that is designed to surround the climbing space of the ladder. A cage also is called a ‘‘cage guard’’ or ‘‘basket guard.’’ Carrier means 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. Combination ladder means a portable ladder that can be used as a stepladder, extension ladder, trestle ladder, or stairway ladder. The components of a combination ladder also may be used separately as a single ladder. Dangerous equipment means 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 the equipment. Designated area means a distinct portion of a walking-working surface delineated by a warning line in which employees may perform work without additional fall protection. Dockboard means a portable or fixed device that spans a gap or compensates PO 00000 Frm 00489 Fmt 4701 Sfmt 4700 82981 for a difference in elevation between a loading platform and a transport vehicle. Dockboards include, but are not limited to, bridge plates, dock plates, and dock levelers. Equivalent means alternative designs, equipment, materials, or methods, that the employer can demonstrate will provide an equal or greater degree of safety for employees compared to the designs, equipment, materials, or methods specified in this subpart. Extension ladder means a non-selfsupporting portable ladder that is adjustable in length. Failure means a load refusal, breakage, or separation of component parts. A load refusal is the point at which the ultimate strength of a component or object is exceeded. Fall hazard means any condition on a walking-working surface that exposes an employee to a risk of harm from a fall on the same level or to a lower level. Fall protection means any equipment, device, or system that prevents an employee from falling from an elevation or mitigates the effect of such a fall. Fixed ladder means 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. Grab bar means an individual horizontal or vertical handhold installed to provide access above the height of the ladder. Guardrail system means a barrier erected along an unprotected or exposed side, edge, or other area of a walkingworking surface to prevent employees from falling to a lower level. Handrail means a rail used to provide employees with a handhold for support. Hoist area means any elevated access opening to a walking-working surface through which equipment or materials are loaded or received. Hole means 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. Individual-rung ladder means a ladder that has rungs individually attached to a building or structure. An individual-rung ladder does not include manhole steps. Ladder means a device with rungs, steps, or cleats used to gain access to a different elevation. Ladder safety system means a system designed to eliminate or reduce the possibility of falling from a ladder. A ladder safety system usually consists of a carrier, safety sleeve, lanyard, connectors, and body harness. Cages and wells are not ladder safety systems. E:\FR\FM\18NOR7.SGM 18NOR7 srobinson on DSK5SPTVN1PROD with RULES6 82982 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations Low-slope roof means a roof that has a slope less than or equal to a ratio of 4 in 12 (vertical to horizontal). Lower level means a surface or area to which an employee could fall. Such surfaces or areas include, but are not limited to, ground levels, floors, roofs, ramps, runways, excavations, pits, tanks, materials, water, equipment, and similar surfaces and structures, or portions thereof. Manhole steps means steps that are individually attached to, or set into, the wall of a manhole structure. Maximum intended load means 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. Mobile means manually propelled or moveable. Mobile ladder stand (ladder stand) means a mobile, fixed-height, selfsupporting ladder that usually consists of wheels or casters on a rigid base and steps leading to a top step. A mobile ladder stand also may have handrails and is designed for use by one employee at a time. Mobile ladder stand platform means a mobile, fixed-height, self-supporting unit having one or more standing platforms that are provided with means of access or egress. Open riser means the gap or space between treads of stairways that do not have upright or inclined members (risers). Opening means a gap or open space in a wall, partition, vertical walkingworking surface, or similar surface that is at least 30 inches (76 cm) high and at least 18 inches (46 cm) wide, through which an employee can fall to a lower level. Personal fall arrest system means a system used to arrest an employee in a fall from a walking-working surface. It consists of a body harness, anchorage, and connector. The means of connection may include a lanyard, deceleration device, lifeline, or a suitable combination of these. Personal fall protection system means a system (including all components) an employer uses to provide protection from falling or to safely arrest an employee’s fall if one occurs. Examples of personal fall protection systems include personal fall arrest systems, positioning systems, and travel restraint systems. Platform means a walking-working surface that is elevated above the surrounding area. Portable ladder means a ladder that can readily be moved or carried, and VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 usually consists of side rails joined at intervals by steps, rungs, or cleats. Positioning system (work-positioning system) 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.’’ 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. Ramp means an inclined walkingworking surface used to access another level. Riser means the upright (vertical) or inclined member of a stair that is located at the back of a stair tread or platform and connects close to the front edge of the next higher tread, platform, or landing. Rope descent system means a suspension system that allows an employee to descend in a controlled manner and, as needed, stop at any point during the descent. A rope descent system usually consists of a roof anchorage, support rope, a descent device, carabiner(s) or shackle(s), and a chair (seatboard). A rope descent system also is called controlled descent equipment or apparatus. Rope descent systems do not include industrial rope access systems. Rung, step, or cleat means the crosspiece of a ladder on which an employee steps to climb up and down. Runway means an elevated walkingworking surface, such as a catwalk, a foot walk along shafting, or an elevated walkway between buildings. Scaffold means any temporary elevated or suspended platform and its supporting structure, including anchorage points, used to support employees, equipment, materials, and other items. For purposes of this subpart, a scaffold does not include a crane-suspended or derrick-suspended personnel platform or a rope descent system. Ship stair (ship ladder) means 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. Side-step ladder means a type of fixed ladder that requires an employee to step sideways from it in order to reach a walking-working surface, such as a landing. PO 00000 Frm 00490 Fmt 4701 Sfmt 4700 Spiral stairs means a series of treads attached to a vertical pole in a winding fashion, usually within a cylindrical space. Stair rail or stair rail system means a barrier erected along the exposed or open side of stairways to prevent employees from falling to a lower level. Stairway (stairs) means risers and treads that connect one level with another, and includes any landings and platforms in between those levels. Stairways include standard, spiral, alternating tread-type, and ship stairs. Standard stairs means a fixed or permanently installed stairway. Ship, spiral, and alternating tread-type stairs are not considered standard stairs. Step bolt (pole step) means a bolt or rung attached at intervals along a structural member used for foot placement and as a handhold when climbing or standing. Stepladder means a self-supporting, portable ladder that has a fixed height, flat steps, and a hinged back. Stepstool means a self-supporting, portable ladder that has flat steps and side rails. For purposes of the final rule, stepstool includes only those ladders that have a fixed height, do not have a pail shelf, and do not exceed 32 inches (81 cm) in overall height to the top cap, although side rails may extend above the top cap. A stepstool is designed so an employee can climb and stand on all of the steps and the top cap. Through ladder means a type of fixed ladder that allows the employee to step through the side rails at the top of the ladder to reach a walking-working surface, such as a landing. Tieback means an attachment between an anchorage (e.g., structural member) and a supporting device (e.g., parapet clamp or cornice hook). Toeboard means a low protective barrier that is designed to prevent materials, tools, and equipment from falling to a lower level, and protect employees from falling. Travel restraint system means a combination of an anchorage, anchorage connector, lanyard (or other means of connection), and body support that an employer uses to eliminate the possibility of an employee going over the edge of a walking-working surface. Tread means a horizontal member of a stair or stairway, but does not include landings or platforms. Unprotected sides and edges mean 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. E:\FR\FM\18NOR7.SGM 18NOR7 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations Walking-working surface means any horizontal or vertical surface on or through which an employee walks, works, or gains access to a work area or workplace location. Warning line means 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. Well means a permanent, complete enclosure around a fixed ladder. srobinson on DSK5SPTVN1PROD with RULES6 § 1910.22 General requirements. (a) Surface conditions. The employer must ensure: (1) All places of employment, passageways, storerooms, service rooms, and walking-working surfaces are kept in a clean, orderly, and sanitary condition. (2) The floor of each workroom is maintained in a clean and, to the extent feasible, in a dry condition. When wet processes are used, drainage must be maintained and, to the extent feasible, dry standing places, such as false floors, platforms, and mats must be provided. (3) Walking-working surfaces are maintained free of hazards such as sharp or protruding objects, loose boards, corrosion, leaks, spills, snow, and ice. (b) Loads. The employer must ensure that each walking-working surface can support the maximum intended load for that surface. (c) Access and egress. The employer must provide, and ensure each employee uses, a safe means of access and egress to and from walking-working surfaces. (d) Inspection, maintenance, and repair. The employer must ensure: (1) Walking-working surfaces are inspected, regularly and as necessary, and maintained in a safe condition; (2) Hazardous conditions on walkingworking surfaces are corrected or repaired before an employee uses the walking-working surface again. If the correction or repair cannot be made immediately, the hazard must be guarded to prevent employees from using the walking-working surface until the hazard is corrected or repaired; and (3) When any correction or repair involves the structural integrity of the walking-working surface, a qualified person performs or supervises the correction or repair. § 1910.23 Ladders. (a) Application. The employer must ensure that each ladder used meets the requirements of this section. This section covers all ladders, except when the ladder is: VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 (1) Used in emergency operations such as firefighting, rescue, and tactical law enforcement operations, or training for these operations; or (2) Designed into or is an integral part of machines or equipment. (b) General requirements for all ladders. The employer must ensure: (1) Ladder rungs, steps, and cleats are parallel, level, and uniformly spaced when the ladder is in position for use; (2) Ladder rungs, steps, and cleats are spaced not less than 10 inches (25 cm) and not more than 14 inches (36 cm) apart, as measured between the centerlines of the rungs, cleats, and steps, except that: (i) Ladder rungs and steps in elevator shafts must be spaced not less than 6 inches (15 cm) apart and not more than 16.5 inches (42 cm) apart, as measured along the ladder side rails; and (ii) Fixed ladder rungs and steps on telecommunication towers must be spaced not more than 18 inches (46 cm) apart, measured between the centerlines of the rungs or steps; (3) Steps on stepstools are spaced not less than 8 inches (20 cm) apart and not more than 12 inches (30 cm) apart, as measured between the centerlines of the steps; (4) Ladder rungs, steps, and cleats have a minimum clear width of 11.5 inches (29 cm) on portable ladders and 16 inches (41 cm) (measured before installation of ladder safety systems) for fixed ladders, except that: (i) The minimum clear width does not apply to 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; (ii) Rungs and steps of manhole entry ladders that are supported by the manhole opening must have a minimum clear width of 9 inches (23 cm); (iii) Rungs and steps on rolling ladders used in telecommunication centers must have a minimum clear width of 8 inches (20 cm); and (iv) Stepstools have a minimum clear width of 10.5 inches (26.7 cm); (5) Wooden ladders are not coated with any material that may obscure structural defects; (6) Metal ladders are made with corrosion-resistant material or protected against corrosion; (7) Ladder surfaces are free of puncture and laceration hazards; (8) Ladders are used only for the purposes for which they were designed; (9) Ladders are inspected before initial use in each work shift, and more frequently as necessary, to identify any visible defects that could cause employee injury; (10) Any ladder with structural or other defects is immediately tagged PO 00000 Frm 00491 Fmt 4701 Sfmt 4700 82983 ‘‘Dangerous: Do Not Use’’ or with similar language in accordance with § 1910.145 and removed from service until repaired in accordance with § 1910.22(d), or replaced; (11) Each employee faces the ladder when climbing up or down it; (12) Each employee uses at least one hand to grasp the ladder when climbing up and down it; and (13) No employee carries any object or load that could cause the employee to lose balance and fall while climbing up or down the ladder. (c) Portable ladders. The employer must ensure: (1) 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; (2) Each stepladder or combination ladder used in a stepladder mode is equipped with a metal spreader or locking device that securely holds the front and back sections in an open position while the ladder is in use; (3) Ladders are not loaded beyond the maximum intended load; Note to paragraph (c)(3): The maximum intended load, as defined in § 1910.21(b), includes the total load (weight and force) of the employee and all tools, equipment, and materials being carried. (4) Ladders are used only on stable and level surfaces unless they are secured or stabilized to prevent accidental displacement; (5) No portable single rail ladders are used; (6) No ladder is moved, shifted, or extended while an employee is on it; (7) Ladders placed in locations such as passageways, doorways, or driveways where they can be displaced by other activities or traffic: (i) Are secured to prevent accidental displacement; or (ii) Are guarded by a temporary barricade, such as a row of traffic cones or caution tape, to keep the activities or traffic away from the ladder; (8) The cap (if equipped) and top step of a stepladder are not used as steps; (9) Portable ladders used on slippery surfaces are secured and stabilized; (10) The top of a non-self-supporting ladder is placed so that both side rails are supported, unless the ladder is equipped with a single support attachment; (11) Portable ladders used to gain access to an upper landing surface have side rails that extend at least 3 feet (0.9 m) above the upper landing surface (see Figure D–1 of this section); (12) Ladders and ladder sections are not tied or fastened together to provide E:\FR\FM\18NOR7.SGM 18NOR7 82984 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations (13) Ladders are not placed on boxes, barrels, or other unstable bases to obtain additional height. (d) Fixed ladders. The employer must ensure: (1) Fixed ladders are capable of supporting their maximum intended load; (2) The minimum perpendicular distance from the centerline of the steps or rungs, or grab bars, or both, to the nearest permanent object in back of the ladder is 7 inches (18 cm), except for elevator pit ladders, which have a minimum perpendicular distance of 4.5 inches (11 cm); (3) Grab bars do not protrude on the climbing side beyond the rungs of the ladder that they serve; (4) The side rails of through or sidestep ladders extend 42 inches (1.1 m) above the top of the access level or landing platform served by the ladder. For parapet ladders, the access level is: (i) The roof, if the parapet is cut to permit passage through the parapet; or (ii) The top of the parapet, if the parapet is continuous; (5) For through ladders, the steps or rungs are omitted from the extensions, and the side rails are flared to provide not less than 24 inches (61cm) and not more than 30 inches (76 cm) of clearance. When a ladder safety system is provided, the maximum clearance between side rails of the extension must not exceed 36 inches (91 cm); (6) For side-step ladders, the side rails, rungs, and steps must be continuous in the extension (see Figure D–2 of this section); (7) Grab bars extend 42 inches (1.1 m) above the access level or landing platforms served by the ladder; (8) The minimum size (cross-section) of grab bars is the same size as the rungs of the ladder. (9) When a fixed ladder terminates at a hatch (see Figure D–3 of this section), the hatch cover: (i) Opens with sufficient clearance to provide easy access to or from the ladder; and (ii) Opens at least 70 degrees from horizontal if the hatch is counterbalanced; (10) Individual-rung ladders are constructed to prevent the employee’s feet from sliding off the ends of the rungs (see Figure D–4 of this section); (11) Fixed ladders having a pitch greater than 90 degrees from the horizontal are not used; (12) The step-across distance from the centerline of the rungs or steps is: VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 PO 00000 Frm 00492 Fmt 4701 Sfmt 4700 (i) For through ladders, not less than 7 inches (18 cm) and not more than 12 inches (30 cm) to the nearest edge of the structure, building, or equipment accessed from the ladders; (ii) For side-step ladders, not less than 15 inches (38 cm) and not more than 20 inches (51 cm) to the access points of the platform edge; (13) Fixed ladders that do not have cages or wells have: (i) A clear width of at least 15 inches (38 cm) on each side of the ladder centerline to the nearest permanent object; and (ii) A minimum perpendicular distance of 30 inches (76 cm) from the centerline of the steps or rungs to the nearest object on the climbing side. When unavoidable obstructions are encountered, the minimum clearance at the obstruction may be reduced to 24 inches (61 cm), provided deflector plates are installed (see Figure D–5 of this section). Note to paragraph (d): Section 1910.28 establishes the employer’s duty to provide fall protection for employees on fixed ladders, and § 1910.29 specifies the criteria for fall protection systems for fixed ladders. E:\FR\FM\18NOR7.SGM 18NOR7 ER18NO16.346</GPH> srobinson on DSK5SPTVN1PROD with RULES6 added length unless they are specifically designed for such use; Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 82985 Figure D-2 -- Side-Step Fixed Ladder Sections Figure D-3 -Example of Counterbalanced Hatch Cover at Roof CM) tri~· !lfls.sECIJoN Figure D-4 -- Individual Rung Ladder VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 PO 00000 Frm 00493 Fmt 4701 Sfmt 4725 E:\FR\FM\18NOR7.SGM 18NOR7 ER18NO16.347</GPH> srobinson on DSK5SPTVN1PROD with RULES6 GEl!JEBJ,lliQ! Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations (e) Mobile ladder stands and mobile ladder stand platforms—(1) General requirements. The employer must ensure: (i) Mobile ladder stands and platforms have a step width of at least 16 inches (41 cm); (ii) The steps and platforms of mobile ladder stands and platforms are slip resistant. Slip-resistant surfaces must be either an integral part of the design and construction of the mobile ladder stand and platform, or provided as a secondary process or operation, such as dimpling, knurling, shotblasting, coating, spraying, or applying durable slip-resistant tapes; (iii) Mobile ladder stands and platforms are capable of supporting at least four times their maximum intended load; (iv) Wheels or casters under load are capable of supporting their proportional share of four times the maximum intended load, plus their proportional share of the unit’s weight; (v) Unless otherwise specified in this section, mobile ladder stands and platforms with a top step height of 4 feet (1.2 m) or above have handrails with a vertical height of 29.5 inches (75 cm) to 37 inches (94 cm), measured from the front edge of a step. Removable gates or non-rigid members, such as chains, may be used instead of handrails in specialuse applications; (vi) The maximum work-surface height of mobile ladder stands and platforms does not exceed four times the shortest base dimension, without additional support. For greater heights, outriggers, counterweights, or comparable means that stabilize the mobile ladder stands and platforms and prevent overturning must be used; VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 (vii) Mobile ladder stands and platforms that have wheels or casters are equipped with a system to impede horizontal movement when an employee is on the stand or platform; and (viii) No mobile ladder stand or platform moves when an employee is on it. (2) Design requirements for mobile ladder stands. The employer must ensure: (i) Steps are uniformly spaced and arranged, with a rise of not more than 10 inches (25 cm) and a depth of not less than 7 inches (18 cm). The slope of the step stringer to which the steps are attached must not be more than 60 degrees, measured from the horizontal; (ii) Mobile ladder stands with a top step height above 10 feet (3 m) have the top step protected on three sides by a handrail with a vertical height of at least 36 inches (91 cm); and top steps that are 20 inches (51 cm) or more, front to back, have a midrail and toeboard. Removable gates or non-rigid members, such as chains, may be used instead of handrails in special-use applications; and (iii) The standing area of mobile ladder stands is within the base frame. (3) Design requirements for mobile ladder stand platforms. The employer must ensure: (i) Steps of mobile ladder stand platforms meet the requirements of paragraph (e)(2)(i) of this section. When the employer demonstrates that the requirement is not feasible, steeper slopes or vertical rung ladders may be used, provided the units are stabilized to prevent overturning; (ii) Mobile ladder stand platforms with a platform height of 4 to 10 feet (1.2 m to 3 m) have, in the platform area, handrails with a vertical height of PO 00000 Frm 00494 Fmt 4701 Sfmt 4700 at least 36 inches (91 cm) and midrails; and (iii) All ladder stand platforms with a platform height above 10 feet (3 m) have guardrails and toeboards on the exposed sides and ends of the platform. (iv) Removable gates or non-rigid members, such as chains, may be used on mobile ladder stand platforms instead of handrails and guardrails in special-use applications. § 1910.24 Step bolts and manhole steps. (a) Step bolts. The employer must ensure: (1) Each step bolt installed on or after January 17, 2017 in an environment where corrosion may occur is constructed of, or coated with, material that protects against corrosion; (2) Each step bolt is designed, constructed, and maintained to prevent the employee’s foot from slipping off the end of the step bolt; (3) Step bolts are uniformly spaced at a vertical distance of not less than 12 inches (30 cm) and not more than 18 inches (46 cm) apart, measured center to center (see Figure D–6 of this section). The spacing from the entry and exit surface to the first step bolt may differ from the spacing between the other step bolts; (4) Each step bolt has a minimum clear width of 4.5 inches (11 cm); (5) The minimum perpendicular distance between the centerline of each step bolt to the nearest permanent object in back of the step bolt is 7 inches (18 cm). When the employer demonstrates that an obstruction cannot be avoided, the distance must be at least 4.5 inches (11 cm); (6) Each step bolt installed before January 17, 2017 is capable of supporting its maximum intended load; E:\FR\FM\18NOR7.SGM 18NOR7 ER18NO16.348</GPH> srobinson on DSK5SPTVN1PROD with RULES6 82986 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 82987 (8) Each step bolt is inspected at the start of the workshift and maintained in accordance with § 1910.22; and (9) Any step bolt that is bent more than 15 degrees from the perpendicular in any direction is removed and replaced with a step bolt that meets the requirements of this section before an employee uses it. (b) Manhole steps. (1) The employer must ensure that each manhole step is capable of supporting its maximum intended load. (2) The employer must ensure that each manhole step installed on or after January 17, 2017: (i) Has a corrugated, knurled, dimpled, or other surface that minimizes the possibility of an employee slipping; (ii) Is constructed of, or coated with, material that protects against corrosion if the manhole step is located in an environment where corrosion may occur; (iii) Has a minimum clear step width of 10 inches (25 cm); (iv) Is uniformly spaced at a vertical distance not more than 16 inches (41 cm) apart, measured center to center between steps. The spacing from the entry and exit surface to the first manhole step may differ from the spacing between the other steps. (v) Has a minimum perpendicular distance between the centerline of the manhole step to the nearest permanent object in back of the step of at least 4.5 inches (11 cm); and (vi) Is designed, constructed, and maintained to prevent the employee’s foot from slipping or sliding off the end. (3) The employer must ensure that each manhole step is inspected at the start of the work shift and maintained in accordance with § 1910.22. gate does not reduce the platform’s effective usable depth to: (i) Less than 20 inches (51 cm) for platforms installed before January 17, 2017; and (ii) Less than 22 inches (56 cm) for platforms installed on or after January 17, 2017 (see Figure D–7 of this section); (6) Each stair can support at least five times the normal anticipated live load, but never less than a concentrated load of 1,000 pounds (454 kg) applied at any point; (7) Standard stairs are used to provide access from one walking-working surface to another when operations necessitate regular and routine travel between levels, including access to operating platforms for equipment. Winding stairways may be used on tanks and similar round structures when the diameter of the tank or structure is at least 5 feet (1.5 m). (8) Spiral, ship, or alternating treadtype stairs are used only when the employer can demonstrate that it is not feasible to provide standard stairs. (9) When paragraph (b)(8) of this section allows the use of spiral, ship, or alternating tread-type stairs, they are installed, used, and maintained in accordance with manufacturer’s instructions. VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 § 1910.25 Stairways. (a) Application. This section covers all stairways (including standard, spiral, ship, and alternating tread-type stairs), except for stairs serving floating roof tanks, stairs on scaffolds, stairs designed into machines or equipment, and stairs on self-propelled motorized equipment. (b) General requirements. The employer must ensure: (1) Handrails, stair rail systems, and guardrail systems are provided in accordance with § 1910.28; (2) Vertical clearance above any stair tread to any overhead obstruction is at least 6 feet, 8 inches (203 cm), as measured from the leading edge of the tread. Spiral stairs must meet the vertical clearance requirements in paragraph (d)(3) of this section. (3) Stairs have uniform riser heights and tread depths between landings; (4) Stairway landings and platforms are at least the width of the stair and at least 30 inches (76 cm) in depth, as measured in the direction of travel; (5) When a door or a gate opens directly on a stairway, a platform is provided, and the swing of the door or PO 00000 Frm 00495 Fmt 4701 Sfmt 4700 E:\FR\FM\18NOR7.SGM 18NOR7 ER18NO16.349</GPH> srobinson on DSK5SPTVN1PROD with RULES6 (7) Each step bolt installed on or after January 17, 2017 is capable of supporting at least four times its maximum intended load; 82988 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations standard stairs installed prior to January 17, 2017. OSHA will deem those stairs in compliance if they meet the dimension requirements specified in Table D–1 of this section or they use a combination that achieves the angle requirements of paragraph (c)(1) of this section. ER18NO16.351</GPH> (3) Have a minimum tread depth of 9.5 inches (24 cm); and (4) Have a minimum width of 22 inches (56 cm) between vertical barriers (see Figure D–8 of this section). (5) Exception to paragraphs (c)(2) and (3) of this section. The requirements of paragraphs (c)(2) and (3) do not apply to VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 PO 00000 Frm 00496 Fmt 4701 Sfmt 4725 E:\FR\FM\18NOR7.SGM 18NOR7 ER18NO16.350</GPH> srobinson on DSK5SPTVN1PROD with RULES6 (c) Standard stairs. In addition to paragraph (b) of this section, the employer must ensure standard stairs: (1) Are installed at angles between 30 to 50 degrees from the horizontal; (2) Have a maximum riser height of 9.5 inches (24 cm); Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 82989 (2) Have open risers with a vertical rise between tread surfaces of 6.5 to 12 inches (17 to 30 cm); (3) Have minimum tread depth of 4 inches (10 cm); and (4) Have a minimum tread width of 18 inches (46 cm). (f) Alternating tread-type stairs. In addition to paragraph (b) of this section, the employer must ensure alternating tread-type stairs: (1) Have a series of treads installed at a slope of 50 to 70 degrees from the horizontal; (2) Have a distance between handrails of 17 to 24 inches (51 to 61 cm); (3) Have a minimum tread depth of 8.5 inches (22 cm); and (4) Have open risers if the tread depth is less than 9.5 inches (24 cm); (5) Have a minimum tread width of 7 inches (18 cm), measured at the leading edge of the tread (i.e., nosing). VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 PO 00000 Frm 00497 Fmt 4701 Sfmt 4700 E:\FR\FM\18NOR7.SGM 18NOR7 ER18NO16.353</GPH> (4) Have a minimum tread depth of 7.5 inches (19 cm), measured at a point 12 inches (30 cm) from the narrower edge; (5) Have a uniform tread size; (e) Ship stairs. In addition to paragraph (b) of this section, the employer must ensure ship stairs (see Figure D–9 of this section): (1) Are installed at a slope of 50 to 70 degrees from the horizontal; ER18NO16.352</GPH> srobinson on DSK5SPTVN1PROD with RULES6 (d) Spiral stairs. In addition to paragraph (b) of this section, the employer must ensure spiral stairs: (1) Have a minimum clear width of 26 inches (66 cm); (2) Have a maximum riser height of 9.5 inches (24 cm); (3) Have a minimum headroom above spiral stair treads of at least 6 feet, 6 inches (2 m), measured from the leading edge of the tread; 82990 Dockboards. The employer must ensure that each dockboard used meets the requirements of this section. The employer must ensure: (a) Dockboards are capable of supporting the maximum intended load in accordance with § 1910.22(b); (b)(1) Dockboards put into initial service on or after January 17, 2017 are designed, constructed, and maintained to prevent transfer vehicles from running off the dockboard edge; (2) Exception to paragraph (b)(1) of this section. When the employer demonstrates there is no hazard of transfer vehicles running off the dockboard edge, the employer may use dockboards that do not have run-off protection. (c) Portable dockboards are secured by anchoring them in place or using equipment or devices that prevent the dockboard from moving out of a safe position. When the employer VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 demonstrates that securing the dockboard is not feasible, the employer must ensure there is sufficient contact between the dockboard and the surface to prevent the dockboard from moving out of a safe position; (d) Measures, such as wheel chocks or sand shoes, are used to prevent the transport vehicle (e.g. a truck, semitrailer, trailer, or rail car) on which a dockboard is placed, from moving while employees are on the dockboard; and (e) Portable dockboards are equipped with handholds or other means to permit safe handling of dockboards. § 1910.27 systems. Scaffolds and rope descent (a) Scaffolds. Scaffolds used in general industry must meet the requirements in 29 CFR part 1926, subpart L (Scaffolds). (b) Rope descent systems—(1) Anchorages. (i) Before any rope descent system is used, the building owner must PO 00000 Frm 00498 Fmt 4701 Sfmt 4700 inform 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 (268 kg), in any direction, for each employee attached. The information must be based on an annual inspection by a qualified person and certification of each anchorage by a qualified person, as necessary, and at least every 10 years. (ii) The employer must ensure that no employee uses any anchorage before the employer has obtained written information from the building owner that each anchorage meets the requirements of paragraph (b)(1)(i) of this section. The employer must keep the information for the duration of the job. (iii) The requirements in paragraphs (b)(1)(i) and (ii) of this section must be implemented no later than November 20, 2017. E:\FR\FM\18NOR7.SGM 18NOR7 ER18NO16.354</GPH> srobinson on DSK5SPTVN1PROD with RULES6 § 1910.26 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations srobinson on DSK5SPTVN1PROD with RULES6 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations (2) Use of rope descent systems. The employer must ensure: (i) No rope descent system is used for heights greater than 300 feet (91 m) above grade unless the employer demonstrates that it is not feasible to access such heights by any other means or that those means pose a greater hazard than using a rope descent system; (ii) The rope descent system is used in accordance with instructions, warnings, and design limitations set by the manufacturer or under the direction of a qualified person; (iii) Each employee who uses the rope descent system is trained in accordance with § 1910.30; (iv) The rope descent system is inspected at the start of each workshift that it is to be used. The employer must ensure damaged or defective equipment is removed from service immediately and replaced; (v) The rope descent system has proper rigging, including anchorages and tiebacks, with particular emphasis on providing tiebacks when counterweights, cornice hooks, or similar non-permanent anchorages are used; (vi) Each employee uses a separate, independent personal fall arrest system that meets the requirements of subpart I of this part; (vii) All components of each rope descent system, except seat boards, are capable of sustaining a minimum rated load of 5,000 pounds (22.2 kN). Seat boards must be capable of supporting a live load of 300 pounds (136 kg); (viii) Prompt rescue of each employee is provided in the event of a fall; (ix) The ropes of each rope descent system are effectively padded or otherwise protected, where they can contact edges of the building, anchorage, obstructions, or other surfaces, to prevent them from being cut or weakened; (x) Stabilization is provided at the specific work location when descents are greater than 130 feet (39.6 m); (xi) No employee uses a rope descent system when hazardous weather conditions, such as storms or gusty or excessive wind, are present; (xii) Equipment, such as tools, squeegees, or buckets, is secured by a tool lanyard or similar method to prevent it from falling; and (xiii) The ropes of each rope descent system are protected from exposure to open flames, hot work, corrosive chemicals, and other destructive conditions. VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 § 1910.28 Duty to have fall protection and falling object protection. (a) General. (1) This section requires employers to provide protection for each employee exposed to fall and falling object hazards. Unless stated otherwise, the employer must ensure that all fall protection and falling object protection required by this section meet the criteria in § 1910.29, except that personal fall protection systems required by this section meet the criteria of § 1910.140. (2) This section does not apply: (i) To portable ladders; (ii) When employers are inspecting, investigating, or assessing workplace conditions or work to be performed prior to the start of work or after all work has been completed. This exemption does not apply when fall protection systems or equipment meeting the requirements of § 1910.29 have been installed and are available for workers to use for pre-work and postwork inspections, investigations, or assessments; (iii) To fall hazards presented by the exposed perimeters of entertainment stages and the exposed perimeters of rail-station platforms; (iv) To powered platforms covered by § 1910.66(j); (v) To aerial lifts covered by § 1910.67(c)(2)(v); (vi) To telecommunications work covered by § 1910.268(n)(7) and (8); and (vii) To electric power generation, transmission, and distribution work covered by § 1910.269(g)(2)(i). (b) Protection from fall hazards—(1) Unprotected sides and edges. (i) Except as provided elsewhere in this section, the employer must ensure that each employee on a walking-working surface with an unprotected side or edge that is 4 feet (1.2 m) or more above a lower level is protected from falling by one or more of the following: (A) Guardrail systems; (B) Safety net systems; or (C) Personal fall protection systems, such as personal fall arrest, travel restraint, or positioning systems. (ii) When the employer can demonstrate that it is not feasible or creates a greater hazard to use guardrail, safety net, or personal fall protection systems on residential roofs, the employer must develop and implement a fall protection plan that meets the requirements of 29 CFR 1926.502(k) and training that meets the requirements of 29 CFR 1926.503(a) and (c). Note to paragraph (b)(1)(ii) of this section: There is a presumption that it is feasible and will not create a greater hazard to use at least one of the above-listed fall protection systems specified in paragraph (b)(1)(i) of PO 00000 Frm 00499 Fmt 4701 Sfmt 4700 82991 this section. Accordingly, the employer has the burden of establishing that it is not feasible or creates a greater hazard to provide the fall protection systems specified in paragraph (b)(1)(i) and that it is necessary to implement a fall protection plan that complies with § 1926.502(k) in the particular work operation, in lieu of implementing any of those systems. (iii) When the employer can demonstrate that the use of fall protection systems is not feasible on the working side of a platform used at a loading rack, loading dock, or teeming platform, the work may be done without a fall protection system, provided: (A) The work operation for which fall protection is infeasible is in process; (B) Access to the platform is limited to authorized employees; and, (C) The authorized employees are trained in accordance with § 1910.30. (2) Hoist areas. The employer must ensure: (i) Each employee in a hoist area is protected from falling 4 feet (1.2 m) or more to a lower level by: (A) A guardrail system; (B) A personal fall arrest system; or (C) A travel restraint system. (ii) When any portion of a guardrail system, gate, or chains is removed, and an employee must lean through or over the edge of the access opening to facilitate hoisting, the employee is protected from falling by a personal fall arrest system. (iii) If grab handles are installed at hoist areas, they meet the requirements of § 1910.29(l). (3) Holes. The employer must ensure: (i) Each employee is protected from falling through any hole (including skylights) that is 4 feet (1.2 m) or more above a lower level by one or more of the following: (A) Covers; (B) Guardrail systems; (C) Travel restraint systems; or (D) Personal fall arrest systems. (ii) Each employee is protected from tripping into or stepping into or through any hole that is less than 4 feet (1.2 m) above a lower level by covers or guardrail systems. (iii) Each employee is protected from falling into a stairway floor hole by a fixed guardrail system on all exposed sides, except at the stairway entrance. However, for any stairway used less than once per day where traffic across the stairway floor hole prevents the use of a fixed guardrail system (e.g., holes located in aisle spaces), the employer may protect employees from falling into the hole by using a hinged floor hole cover that meets the criteria in § 1910.29 and a removable guardrail system on all exposed sides, except at the entrance to the stairway. E:\FR\FM\18NOR7.SGM 18NOR7 srobinson on DSK5SPTVN1PROD with RULES6 82992 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations (iv) Each employee is protected from falling into a ladderway floor hole or ladderway platform hole by a guardrail system and toeboards erected on all exposed sides, except at the entrance to the hole, where a self-closing gate or an offset must be used. (v) Each employee is protected from falling through a hatchway and chutefloor hole by: (A) A hinged floor-hole cover that meets the criteria in § 1910.29 and a fixed guardrail system that leaves only one exposed side. When the hole is not in use, the employer must ensure the cover is closed or a removable guardrail system is provided on the exposed sides; (B) 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 is kept in place when the hole is not in use; or (C) A guardrail system or a travel restraint system when a work operation necessitates passing material through a hatchway or chute floor hole. (4) Dockboards. (i) The employer must ensure that each employee on a dockboard is protected from falling 4 feet (1.2 m) or more to a lower level by a guardrail system or handrails. (ii) A guardrail system or handrails are not required when: (A) Dockboards are being used solely for materials-handling operations using motorized equipment; (B) Employees engaged in these operations are not exposed to fall hazards greater than 10 feet (3 m); and (C) Those employees have been trained in accordance with § 1910.30. (5) Runways and similar walkways. (i) The employer must ensure each employee on a runway or similar walkway is protected from falling 4 feet (1.2 m) or more to a lower level by a guardrail system. (ii) When the employer can demonstrate that it is not feasible to have guardrails on both sides of a runway used exclusively for a special purpose, the employer may omit the guardrail on one side of the runway, provided the employer ensures: (A) The runway is at least 18 inches (46 cm) wide; and (B) Each employee is provided with and uses a personal fall arrest system or travel restraint system. (6) Dangerous equipment. The employer must ensure: (i) Each employee less than 4 feet (1.2 m) above dangerous equipment is protected from falling into or onto the dangerous equipment by a guardrail system or a travel restraint system, VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 unless the equipment is covered or guarded to eliminate the hazard. (ii) Each employee 4 feet (1.2 m) or more above dangerous equipment must be protected from falling by: (A) Guardrail systems; (B) Safety net systems; (C) Travel restraint systems; or (D) Personal fall arrest systems. (7) Openings. The employer must ensure that each employee on a walking-working surface near an opening, including one with a chute attached, where the inside bottom edge of the opening is less than 39 inches (99 cm) above that walking-working surface and the outside bottom edge of the opening is 4 feet (1.2 m) or more above a lower level is protected from falling by the use of: (i) Guardrail systems; (ii) Safety net systems; (iii) Travel restraint systems; or, (iv) Personal fall arrest systems. (8) Repair pits, service pits, and assembly pits less than 10 feet in depth. The use of a fall protection system is not required for a repair pit, service pit, or assembly pit that is less than 10 feet (3 m) deep, provided the employer: (i) Limits access within 6 feet (1.8 m) of the edge of the pit to authorized employees trained in accordance with § 1910.30; (ii) Applies floor markings at least 6 feet (1.8 m) from the edge of the pit in colors that contrast with the surrounding area; or places a warning line at least 6 feet (1.8 m) from the edge of the pit as well as stanchions that are capable of resisting, without tipping over, a force of at least 16 pounds (71 N) applied horizontally against the stanchion at a height of 30 inches (76 cm); or places a combination of floor markings and warning lines at least 6 feet (1.8 m) from the edge of the pit. When two or more pits in a common area are not more than 15 feet (4.5m) apart, the employer may comply by placing contrasting floor markings at least 6 feet (1.8 m) from the pit edge around the entire area of the pits; and (iii) Posts readily visible caution signs that meet the requirements of § 1910.145 and state ‘‘Caution—Open Pit.’’ (9) Fixed ladders (that extend more than 24 feet (7.3 m) above a lower level). (i) For fixed ladders that extend more than 24 feet (7.3 m) above a lower level, the employer must ensure: (A) Existing fixed ladders. Each fixed ladder installed before November 19, 2018 is equipped with a personal fall arrest system, ladder safety system, cage, or well; (B) New fixed ladders. Each fixed ladder installed on and after November 19, 2018, is equipped with a personal PO 00000 Frm 00500 Fmt 4701 Sfmt 4700 fall arrest system or a ladder safety system; (C) Replacement. 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; and (D) Final deadline. On and after November 18, 2036, all fixed ladders are equipped with a personal fall arrest system or a ladder safety system. (ii) When a one-section fixed ladder is equipped with a personal fall protection or a ladder safety system or a fixed ladder is equipped with a personal fall arrest or ladder safety system on more than one section, the employer must ensure: (A) The personal fall arrest system or ladder safety system provides protection throughout the entire vertical distance of the ladder, including all ladder sections; and (B) The ladder has rest platforms provided at maximum intervals of 150 feet (45.7 m). (iii) The employer must ensure ladder sections having a cage or well: (A) Are offset from adjacent sections; and (B) Have landing platforms provided at maximum intervals of 50 feet (15.2 m). (iv) The employer may use a cage or well in combination with a personal fall arrest system or ladder safety system provided that the cage or well does not interfere with the operation of the system. (10) Outdoor advertising (billboards). (i) The requirements in paragraph (b)(9) of this section, and other requirements in subparts D and I of this part, apply to fixed ladders used in outdoor advertising activities. (ii) When an employee engaged in outdoor advertising climbs a fixed ladder before November 19, 2018 that is not equipped with a cage, well, personal fall arrest system, or a ladder safety system the employer must ensure the employee: (A) Receives training and demonstrates the physical capability to perform the necessary climbs in accordance with § 1910.29(h); (B) Wears a body harness equipped with an 18-inch (46 cm) rest lanyard; (C) Keeps both hands free of tools or material when climbing on the ladder; and (D) Is protected by a fall protection system upon reaching the work position. (11) Stairways. The employer must ensure: (i) Each employee exposed to an unprotected side or edge of a stairway E:\FR\FM\18NOR7.SGM 18NOR7 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 82993 (ii) Each flight of stairs having at least 3 treads and at least 4 risers is equipped with stair rail systems and handrails as follows: (iii) Each ship stairs and alternating tread type stairs is equipped with handrails on both sides. (12) Scaffolds and rope descent systems. The employer must ensure: (i) Each employee on a scaffold is protected from falling in accordance 29 CFR part 1926, subpart L; and (ii) Each employee using a rope descent system 4 feet (1.2 m) or more above a lower level is protected from falling by a personal fall arrest system. (13) Work on low-slope roofs. (i) When work is performed less than 6 feet (1.6 m) from the roof edge, the employer must ensure each employee is protected from falling by a guardrail system, safety net system, travel restraint system, or personal fall arrest system. (ii) When work is performed at least 6 feet (1.6 m) but less than 15 feet (4.6 m) from the roof edge, the employer must ensure each employee is protected from falling by using a guardrail system, safety net system, travel restraint system, or personal fall arrest system. The employer may use a designated area when performing work that is both infrequent and temporary. (iii) When work is performed 15 feet (4.6 m) or more from the roof edge, the employer must: (A) Protect each employee from falling by a guardrail system, safety net system, travel restraint system, or personal fall arrest system or a designated area. The employer is not required to provide any fall protection, provided the work is both infrequent and temporary; and (B) Implement and enforce a work rule prohibiting employees from going within 15 feet (4.6 m) of the roof edge without using fall protection in accordance with paragraphs (b)(13)(i) and (ii) of this section. (14) Slaughtering facility platforms. (i) The employer must protect each employee on the unprotected working side of a slaughtering facility platform that is 4 feet (1.2 m) or more above a lower level from falling by using: (A) Guardrail systems; or (B) Travel restraint systems. (ii) When the employer can demonstrate the use of a guardrail or travel restraint system is not feasible, the work may be done without those systems provided: (A) The work operation for which fall protection is infeasible is in process; (B) Access to the platform is limited to authorized employees; and (C) The authorized employees are trained in accordance with § 1910.30. (15) Walking-working surfaces not otherwise addressed. Except as provided elsewhere in this section or by other subparts of this part, the employer must VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 PO 00000 Frm 00501 Fmt 4701 Sfmt 4700 E:\FR\FM\18NOR7.SGM 18NOR7 ER18NO16.355</GPH> srobinson on DSK5SPTVN1PROD with RULES6 landing that is 4 feet (1.2 m) or more above a lower level is protected by a guardrail or stair rail system; 82994 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations ensure each employee on a walkingworking surface 4 feet (1.2 m) or more above a lower level is protected from falling by: (i) Guardrail systems; (ii) Safety net systems; or (iii) Personal fall protection systems, such as personal fall arrest, travel restraint, or positioning systems. (c) Protection from falling objects. When an employee is exposed to falling objects, the employer must ensure that each employee wears head protection that meets the requirements of subpart I of this part. In addition, the employer must protect employees from falling objects by implementing one or more of the following: (1) Erecting toeboards, screens, or guardrail systems to prevent objects from falling to a lower level; (2) 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; or (3) Barricading the area into which objects could fall, prohibiting employees from entering the barricaded area, and keeping objects far enough from an edge or opening to prevent them from falling to a lower level. § 1910.29 Fall protection systems and falling object protection—criteria and practices. srobinson on DSK5SPTVN1PROD with RULES6 (a) General requirements. The employer must: (1) Ensure each fall protection system and falling object protection, other than personal fall protection systems, that this part requires meets the requirements in this section. The employer must ensure each personal fall protection system meets the requirements in subpart I of this part; and (2) Provide and install all fall protection systems and falling object protection this subpart requires, and comply with the other requirements in this subpart before any employee begins work that necessitates fall or falling object protection. (b) Guardrail systems. The employer must ensure guardrail systems meet the following requirements: (1) The top edge height of top rails, or equivalent guardrail system members, are 42 inches (107 cm), plus or minus VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 3 inches (8 cm), above the walkingworking surface. The top edge height may exceed 45 inches (114 cm), provided the guardrail system meets all other criteria of paragraph (b) of this section (see Figure D–11 of this section). (2) Midrails, screens, mesh, intermediate vertical members, solid panels, or equivalent intermediate members are installed between the walking-working surface and the top edge of the guardrail system as follows when there is not a wall or parapet that is at least 21 inches (53 cm) high: (i) Midrails are installed at a height midway between the top edge of the guardrail system and the walkingworking surface; (ii) Screens and mesh extend from the walking-working surface to the top rail and along the entire opening between top rail supports; (iii) Intermediate vertical members (such as balusters) are installed no more than 19 inches (48 cm) apart; and (iv) Other equivalent intermediate members (such as additional midrails and architectural panels) are installed so that the openings are not more than 19 inches (48 cm) wide. (3) Guardrail systems are capable of withstanding, without failure, a force of at least 200 pounds (890 N) applied in a downward or outward direction within 2 inches (5 cm) of the top edge, at any point along the top rail. (4) When the 200-pound (890–N) test load is applied in a downward direction, the top rail of the guardrail system must not deflect to a height of less than 39 inches (99 cm) above the walking-working surface. (5) Midrails, screens, mesh, intermediate vertical members, solid panels, and other equivalent intermediate members are capable of withstanding, without failure, a force of at least 150 pounds (667 N) applied in any downward or outward direction at any point along the intermediate member. (6) Guardrail systems are smoothsurfaced to protect employees from injury, such as punctures or lacerations, and to prevent catching or snagging of clothing. (7) The ends of top rails and midrails do not overhang the terminal posts, except where the overhang does not pose a projection hazard for employees. PO 00000 Frm 00502 Fmt 4701 Sfmt 4700 (8) Steel banding and plastic banding are not used for top rails or midrails. (9) Top rails and midrails are at least 0.25-inches (0.6 cm) in diameter or in thickness. (10) When guardrail systems are used at hoist areas, a removable guardrail section, consisting of a top rail and midrail, are placed across the access opening between guardrail sections when employees are not performing hoisting operations. The employer may use chains or gates instead of a removable guardrail section at hoist areas if the employer demonstrates the chains or gates provide a level of safety equivalent to guardrails. (11) When guardrail systems are used around holes, they are installed on all unprotected sides or edges of the hole. (12) For guardrail systems used around holes through which materials may be passed: (i) When materials are being passed through the hole, not more than two sides of the guardrail system are removed; and (ii) When materials are not being passed through the hole, the hole must be guarded by a guardrail system along all unprotected sides or edges or closed over with a cover. (13) When guardrail systems are used around holes that serve as points of access (such as ladderways), the guardrail system opening: (i) Has a self-closing gate that slides or swings away from the hole, and is equipped with a top rail and midrail or equivalent intermediate member that meets the requirements in paragraph (b) of this section; or (ii) Is offset to prevent an employee from walking or falling into the hole; (14) Guardrail systems on ramps and runways are installed along each unprotected side or edge. (15) Manila or synthetic rope used for top rails or midrails are inspected as necessary to ensure that the rope continues to meet the strength requirements in paragraphs (b)(3) and (5) of this section. Note to paragraph (b) of this section: The criteria and practices requirements for guardrail systems on scaffolds are contained in 29 CFR part 1926, subpart L. E:\FR\FM\18NOR7.SGM 18NOR7 (c) Safety net systems. The employer must ensure each safety net system meets the requirements in 29 CFR part 1926, subpart M. (d) Designated areas. (1) When the employer uses a designated area, the employer must ensure: (i) Employees remain within the designated area while work operations are underway; and (ii) The perimeter of the designated area is delineated with a warning line consisting of a rope, wire, tape, or chain that meets the requirements of paragraphs (d)(2) and (3) of this section. (2) The employer must ensure each warning line: (i) Has a minimum breaking strength of 200 pounds (0.89 kN); (ii) Is installed so its lowest point, including sag, is not less than 34 inches (86 cm) and not more than 39 inches (99 cm) above the walking-working surface; (iii) Is supported in such a manner that pulling on one section of the line will not result in slack being taken up in adjacent sections causing the line to fall below the limits specified in paragraph (d)(2)(ii) of this section; (iv) Is clearly visible from a distance of 25 feet (7.6 m) away, and anywhere within the designated area; (v) Is erected as close to the work area as the task permits; and (vi) Is erected 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. (3) When mobile mechanical equipment is used to perform work that is both temporary and infrequent in a VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 designated area, the employer must ensure the warning line is erected not less than 6 feet (1.8 m) from the unprotected side or edge that is parallel to the direction in which the mechanical equipment is operated, and not less than 10 feet (3 m) from the unprotected side or edge that is perpendicular to the direction in which the mechanical equipment is operated. (e) Covers. The employer must ensure each cover for a hole in a walkingworking surface: (1) Is capable of supporting without failure, at least twice the maximum intended load that may be imposed on the cover at any one time; and (2) Is secured to prevent accidental displacement. (f) Handrails and stair rail systems. The employer must ensure: (1) Height criteria. (i) Handrails are not less than 30 inches (76 cm) and not more than 38 inches (97 cm), as measured from the leading edge of the stair tread to the top surface of the handrail (see Figure D–12 of this section). (ii) The height of stair rail systems meets the following: (A) The height of stair rail systems installed before January 17, 2017 is not less than 30 inches (76 cm) from the leading edge of the stair tread to the top surface of the top rail; and (B) The height of stair rail systems installed on or after January 17, 2017 is not less than 42 inches (107 cm) from the leading edge of the stair tread to the top surface of the top rail. PO 00000 Frm 00503 Fmt 4701 Sfmt 4700 82995 (iii) The top rail of a stair rail system may serve as a handrail only when: (A) The height of the stair rail system is not less than 36 inches (91 cm) and not more than 38 inches (97 cm) as measured at the leading edge of the stair tread to the top surface of the top rail (see Figure D–13 of this section); and (B) The top rail of the stair rail system meets the other handrail requirements in paragraph (f) of this section. (2) Finger clearance. The minimum clearance between handrails and any other object is 2.25 inches (5.7 cm). (3) Surfaces. Handrails and stair rail systems are smooth-surfaced to protect employees from injury, such as punctures or lacerations, and to prevent catching or snagging of clothing. (4) Openings in stair rails. No opening in a stair rail system exceeds 19 inches (48 cm) at its least dimension. (5) Handhold. Handrails have the shape and dimension necessary so that employees can grasp the handrail firmly. (6) Projection hazards. The ends of handrails and stair rail systems do not present any projection hazards. (7) Strength criteria. Handrails and the top rails of stair rail systems are capable of withstanding, without failure, a force of at least 200 pounds (890 N) applied in any downward or outward direction within 2 inches (5 cm) of any point along the top edge of the rail. BILLING CODE 4510–29–P E:\FR\FM\18NOR7.SGM 18NOR7 ER18NO16.356</GPH> srobinson on DSK5SPTVN1PROD with RULES6 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 82996 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations Figure D-13 – Combination Handrail and Stair Rail srobinson on DSK5SPTVN1PROD with RULES6 (g) Cages, wells, and platforms used with fixed ladders. The employer must ensure: (1) Cages and wells installed on fixed ladders are designed, constructed, and maintained to permit easy access to, and egress from, the ladder that they enclose (see Figures D–14 and D–15 of this section); VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 (2) Cages and wells are continuous throughout the length of the fixed ladder, except for access, egress, and other transfer points; (3) Cages and wells are designed, constructed, and maintained to contain employees in the event of a fall, and to direct them to a lower landing; and (4) Platforms used with fixed ladders provide a horizontal surface of at least PO 00000 Frm 00504 Fmt 4701 Sfmt 4700 24 inches by 30 inches (61 cm by 76 cm). Note to paragraph (g): Section 1910.28 establishes the requirements that employers must follow on the use of cages and wells as a means of fall protection. E:\FR\FM\18NOR7.SGM 18NOR7 ER18NO16.357</GPH> BILLING CODE 4510–29–C VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 (i) Ladder safety systems. The employer must ensure: (1) Each ladder safety system allows the employee to climb up and down using both hands and does not require that the employee continuously hold, push, or pull any part of the system while climbing; (2) The connection between the carrier or lifeline and the point of attachment to the body harness or belt does not exceed 9 inches (23 cm); (3) Mountings for rigid carriers are attached at each end of the carrier, with intermediate mountings spaced, as necessary, along the entire length of the carrier so the system has the strength to stop employee falls; (4) Mountings for flexible carriers are attached at each end of the carrier and cable guides for flexible carriers are installed at least 25 feet (7.6 m) apart but not more than 40 feet (12.2 m) apart along the entire length of the carrier; (5) The design and installation of mountings and cable guides does not PO 00000 Frm 00505 Fmt 4701 Sfmt 4700 reduce the design strength of the ladder; and (6) Ladder safety systems and their support systems are capable of withstanding, without failure, a drop test consisting of an 18-inch (41-cm) drop of a 500-pound (227-kg) weight. (j) Personal fall protection systems. Body belts, harnesses, and other components used in personal fall arrest systems, work positioning systems, and travel restraint systems must meet the requirements of § 1910.140. (k) Protection from falling objects. (1) The employers must ensure toeboards used for falling object protection: (i) Are erected along the exposed edge of the overhead walking-working surface for a length that is sufficient to protect employees below. (ii) Have a minimum vertical height of 3.5 inches (9 cm) as measured from the top edge of the toeboard to the level of the walking-working surface. (iii) Do not have more than a 0.25inch (0.5-cm) clearance or opening above the walking-working surface. E:\FR\FM\18NOR7.SGM 18NOR7 ER18NO16.359</GPH> (h) Outdoor advertising. This paragraph (h) applies only to employers engaged in outdoor advertising operations (see § 1910.28(b)(10)). Employers must ensure that each employee who climbs a fixed ladder without fall protection: (1) Is physically capable, as demonstrated through observations of actual climbing activities or by a physical examination, to perform the duties that may be assigned, including climbing fixed ladders without fall protection; (2) Has successfully completed a training or apprenticeship program that includes hands-on training on the safe climbing of ladders and is retrained as necessary to maintain the necessary skills; (3) Has the skill to climb ladders safely, as demonstrated through formal classroom training or on-the-job training, and performance observation; and (4) Performs climbing duties as a part of routine work activity. 82997 ER18NO16.358</GPH> srobinson on DSK5SPTVN1PROD with RULES6 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 82998 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations (iv) Are solid or do not have any opening that exceeds 1 inch (3 cm) at its greatest dimension. (v) Have a minimum height of 2.5 inches (6 cm) when used around vehicle repair, service, or assembly pits. Toeboards may be omitted around vehicle repair, service, or assembly pits when the employer can demonstrate that a toeboard would prevent access to a vehicle that is over the pit. (vi) Are capable of withstanding, without failure, a force of at least 50 pounds (222 N) applied in any downward or outward direction at any point along the toeboard. (2) The employer must ensure: (i) Where tools, equipment, or materials are piled higher than the top of the toeboard, paneling or screening is installed from the toeboard to the midrail of the guardrail system and for a length that is sufficient to protect employees below. If the items are piled higher than the midrail, the employer also must install paneling or screening to the top rail and for a length that is sufficient to protect employees below; and (ii) All openings in guardrail systems are small enough to prevent objects from falling through the opening. (3) The employer must ensure canopies used for falling object protection are strong enough to prevent collapse and to prevent penetration by falling objects. (l) Grab handles. The employer must ensure each grab handle: (1) Is not less than 12 inches (30 cm) long; (2) Is mounted to provide at least 3 inches (8 cm) of clearance from the framing or opening; and (3) Is capable of withstanding a maximum horizontal pull-out force equal to two times the maximum intended load or 200 pounds (890 N), whichever is greater. srobinson on DSK5SPTVN1PROD with RULES6 § 1910.30 Training requirements. (a) Fall hazards. (1) Before any employee is exposed to a fall hazard, the employer must provide training for each employee who uses personal fall protection systems or who is required to be trained as specified elsewhere in this subpart. Employers must ensure employees are trained in the requirements of this paragraph on or before May 17, 2017. (2) The employer must ensure that each employee is trained by a qualified person. (3) The employer must train each employee in at least the following topics: (i) The nature of the fall hazards in the work area and how to recognize them; VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 (ii) The procedures to be followed to minimize those hazards; (iii) The correct procedures for installing, inspecting, operating, maintaining, and disassembling the personal fall protection systems that the employee uses; and (iv) The correct use of personal fall protection systems and equipment specified in paragraph (a)(1) of this section, including, but not limited to, proper hook-up, anchoring, and tie-off techniques, and methods of equipment inspection and storage, as specified by the manufacturer. (b) Equipment hazards. (1) The employer must train each employee on or before May 17, 2017 in the proper care, inspection, storage, and use of equipment covered by this subpart before an employee uses the equipment. (2) The employer must train each employee who uses a dockboard to properly place and secure it to prevent unintentional movement. (3) The employer must train each employee who uses a rope descent system in proper rigging and use of the equipment in accordance with § 1910.27. (4) The employer must train each employee who uses a designated area in the proper set-up and use of the area. (c) Retraining. The employer must retrain an employee when the employer has reason to believe the employee does not have the understanding and skill required by paragraphs (a) and (b) of this section. Situations requiring retraining include, but are not limited to, the following: (1) When changes in the workplace render previous training obsolete or inadequate; (2) When changes in the types of fall protection systems or equipment to be used render previous training obsolete or inadequate; or (3) When inadequacies in an affected employee’s knowledge or use of fall protection systems or equipment indicate that the employee no longer has the requisite understanding or skill necessary to use equipment or perform the job safely. (d) Training must be understandable. The employer must provide information and training to each employee in a manner that the employee understands. Subpart F—[Amended] 4. Revise the authority citation for subpart F to read as follows: ■ Authority: 29 U.S.C. 653, 655, and 657; Secretary of Labor’s Order No. 12–71 (36 FR 8754), 8–76 (41 FR 25059), 9–83 (48 FR 35736), 1–90 (55 FR 9033), 5–2007 (72 FR 31159), or 1–2012 (77 FR 3912), as applicable; and 29 CFR part 1911. PO 00000 Frm 00506 Fmt 4701 Sfmt 4700 5. In § 1910.66: a. Revise paragraphs (b)(2)(i), (c)(3), (f)(5)(ii)(L) and (M), (f)(5)(iii)(B), and (j); ■ b. Remove and reserve appendix C; and ■ c. Revise appendix D, paragraph (c)(4). The revisions read as follows: ■ ■ § 1910.66 Powered platforms for building maintenance. * * * * * (b) * * * (2) * * * (i) Permanent installations in existence and/or completed before July 23, 1990 shall comply with paragraphs (g), (h), (i), (j) and appendix C to subpart I of this part. * * * * * (c) * * * (3) Building owners of all installations, new and existing, shall inform the employer in writing that the installation has been inspected, tested, and maintained in compliance with the requirements of paragraphs (g) and (h) of this section and that all anchorages meet the requirements of § 1910.140(c)(13). * * * * * (f) * * * (5) * * * (ii) * * * (L) The platform shall be provided with a secondary wire rope suspension system if the platform contains overhead structures which restrict the emergency egress of employees. A horizontal lifeline or a direct connection anchorage shall be provided as part of a personal fall arrest system that meets the requirements of subpart I of this part for each employee on such a platform. (M) A vertical lifeline shall be provided as part of a personal fall arrest system that meets the requirements of subpart I of this part for each employee on a working platform suspended by two or more wire ropes, if the failure of one wire rope or suspension attachment will cause the platform to upset. If a secondary wire rope suspension is used, vertical lifelines are not required for the personal fall arrest system, provided that each employee is attached to a horizontal lifeline anchored to the platform. * * * * * (iii) * * * (B) Each single point suspended working platform shall be provided with a secondary wire rope suspension system which will prevent the working platform from falling should there be a failure of the primary means of support, or if the platform contains overhead structures which restrict the egress of E:\FR\FM\18NOR7.SGM 18NOR7 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations the employees. A horizontal life line or a direct connection anchorage shall be provided as part of a personal fall arrest system that meets the requirements of subpart I of this part for each employee on the platform. * * * * * (j) Personal fall protection. Employees on working platforms shall be protected by a personal fall arrest system meeting the requirements of subpart I of this part and as otherwise provided by this standard. * * * * * Appendix C to § 1910.66 [Reserved] Appendix D to § 1910.66—Existing Installations (Mandatory) * * * * * (c) * * * (4) Access to the roof car. Safe access to the roof car and from the roof car to the working platform shall be provided. If the access to the roof car at any point of its travel is not over the roof area or where otherwise necessary for safety, then self-closing, selflocking gates shall be provided. Access to and from roof cars must comply with the requirements of subpart D of this part. * * * * * 6. In § 1910.67, revise paragraph (c)(2)(v) to read as follows: ■ § 1910.67 Vehicle-mounted elevating and rotating work platforms. * * * * * (c) * * * (2) * * * (v) A personal fall arrest or travel restraint system that meets the requirements in subpart I of this part shall be worn and attached to the boom or basket when working from an aerial lift. * * * * * ■ 7. In § 1910.68, revise paragraphs (b)(8)(ii) and (b)(12) to read as follows: § 1910.68 Manlifts. srobinson on DSK5SPTVN1PROD with RULES6 * * * * * (b) * * * (8) * * * (ii) Construction. The rails shall be standard guardrails with toeboards that meet the requirements in subpart D of this part. * * * * * (12) Emergency exit ladder. A fixed metal ladder accessible from both the ‘‘up’’ and ‘‘down’’ run of the manlift shall be provided for the entire travel of the manlift. Such ladders shall meet the requirements in subpart D of this part. * * * * * Subpart I—[Amended] 8. Revise the authority citation for subpart I to read as follows: ■ VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 Authority: 29 U.S.C. 653, 655, 657; Secretary of Labor’s Order No. 12–71 (36 FR 8754), 8–76 (41 FR 25059), 9–83 (48 FR 35736), 1–90 (55 FR 9033), 6–96 (62 FR 111), 3–2000 (65 FR 50017), 5–2002 (67 FR 65008), 5–2007 (72 FR 31159), 4–2010 (75 FR 55355), or 1–2012 (77 FR 3912), as applicable; and 29 CFR part 1911. 9. In § 1910.132, revise paragraph (g) to read as follows: ■ § 1910.132 General requirements. * * * * * (g) Paragraphs (d) and (f) of this section apply only to §§ 1910.133, 1910.135, 1910.136, 1910.138, and 1910.140. Paragraphs (d) and (f) of this section do not apply to §§ 1910.134 and 1910.137. * * * * * § 1910.139 ■ ■ [Added and Reserved] 10. Add reserved § 1910.139. 11. Add § 1910.140 to read as follows: § 1910.140 systems. Personal fall protection (a) Scope and application. This section establishes performance, care, and use criteria for all personal fall protection systems. The employer must ensure that each personal fall protection system used to comply with this part must meet the requirements of this section. (b) Definitions. The following definitions apply to this section: Anchorage means a secure point of attachment for equipment such as lifelines, lanyards, or deceleration devices. Belt terminal means an end attachment of a window cleaner’s positioning system used for securing the belt or harness to a window cleaner’s belt anchor. Body belt means a strap with means both for securing about the waist and for attaching to other components such as a lanyard used with positioning systems, travel restraint systems, or ladder safety systems. Body harness means straps that secure about the employee in a manner to distribute the fall arrest forces over at least the thighs, pelvis, waist, chest, and shoulders, with a means for attaching the harness to other components of a personal fall protection system. Carabiner means a connector generally comprised of a trapezoidal or oval shaped body with a closed gate or similar arrangement that may be opened to attach another object and, when released, automatically closes to retain the object. Competent person means a person who is capable of identifying existing and predictable hazards in any personal PO 00000 Frm 00507 Fmt 4701 Sfmt 4700 82999 fall protection system or any component of it, as well as in their application and uses with related equipment, and who has authorization to take prompt, corrective action to eliminate the identified hazards. Connector means a device used to couple (connect) parts of the fall protection system together. D-ring means a connector used: (i) In a harness as an integral attachment element or fall arrest attachment; (ii) In a lanyard, energy absorber, lifeline, or anchorage connector as an integral connector; or (iii) In a positioning or travel restraint system as an attachment element. Deceleration device means any mechanism that serves to dissipate energy during a fall. Deceleration distance means the vertical distance a falling employee travels from the point at which the deceleration device begins to operate, excluding lifeline elongation and free fall distance, until stopping. It is measured as the distance between the location of an employee’s body harness attachment point at the moment of activation (at the onset of fall arrest forces) of the deceleration device during a fall, and the location of that attachment point after the employee comes to a full stop. Equivalent means alternative designs, equipment, materials, or methods that the employer can demonstrate will provide an equal or greater degree of safety for employees compared to the designs, equipment, materials, or methods specified in the standard. Free fall means the act of falling before the personal fall arrest system begins to apply force to arrest the fall. Free fall distance means the vertical displacement of the fall arrest attachment point on the employee’s body belt or body harness between onset of the fall and just before the system begins to apply force to arrest the fall. This distance excludes deceleration distance, lifeline and lanyard elongation, but includes any deceleration device slide distance or self-retracting lifeline/lanyard extension before the devices operate and fall arrest forces occur. Lanyard means a flexible line of rope, wire rope, or strap that generally has a connector at each end for connecting the body belt or body harness to a deceleration device, lifeline, or anchorage. Lifeline means a component of a personal fall protection system consisting of a flexible line for connection to an anchorage at one end so as to hang vertically (vertical E:\FR\FM\18NOR7.SGM 18NOR7 srobinson on DSK5SPTVN1PROD with RULES6 83000 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations lifeline), or for connection to anchorages at both ends so as to stretch horizontally (horizontal lifeline), and serves as a means for connecting other components of the system to the anchorage. Personal fall arrest system means a system used to arrest an employee in a fall from a walking-working surface. It consists of a body harness, anchorage, and connector. The means of connection may include a lanyard, deceleration device, lifeline, or a suitable combination of these. Personal fall protection system means a system (including all components) an employer uses to provide protection from falling or to safely arrest an employee’s fall if one occurs. Examples of personal fall protection systems include personal fall arrest systems, positioning systems, and travel restraint systems. Positioning system (work-positioning system) 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.’’ 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. Rope grab means a deceleration device that travels on a lifeline and automatically, by friction, engages the lifeline and locks so as to arrest the fall of an employee. A rope grab usually employs the principle of inertial locking, cam/lever locking, or both. Safety factor means the ratio of the design load and the ultimate strength of the material. Self-retracting lifeline/lanyard means a deceleration device containing a drum-wound line that can be slowly extracted from, or retracted onto, the drum under slight tension during normal movement by the employee. At the onset of a fall, the device automatically locks the drum and arrests the fall. Snaphook means a connector comprised of a hook-shaped body with a normally closed gate, or similar arrangement that may be manually opened to permit the hook to receive an object. When released, the snaphook automatically closes to retain the object. Opening a snaphook requires two separate actions. Snaphooks are generally one of two types: VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 (i) Automatic-locking type (permitted) with a self-closing and self-locking gate that remains closed and locked until intentionally unlocked and opened for connection or disconnection; and (ii) Non-locking type (prohibited) with a self-closing gate that remains closed, but not locked, until intentionally opened for connection or disconnection. Travel restraint (tether) line means a rope or wire rope used to transfer forces from a body support to an anchorage or anchorage connector in a travel restraint system. Travel restraint system means a combination of an anchorage, anchorage connector, lanyard (or other means of connection), and body support that an employer uses to eliminate the possibility of an employee going over the edge of a walking-working surface. Window cleaner’s belt means a positioning belt that consists of a waist belt, an integral terminal runner or strap, and belt terminals. Window cleaner’s belt anchor (window anchor) means specifically designed fall-preventing attachment points permanently affixed to a window frame or to a building part immediately adjacent to the window frame, for direct attachment of the terminal portion of a window cleaner’s belt. Window cleaner’s positioning system means a system which consists of a window cleaner’s belt secured to window anchors. Work-positioning system (see Positioning system in this paragraph (b)). (c) General requirements. The employer must ensure that personal fall protection systems meet the following requirements. Additional requirements for personal fall arrest systems and positioning systems are contained in paragraphs (d) and (e) of this section, respectively. (1) Connectors must be drop forged, pressed or formed steel, or made of equivalent materials. (2) Connectors must have a corrosionresistant finish, and all surfaces and edges must be smooth to prevent damage to interfacing parts of the system. (3) When vertical lifelines are used, each employee must be attached to a separate lifeline. (4) Lanyards and vertical lifelines must have a minimum breaking strength of 5,000 pounds (22.2 kN). (5) Self-retracting lifelines and lanyards that automatically limit free fall distance to 2 feet (0.61 m) or less must have components capable of sustaining a minimum tensile load of 3,000 pounds (13.3 kN) applied to the PO 00000 Frm 00508 Fmt 4701 Sfmt 4700 device with the lifeline or lanyard in the fully extended position. (6) A competent person or qualified person must inspect each knot in a lanyard or vertical lifeline to ensure that it meets the requirements of paragraphs (c)(4) and (5) of this section before any employee uses the lanyard or lifeline. (7) D-rings, snaphooks, and carabiners must be capable of sustaining a minimum tensile load of 5,000 pounds (22.2 kN). (8) D-rings, snaphooks, and carabiners must be proof tested to a minimum tensile load of 3,600 pounds (16 kN) without cracking, breaking, or incurring permanent deformation. The gate strength of snaphooks and carabiners, must be proof tested to 3,600 lbs. (16 kN) in all directions. (9) Snaphooks and carabiners must be the automatic locking type that require at least two separate, consecutive movements to open. (10) Snaphooks and carabiners must not be connected to any of the following unless they are designed for such connections: (i) Directly to webbing, rope, or wire rope; (ii) To each other; (iii) To a D-ring to which another snaphook, carabiner, or connector is attached; (iv) To a horizontal life line; or (v) To any object that is incompatibly shaped or dimensioned in relation to the snaphook or carabiner such that unintentional disengagement could occur when the connected object depresses the snaphook or carabiner gate, allowing the components to separate. (11) The employer must ensure that each horizontal lifeline: (i) Is designed, installed, and used under the supervision of a qualified person; and (ii) Is part of a complete personal fall arrest system that maintains a safety factor of at least two. (12) Anchorages used to attach to personal fall protection equipment must be independent of any anchorage used to suspend employees or platforms on which employees work. Anchorages used to attach to personal fall protection equipment on mobile work platforms on powered industrial trucks must be attached to an overhead member of the platform, at a point located above and near the center of the platform. (13) Anchorages, except window cleaners’ belt anchors covered by paragraph (e) of this section, must be: (i) Capable of supporting at least 5,000 pounds (22.2 kN) for each employee attached; or (ii) Designed, installed, and used, under the supervision of qualified E:\FR\FM\18NOR7.SGM 18NOR7 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations srobinson on DSK5SPTVN1PROD with RULES6 person, as part of a complete personal fall protection system that maintains a safety factor of at least two. (14) Travel restraint lines must be capable of sustaining a tensile load of at least 5,000 pounds (22.2 kN). (15) Lifelines must not be made of natural fiber rope. Polypropylene rope must contain an ultraviolet (UV) light inhibitor. (16) Personal fall protection systems and their components must be used exclusively for employee fall protection and not for any other purpose, such as hoisting equipment or materials. (17) A personal fall protection system or its components subjected to impact loading must be removed from service immediately and not used again until a competent person inspects the system or components and determines that it is not damaged and safe for use for employee personal fall protection. (18) Personal fall protection systems must be inspected before initial use during each workshift for mildew, wear, damage, and other deterioration, and defective components must be removed from service. (19) Ropes, belts, lanyards, and harnesses used for personal fall protection must be compatible with all connectors used. (20) Ropes, belts, lanyards, lifelines, and harnesses used for personal fall protection must be protected from being cut, abraded, melted, or otherwise damaged. (21) The employer must provide for prompt rescue of each employee in the event of a fall. (22) Personal fall protection systems must be worn with the attachment point of the body harness located in the center of the employee’s back near shoulder level. The attachment point may be located in the pre-sternal position if the free fall distance is limited to 2 feet (0.6 m) or less. (d) Personal fall arrest systems—(1) System performance criteria. In addition VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 to the general requirements in paragraph (c) of this section, the employer must ensure that personal fall arrest systems: (i) Limit the maximum arresting force on the employee to 1,800 pounds (8 kN); (ii) Bring the employee to a complete stop and limit the maximum deceleration distance the employee travels to 3.5 feet (1.1 m); (iii) Have sufficient strength to withstand twice the potential impact energy of the employee free falling a distance of 6 feet (1.8 m), or the free fall distance permitted by the system; and (iv) Sustain the employee within the system/strap configuration without making contact with the employee’s neck and chin area. (v) If the personal fall arrest system meets the criteria and protocols in appendix D of this subpart, and is being used by an employee having a combined body and tool weight of less than 310 pounds (140 kg), the system is considered to be in compliance with the provisions of paragraphs (d)(1)(i) through (iii) of this section. If the system is used by an employee having a combined body and tool weight of 310 pounds (140kg) or more and the employer has appropriately modified the criteria and protocols in appendix D, then the system will be deemed to be in compliance with the requirements of paragraphs (d)(1)(i) through (iii). (2) System use criteria. The employer must ensure that: (i) On any horizontal lifeline that may become a vertical lifeline, the device used to connect to the horizontal lifeline is capable of locking in both directions on the lifeline. (ii) Personal fall arrest systems are rigged in such a manner that the employee cannot free fall more than 6 feet (1.8 m) or contact a lower level. A free fall may be more than 6 feet (1.8 m) provided the employer can demonstrate the manufacturer designed the system to allow a free fall of more than 6 feet and tested the system to ensure a maximum PO 00000 Frm 00509 Fmt 4701 Sfmt 4700 83001 arresting force of 1,800 pounds (8 kN) is not exceeded. (3) Body belts. Body belts are prohibited as part of a personal fall arrest system. (e) Positioning systems—(1) System performance requirements. The employer must ensure that each positioning system meets the following requirements: (i) General. All positioning systems, except window cleaners’ positioning systems, are capable of withstanding, without failure, a drop test consisting of a 4-foot (1.2-m) drop of a 250-pound (113-kg) weight; (ii) Window cleaners’ positioning systems. All window cleaners’ positioning systems must: (A) Be capable of withstanding without failure a drop test consisting of a 6-foot (1.8-m) drop of a 250-pound (113-kg) weight; and (B) Limit the initial arresting force on the falling employee to not more than 2,000 pounds (8.9 kN), with a duration not exceeding 2 milliseconds and any subsequent arresting forces to not more than 1,000 pounds (4.5 kN). (iii) Positioning systems, including window cleaners’ positioning systems, that meet the test methods and procedures in appendix D of this subpart are considered to be in compliance with paragraphs (e)(1)(i) and (ii). (iv) Lineman’s body belt and pole strap systems. Lineman’s body belt and pole strap systems must meet the following tests: (A) A dielectric test of 819.7 volts, AC, per centimeter (25,000 volts per foot) for 3 minutes without visible deterioration; (B) A leakage test of 98.4 volts, AC, per centimeter (3,000 volts per foot) with a leakage current of no more than 1 mA; and (C) A flammability test in accordance with Table I–7 of this section. E:\FR\FM\18NOR7.SGM 18NOR7 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations (2) System use criteria for window cleaners’ positioning systems. The employer must ensure that window cleaners’ positioning systems meet and are used in accordance with the following: (i) Window cleaners’ belts are designed and constructed so that: (A) Belt terminals will not pass through their fastenings on the belt or harness if a terminal comes loose from the window anchor; and (B) The length of the runner from terminal tip to terminal tip is 8 feet (2.44 m) or less; (ii) Window anchors to which belts are fastened are installed in the side frames or mullions of the window at a point not less than 42 inches (106.7 cm) and not more than 51 inches (129.5 cm) above the window sill; (iii) Each window anchor is capable of supporting a minimum load of 6,000 pounds (26.5 kN); (iv) Use of installed window anchors for any purpose other than attaching the window cleaner’s belt is prohibited; (v) A window anchor that has damaged or deteriorated fastenings or supports is removed, or the window anchor head is detached so the anchor cannot be used; (vi) Rope that has wear or deterioration that affects its strength is not used; (vii) Both terminals of the window cleaner’s belt are attached to separate VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 window anchors during any cleaning operation; (viii) No employee works on a window sill or ledge on which there is snow, ice, or any other slippery condition, or one that is weakened or rotted; (ix) No employee works on a window sill or ledge unless: (A) The window sill or ledge is a minimum of 4 inches (10 cm) wide and slopes no more than 15 degrees below horizontal; or (B) The 4-inch minimum width of the window sill or ledge is increased 0.4 inches (1 cm) for every degree the sill or ledge slopes beyond 15 degrees, up to a maximum of 30 degrees; (x) The employee attaches at least one belt terminal to a window anchor before climbing through the window opening, and keeps at least one terminal attached until completely back inside the window opening; (xi) Except as provided in paragraph (e)(2)(xii) of this section, the employee travels from one window to another by returning inside the window opening and repeating the belt terminal attachment procedure at each window in accordance with paragraph (e)(2)(x) of this section; (xii) An employee using a window cleaner’s positioning system may travel from one window to another while outside of the building, provided: PO 00000 Frm 00510 Fmt 4701 Sfmt 4700 (A) At least one belt terminal is attached to a window anchor at all times; (B) The distance between window anchors does not exceed 4 feet (1.2 m) horizontally. The distance between windows may be increased up to 6 feet (1.8 m) horizontally if the window sill or ledge is at least 1 foot (0.31 m) wide and the slope is less than 5 degrees; (C) The sill or ledge between windows is continuous; and (D) The width of the window sill or ledge in front of the mullions is at least 6 inches (15.2 cm) wide. ■ 12. Add appendices C and D to subpart I of part 1910 to read as follows: Appendix C to Subpart I of Part 1910— Personal Fall Protection Systems NonMandatory Guidelines The following information generally applies to all personal fall protection systems and is intended to assist employers and employees comply with the requirements of § 1910.140 for personal fall protection systems. (a) Planning considerations. It is important for employers to plan prior to using personal fall protection systems. Probably the most overlooked component of planning is locating suitable anchorage points. Such planning should ideally be done before the structure or building is constructed so that anchorage points can be used later for window cleaning or other building maintenance. (b) Selection and use considerations. (1) The kind of personal fall protection system E:\FR\FM\18NOR7.SGM 18NOR7 ER18NO16.360</GPH> srobinson on DSK5SPTVN1PROD with RULES6 83002 srobinson on DSK5SPTVN1PROD with RULES6 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations selected should be appropriate for the employee’s specific work situation. Free fall distances should always be kept to a minimum. Many systems are designed for particular work applications, such as climbing ladders and poles; maintaining and servicing equipment; and window cleaning. Consideration should be given to the environment in which the work will be performed. For example, the presence of acids, dirt, moisture, oil, grease, or other substances, and their potential effects on the system selected, should be evaluated. The employer should fully evaluate the work conditions and environment (including seasonal weather changes) before selecting the appropriate personal fall protection system. Hot or cold environments may also affect fall protection systems. Wire rope should not be used where electrical hazards are anticipated. As required by § 1910.140(c)(21), the employer must provide a means for promptly rescuing an employee should a fall occur. (2) Where lanyards, connectors, and lifelines are subject to damage by work operations, such as welding, chemical cleaning, and sandblasting, the component should be protected, or other securing systems should be used. A program for cleaning and maintaining the system may be necessary. (c) Testing considerations. Before purchasing a personal fall protection system, an employer should insist that the supplier provide information about its test performance (using recognized test methods) so the employer will know that the system meets the criteria in § 1910.140. Otherwise, the employer should test the equipment to ensure that it is in compliance. Appendix D to this subpart contains test methods which are recommended for evaluating the performance of any system. There are some circumstances in which an employer can evaluate a system based on data and calculations derived from the testing of similar systems. Enough information must be available for the employer to demonstrate that its system and the tested system(s) are similar in both function and design. (d) Component compatibility considerations. Ideally, a personal fall protection system is designed, tested, and supplied as a complete system. However, it is common practice for lanyards, connectors, lifelines, deceleration devices, body belts, and body harnesses to be interchanged since some components wear out before others. Employers and employees should realize that not all components are interchangeable. For instance, a lanyard should not be connected between a body harness and a deceleration device of the self-retracting type (unless specifically allowed by the manufacturer) since this can result in additional free fall for which the system was not designed. In addition, positioning components, such as pole straps, ladder hooks and rebar hooks, should not be used in personal fall arrest systems unless they meet the appropriate strength and performance requirements of part 1910 (e.g., §§ 1910.140, 1910.268 and 1910.269). Any substitution or change to a personal fall protection system should be fully evaluated or tested by a competent VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 person to determine that it meets applicable OSHA standards before the modified system is put in use. Also, OSHA suggests that rope be used according to manufacturers’ recommendations, especially if polypropylene rope is used. (e) Employee training considerations. As required by §§ 1910.30 and 1910.132, before an employee uses a fall protection system, the employer must ensure that he or she is trained in the proper use of the system. This may include the following: The limits of the system; proper anchoring and tie-off techniques; estimating free fall distance, including determining elongation and deceleration distance; methods of use; and inspection and storage. Careless or improper use of fall protection equipment can result in serious injury or death. Employers and employees should become familiar with the material in this standard and appendix, as well as manufacturers’ recommendations, before a system is used. It is important for employees to be aware that certain tie-offs (such as using knots and tying around sharp edges) can reduce the overall strength of a system. Employees also need to know the maximum permitted free fall distance. Training should stress the importance of inspections prior to use, the limitations of the equipment to be used, and unique conditions at the worksite that may be important. (f) Instruction considerations. Employers should obtain comprehensive instructions from the supplier or a qualified person as to the system’s proper use and application, including, where applicable: (1) The force measured during the sample force test; (2) The maximum elongation measured for lanyards during the force test; (3) The deceleration distance measured for deceleration devices during the force test; (4) Caution statements on critical use limitations; (5) Limits of the system; (6) Proper hook-up, anchoring and tie-off techniques, including the proper D-ring or other attachment point to use on the body harness; (7) Proper climbing techniques; (8) Methods of inspection, use, cleaning, and storage; and (9) Specific lifelines that may be used. (g) Inspection considerations. Personal fall protection systems must be inspected before initial use in each workshift. Any component with damage, such as a cut, tear, abrasion, mold, or evidence of undue stretching, an alteration or addition that might affect its effectiveness, damage due to deterioration, fire, acid, or other corrosive damage, distorted hooks or faulty hook springs, tongues that are unfitted to the shoulder of buckles, loose or damaged mountings, nonfunctioning parts, or wear, or internal deterioration must be removed from service immediately, and should be tagged or marked as unusable, or destroyed. Any personal fall protection system, including components, subjected to impact loading must be removed from service immediately and not used until a competent person inspects the system and determines that it is not damaged and is safe to use for personal fall protection. (h) Rescue considerations. As required by § 1910.140(c)(21), when personal fall arrest PO 00000 Frm 00511 Fmt 4701 Sfmt 4700 83003 systems are used, special consideration must be given to rescuing an employee promptly should a fall occur. The availability of rescue personnel, ladders, or other rescue equipment needs to be evaluated since there may be instances in which employees cannot self-rescue (e.g., employee unconscious or seriously injured). In some situations, equipment allowing employees to rescue themselves after the fall has been arrested may be desirable, such as devices that have descent capability. (i) Tie-off considerations. Employers and employees should at all times be aware that the strength of a personal fall arrest system is based on its being attached to an anchoring system that can support the system. Therefore, if a means of attachment is used that will reduce the strength of the system (such as an eye-bolt/snaphook anchorage), that component should be replaced by a stronger one that will also maintain the appropriate maximum deceleration characteristics. The following is a listing of some situations in which employers and employees should be especially cautious: (1) Tie-off using a knot in the lanyard or lifeline (at any location). The strength of the line can be reduced by 50 percent or more if a knot is used. Therefore, a stronger lanyard or lifeline should be used to compensate for the knot, or the lanyard length should be reduced (or the tie-off location raised) to minimize free fall distance, or the lanyard or lifeline should be replaced by one which has an appropriately incorporated connector to eliminate the need for a knot. (2) Tie-off around rough or sharp (e.g., ‘‘H’’ or ‘‘I’’ beams) surfaces. Sharp or rough surfaces can damage rope lines and this reduces strength of the system drastically. Such tie-offs should be avoided whenever possible. An alternate means should be used such as a snaphook/D-ring connection, a tieoff apparatus (steel cable tie-off), an effective padding of the surfaces, or an abrasionresistant strap around the supporting member. If these alternative means of tie-off are not available, the employer should try to minimize the potential free fall distance. (3) Knots. Sliding hitch knots should not be used except in emergency situations. The one-and-one sliding hitch knot should never be used because it is unreliable in stopping a fall. The two-and-two, or three-and-three knots (preferable) may be used in emergency situations; however, care should be taken to limit free fall distances because of reduced lifeline/lanyard strength. OSHA requires that a competent or qualified person inspect each knot in a lanyard or vertical lifeline to ensure it meets the strength requirements in § 1910.140. (j) Horizontal lifelines. Horizontal lifelines, depending on their geometry and angle of sag, may be subjected to greater loads than the impact load imposed by an attached component. When the angle of horizontal lifeline sag is less than 30 degrees, the impact force imparted to the lifeline by an attached lanyard is greatly amplified. For example, with a sag angle of 15 degrees the force amplification is about 2:1, and at 5 degrees sag it is about 6:1. Depending on the angle of sag, and the line’s elasticity, the strength E:\FR\FM\18NOR7.SGM 18NOR7 srobinson on DSK5SPTVN1PROD with RULES6 83004 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations of the horizontal lifeline, and the anchorages to which it is attached should be increased a number of times over that of the lanyard. Extreme care should be taken in considering a horizontal lifeline for multiple tie-offs. If there are multiple tie-offs to a horizontal lifeline, and one employee falls, the movement of the falling employee and the horizontal lifeline during arrest of the fall may cause other employees to fall. Horizontal lifeline and anchorage strength should be increased for each additional employee to be tied-off. For these and other reasons, the systems using horizontal lifelines must be designed only by qualified persons. OSHA recommends testing installed lifelines and anchors prior to use. OSHA requires that horizontal lifelines are designed, installed and used under the supervision of a qualified person. (k) Eye-bolts. It must be recognized that the strength of an eye-bolt is rated along the axis of the bolt, and that its strength is greatly reduced if the force is applied at right angles to this axis (in the direction of its shear strength). Care should also be exercised in selecting the proper diameter of the eye to avoid creating a roll-out hazard (accidental disengagement of the snaphook from the eyebolt). (l) Vertical lifeline considerations. As required by § 1910.140(c)(3), each employee must have a separate lifeline when the lifeline is vertical. If multiple tie-offs to a single lifeline are used, and one employee falls, the movement of the lifeline during the arrest of the fall may pull other employees’ lanyards, causing them to fall as well. (m) Snaphook and carabiner considerations. As required by § 1910.140(c)(10), the following connections must be avoided unless the locking snaphook or carabiner has been designed for them because they are conditions that can result in rollout: (1) Direct connection to webbing, rope, or a horizontal lifeline; (2) Two (or more) snaphooks or carabiners connected to one D-ring; (3) Two snaphooks or carabiners connected to each other; (4) Snaphooks or carabiners connected directly to webbing, rope, or wire rope; and (5) Improper dimensions of the D-ring, rebar, or other connection point in relation to the snaphook or carabiner dimensions which would allow the gate to be depressed by a turning motion. (n) Free fall considerations. Employers and employees should always be aware that a system’s maximum arresting force is evaluated under normal use conditions established by the manufacturer. OSHA requires that personal fall arrest systems be rigged so an employee cannot free fall in excess of 6 feet (1.8 m). Even a few additional feet of free fall can significantly increase the arresting force on the employee, possibly to the point of causing injury and possibly exceeding the strength of the system. Because of this, the free fall distance should be kept to a minimum, and, as required by § 1910.140(d)(2), must never be greater than 6 feet (1.8 m). To assure this, the tie-off attachment point to the lifeline or anchor should be located at or above the connection VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 point of the fall arrest equipment to the harness. (Otherwise, additional free fall distance is added to the length of the connecting means (i.e., lanyard)). Tying off to the walking-working surface will often result in a free fall greater than 6 feet (1.8 m). For instance, if a 6-foot (1.8-m) lanyard is used, the total free fall distance will be the distance from the walking-working level to the harness connection plus the 6 feet (1.8 m) of lanyard. (o) Elongation and deceleration distance considerations. During fall arrest, a lanyard will stretch or elongate, whereas activation of a deceleration device will result in a certain stopping distance. These distances should be available with the lanyard or device’s instructions and must be added to the free fall distance to arrive at the total fall distance before an employee is fully stopped. The additional stopping distance may be significant if the lanyard or deceleration device is attached near or at the end of a long lifeline, which may itself add considerable distance due to its own elongation. As required by § 1910.140(d)(2), sufficient distance to allow for all of these factors must also be maintained between the employee and obstructions below, to prevent an injury due to impact before the system fully arrests the fall. In addition, a minimum of 12 feet (3.7 m) of lifeline should be allowed below the securing point of a rope-grab-type deceleration device, and the end terminated to prevent the device from sliding off the lifeline. Alternatively, the lifeline should extend to the ground or the next working level below. These measures are suggested to prevent the employee from inadvertently moving past the end of the lifeline and having the rope grab become disengaged from the lifeline. (p) Obstruction considerations. In selecting a location for tie-off, employers and employees should consider obstructions in the potential fall path of the employee. Tieoffs that minimize the possibilities of exaggerated swinging should be considered. Appendix D to Subpart I of Part 1910— Test Methods and Procedures for Personal Fall Protection Systems NonMandatory Guidelines This appendix contains test methods for personal fall protection systems which may be used to determine if they meet the system performance criteria specified in paragraphs (d) and (e) of § 1910.140. Test methods for personal fall arrest systems (paragraph (d) of § 1910.140). (a) General. The following sets forth test procedures for personal fall arrest systems as defined in paragraph (d) of § 1910.140. (b) General test conditions. (1) Lifelines, lanyards and deceleration devices should be attached to an anchorage and connected to the body harness in the same manner as they would be when used to protect employees. (2) The fixed anchorage should be rigid, and should not have a deflection greater than 0.04 inches (1 mm) when a force of 2,250 pounds (10 kN) is applied. (3) The frequency response of the load measuring instrumentation should be 120 Hz. PO 00000 Frm 00512 Fmt 4701 Sfmt 4700 (4) The test weight used in the strength and force tests should be a rigid, metal cylindrical or torso-shaped object with a girth of 38 inches plus or minus 4 inches (96 cm plus or minus 10 cm). (5) The lanyard or lifeline used to create the free fall distance should be supplied with the system, or in its absence, the least elastic lanyard or lifeline available should be used with the system. (6) The test weight for each test should be hoisted to the required level and should be quickly released without having any appreciable motion imparted to it. (7) The system’s performance should be evaluated, taking into account the range of environmental conditions for which it is designed to be used. (8) Following the test, the system need not be capable of further operation. (c) Strength test. (1) During the testing of all systems, a test weight of 300 pounds plus or minus 3 pounds (136.4 kg plus or minus 1.4 kg) should be used. (See paragraph (b)(4) of this appendix.) (2) The test consists of dropping the test weight once. A new unused system should be used for each test. (3) For lanyard systems, the lanyard length should be 6 feet plus or minus 2 inches (1.83 m plus or minus 5 cm) as measured from the fixed anchorage to the attachment on the body harness. (4) For rope-grab-type deceleration systems, the length of the lifeline above the centerline of the grabbing mechanism to the lifeline’s anchorage point should not exceed 2 feet (0.61 m). (5) For lanyard systems, for systems with deceleration devices which do not automatically limit free fall distance to 2 feet (0.61 m) or less, and for systems with deceleration devices which have a connection distance in excess of 1 foot (0.3 m) (measured between the centerline of the lifeline and the attachment point to the body harness), the test weight should be rigged to free fall a distance of 7.5 feet (2.3 m) from a point that is 1.5 feet (46 cm) above the anchorage point, to its hanging location (6 feet (1.83 m) below the anchorage). The test weight should fall without interference, obstruction, or hitting the floor or ground during the test. In some cases a non-elastic wire lanyard of sufficient length may need to be added to the system (for test purposes) to create the necessary free fall distance. (6) For deceleration device systems with integral lifelines or lanyards that automatically limit free fall distance to 2 feet (0.61 m) or less, the test weight should be rigged to free fall a distance of 4 feet (1.22 m). (7) Any weight that detaches from the harness should constitute failure for the strength test. (d) Force test. (1) General. The test consists of dropping the respective test weight specified in paragraph (d)(2)(i) or (d)(3)(i) of this appendix once. A new, unused system should be used for each test. (2) For lanyard systems. (i) A test weight of 220 pounds plus or minus three pounds (100 kg plus or minus 1.6 kg) should be used. (See paragraph (b)(4) of this appendix.) E:\FR\FM\18NOR7.SGM 18NOR7 srobinson on DSK5SPTVN1PROD with RULES6 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations (ii) Lanyard length should be 6 feet plus or minus 2 inches (1.83 m plus or minus 5 cm) as measured from the fixed anchorage to the attachment on the body harness. (iii) The test weight should fall free from the anchorage level to its hanging location (a total of 6 feet (1.83 m) free fall distance) without interference, obstruction, or hitting the floor or ground during the test. (3) For all other systems. (i) A test weight of 220 pounds plus or minus 2 pounds (100 kg plus or minus 1.0 kg) should be used. (See paragraph (b)(4) of this appendix.) (ii) The free fall distance to be used in the test should be the maximum fall distance physically permitted by the system during normal use conditions, up to a maximum free fall distance for the test weight of 6 feet (1.83 m), except as follows: (A) For deceleration systems having a connection link or lanyard, the test weight should free fall a distance equal to the connection distance (measured between the centerline of the lifeline and the attachment point to the body harness). (B) For deceleration device systems with integral lifelines or lanyards that automatically limit free fall distance to 2 feet (0.61 m) or less, the test weight should free fall a distance equal to that permitted by the system in normal use. (For example, to test a system with a self-retracting lifeline or lanyard, the test weight should be supported and the system allowed to retract the lifeline or lanyard as it would in normal use. The test weight would then be released and the force and deceleration distance measured). (4) Failure. A system fails the force test when the recorded maximum arresting force exceeds 2,520 pounds (11.2 kN) when using a body harness. (5) Distances. The maximum elongation and deceleration distance should be recorded during the force test. (e) Deceleration device tests. (1) General. The device should be evaluated or tested under the environmental conditions (such as rain, ice, grease, dirt, and type of lifeline) for which the device is designed. (2) Rope-grab-type deceleration devices. (i) Devices should be moved on a lifeline 1,000 times over the same length of line a distance of not less than 1 foot (30.5 cm), and the mechanism should lock each time. (ii) Unless the device is permanently marked to indicate the type of lifelines that must be used, several types (different diameters and different materials), of lifelines should be used to test the device. (3) Other self-activating-type deceleration devices. The locking mechanisms of other self-activating-type deceleration devices designed for more than one arrest should lock each of 1,000 times as they would in normal service. Test methods for positioning systems (paragraph (e) of § 1910.140). (a) General. The following sets forth test procedures for positioning systems as defined in paragraph (e) of § 1910.140. The requirements in this appendix for personal fall arrest systems set forth procedures that may be used, along with the procedures listed below, to determine compliance with the requirements for positioning systems. VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 (b) Test conditions. (1) The fixed anchorage should be rigid and should not have a deflection greater than 0.04 inches (1 mm) when a force of 2,250 pounds (10 kN) is applied. (2) For window cleaners’ belts, the complete belt should withstand a drop test consisting of a 250 pound (113 kg) weight falling free for a distance of 6 feet (1.83 m). The weight should be a rigid object with a girth of 38 inches plus or minus 4 inches (96 cm plus or minus 10 cm). The weight should be placed in the waistband with the belt buckle drawn firmly against the weight, as when the belt is worn by a window cleaner. One belt terminal should be attached to a rigid anchor and the other terminal should hang free. The terminals should be adjusted to their maximum span. The weight fastened in the freely suspended belt should then be lifted exactly 6 feet (1.83 m) above its ‘‘at rest’’ position and released so as to permit a free fall of 6 feet (1.83 m) vertically below the point of attachment of the terminal anchor. The belt system should be equipped with devices and instrumentation capable of measuring the duration and magnitude of the arrest forces. Failure of the test should consist of any breakage or slippage sufficient to permit the weight to fall free of the system. In addition, the initial and subsequent arresting forces should be measured and should not exceed 2,000 pounds (8.5 kN) for more than 2 milliseconds for the initial impact, or exceed 1,000 pounds (4.5 kN) for the remainder of the arrest time. (3) All other positioning systems (except for restraint line systems) should withstand a drop test consisting of a 250 pound (113 kg) weight free falling a distance of 4 feet (1.2 m). The weight must be a rigid object with a girth of 38 inches plus or minus 4 inches (96 cm plus or minus 10 cm). The body belt or harness should be affixed to the test weight as it would be to an employee. The system should be connected to the rigid anchor in the manner that the system would be connected in normal use. The weight should be lifted exactly 4 feet (1.2 m) above its ‘‘at rest’’ position and released so as to permit a vertical free fall of 4 feet (1.2 m). Failure of the system should be indicated by any breakage or slippage sufficient to permit the weight to fall free to the ground. Subpart N—[Amended] 13. Revise the authority citation for subpart N to read as follows: ■ Authority: 29 U.S.C. 653, 655, 657; Secretary of Labor’s Order No. 12–71 (36 FR 8754), 8–76 (41 FR 25059), 9–83 (48 FR 35736), 1–90 (55 FR 9033), 6–96 (62 FR 111), 3–2000 (65 FR 50017), 5–2002 (67 FR 65008), 5–2007 (72 FR 31159), 4–2010 (75 FR 55355), or 1–2012 (77 FR 3912), as applicable; and 29 CFR part 1911. 14. In § 1910.178, revise paragraph (j) to read as follows: ■ § 1910.178 Powered industrial trucks. * * * * * (j) Dockboards (bridge plates). See subpart D of this part. * * * * * PO 00000 Frm 00513 Fmt 4701 Sfmt 4700 83005 15. In § 1910.179, revise paragraphs (c)(2), (d)(3), and (d)(4)(iii) to read as follows: ■ § 1910.179 Overhead and gantry cranes. * * * * * (c) * * * (2) Access to crane. Access to the car and/or bridge walkway shall be by a conveniently placed fixed ladder, stairs, or platform requiring no step over any gap exceeding 12 inches (30 cm). Fixed ladders must comply with subpart D of this part. * * * * * (d) * * * (3) Toeboards and handrails for footwalks. Toeboards and handrails must comply with subpart D of this part. (4) * * * (iii) Ladders shall be permanently and securely fastened in place and constructed in compliance with subpart D of this part. * * * * * Subpart R—[Amended] 16. Revise the authority citation for subpart R to read as follows: ■ Authority: 29 U.S.C. 653, 655, 657; Secretary of Labor’s Order No. 12–71 (36 FR 8754), 8–76 (41 FR 25059), 9–83 (48 FR 35736), 1–90 (55 FR 9033), 6–96 (62 FR 111), 5–2007 (72 FR 31159), 4–2010 (75 FR 55355), or 1–2012 (77 FR 3912), as applicable; and 29 CFR part 1911. 17. In § 1910.261, revise paragraphs (c)(15)(ii), (e)(4), (g)(2)(ii), (g)(13)(i), (h)(1), (j)(4)(iii), (j)(5)(i), (k)(6), (k)(13)(i) and (k)(15) to read as follows: ■ § 1910.261 mills. Pulp, paper, and paperboard * * * * * (c) * * * (15) * * * (ii) Where conveyors cross passageways or roadways, a horizontal platform shall be provided under the conveyor, extended out from the sides of the conveyor a distance equal to 11⁄2 times the length of the wood handled. The platform shall extend the width of the road plus 2 feet (61 cm) on each side, and shall be kept free of wood and rubbish. The edges of the platform shall be provided with toeboards or other protection that meet the requirements of subpart D of this part, to prevent wood from falling. * * * * * (e) * * * (4) Runway to the jack ladder. The runway from the pond or unloading dock to the table shall be protected with standard handrails and toeboards. Inclined portions shall have cleats or equivalent nonslip surfacing that E:\FR\FM\18NOR7.SGM 18NOR7 srobinson on DSK5SPTVN1PROD with RULES6 83006 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations complies with subpart D of this part. Protective equipment shall be provided for persons working over water. * * * * * (g) * * * (2) * * * (ii) The worker shall be provided with eye protection, a supplied air respirator and a personal fall protection system that meets the requirements of subpart I of this part, during inspection, repairs or maintenance of acid towers. The line shall be extended to an attendant stationed outside the tower opening. * * * * * (13) * * * (i) Blow-pit openings preferably shall be on the side of the pit instead of on the top. Openings shall be as small as possible when located on top, and shall be protected in accordance with subpart D of this part. * * * * * (h) * * * (1) Bleaching engines. Bleaching engines, except the Bellmer type, shall be completely covered on the top, with the exception of one small opening large enough to allow filling, but too small to admit an employee. Platforms leading from one engine to another shall have standard guardrails that meet the requirements in subpart D of this part. * * * * * (j) * * * (4) * * * (iii) When beaters are fed from the floor above, the chute opening, if less than 42 inches (1.06 m) from the floor, shall be provided with a guardrail system that meets the requirements in subpart D of this part, or other equivalent enclosures. Openings for manual feeding shall be sufficient only for entry of stock, and shall be provided with at least two permanently secured crossrails or other fall protection system that meet the requirements in subpart D. * * * * * (5) * * * (i) All pulpers having the top or any other opening of a vessel less than 42 inches (107 cm) from the floor or work platform shall have such openings guarded by guardrail systems that meet the requirements in subpart D of this part, or other equivalent enclosures. For manual changing, openings shall be sufficient only to permit the entry of stock, and shall be provided with at least two permanently secured crossrails, or other fall protection systems that meet the requirements in subpart D. * * * * * VerDate Sep<11>2014 23:45 Nov 17, 2016 Jkt 241001 (k) * * * (6) Steps. Steps of uniform rise and tread with nonslip surfaces that meet the requirements in subpart D of this part shall be provided at each press. * * * * * (13) * * * (i) A guardrail that complies with subpart D of this part shall be provided at broke holes. * * * * * (15) Steps. Steps or ladders that comply with subpart D of this part and tread with nonslip surfaces shall be provided at each calendar stack. Handrails and hand grips complying with subpart D shall be provided at each calendar stack. * * * * * ■ 18. In § 1910.262, revise paragraph (r) to read as follows: § 1910.262 Textiles. * * * * * (r) Gray and white bins. On new installations guardrails that comply with subpart D of this part shall be provided where workers are required to plait by hand from the top of the bin so as to protect the worker from falling to a lower level. * * * * * ■ 19. In § 1910.265, revise paragraphs (c)(4)(v), (c)(5)(i), and (f)(6) to read as follows: § 1910.265 Sawmills. * * * * * (c) * * * (4) * * * (v) Elevated platforms. Where elevated platforms are used routinely on a daily basis, they shall be equipped with stairways or fixed ladders that comply with subpart D of this part. * * * * * (5) * * * (i) Construction. Stairways shall be constructed in accordance with subpart D of this part. * * * * * (f) * * * (6) Ladders. A fixed ladder complying with the requirements of subpart D of this part, or other adequate means, shall be provided to permit access to the roof. Where controls and machinery are mounted on the roof, a permanent stairway with standard handrail shall be installed in accordance with the requirements in subpart D. * * * * * ■ 20. In § 1910.268: ■ a. Revise paragraphs (g)(1); PO 00000 Frm 00514 Fmt 4701 Sfmt 9990 ■ ■ ■ b. Remove paragraph (g)(2); c. Redesignate (g)(3) as (g)(2); and d. Revise paragraph (h). The revisions read as follows: § 1910.268 Telecommunications. * * * * * (g) Personal climbing equipment—(1) General. A positioning system or a personal fall arrest system shall be provided and the employer shall ensure their use when work is performed at positions more than 4 feet (1.2 m) above the ground, on poles, and on towers, except as provided in paragraphs (n)(7) and (8) of this section. These systems shall meet the applicable requirements in subpart I of this part. The employer shall ensure that all climbing equipment is inspected before each day’s use to determine that it is in safe working condition. * * * * * (h) Ladders. Ladders, step bolts, and manhole steps shall meet the applicable requirements in subpart D of this part. * * * * * 21. In § 1910.269, revise paragraphs (g)(2)(i), (g)(2)(iv)(B), and (g)(2)(iv)(C)(1) to read as follows: ■ § 1910.269 Electric power generation, transmission, and distribution. * * * * * (g) * * * (2) * * * (i) Personal fall arrest systems shall meet the requirements of subpart I of this part. * * * * * (iv) * * * (B) Personal fall arrest systems shall be used in accordance with subpart I of this part. Note to paragraph (g)(2)(iv)(B): Fall protection equipment rigged to arrest falls is considered a fall arrest system and must meet the applicable requirements for the design and use of those systems. Fall protection equipment rigged for work positioning is considered work-positioning equipment and must meet the applicable requirements for the design and use of that equipment. (C) * * * (1) Each employee working from an aerial lift shall use a travel restraint system or a personal fall arrest system. * * * * * [FR Doc. 2016–24557 Filed 11–17–16; 8:45 am] BILLING CODE 4510–29–P E:\FR\FM\18NOR7.SGM 18NOR7

Agencies

[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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Friday,

No. 223

November 18, 2016

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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

Federal Register / Vol. 81 , No. 223 / Friday, November 18, 2016 / 
Rules and Regulations

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DEPARTMENT OF LABOR

Occupational Safety and Health Administration

29 CFR Part 1910

[Docket No. OSHA-2007-0072]
RIN 1218[dash]AB80


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 https://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 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:

I. 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
II. Analysis of Risk
    A. Introduction
    B. Nature of the Risk
    C. Fatality and Injury Data
III. Pertinent Legal Authority
IV. Summary and Explanation of the Final Rule
    A. Final Subpart D
    B. Final Sec.  1910.140
    C. Other Revisions to 29 CFR Part 1910
V. 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
    I. Sensitivity Analyses
    J. References
VI. Federalism
VII. State-Plan Requirements
VIII. Unfunded Mandates Reform Act
IX. Consultation and Coordination With Indian Tribal Governments
X. Office of Management and Budget Review Under the Paperwork 
Reduction Act of 1995
XI. Dates

I. 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 https://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 https://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.
---------------------------------------------------------------------------

    \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).
---------------------------------------------------------------------------

    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

[[Page 82496]]

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.
[GRAPHIC] [TIFF OMITTED] TR18NO16.096

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.

[[Page 82497]]

    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).

II. 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:

    ``[S]afe'' 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,

[[Page 82498]]

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.
[GRAPHIC] [TIFF OMITTED] TR18NO16.097

    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,

[[Page 82499]]

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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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.
[GRAPHIC] [TIFF OMITTED] TR18NO16.098


[[Page 82500]]


    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:

    [H]istorical 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.

III. 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)).

IV. 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

[[Page 82502]]

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)).
---------------------------------------------------------------------------

    \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)).
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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, ``[T]he number of 
employees required to work atop rolling stock is minimal (<1%)'' (Ex. 
OSHA-S029-2006-0662-0320; see also Exs. 148 (NGFA--``At best, a small 
percentage of the employees . . . are exposed); 181 (American Truck 
Dealers/National Automobile Dealers Association (ATD/NADA)--less than 
10 percent of employees)).
    Other stakeholders, however, including some who oppose requiring 
fall protection, said a significant number/percentage of employees must 
climb on or access the tops of rolling stock and motor vehicles to 
perform a wide range of tasks, including loading/unloading, tarping, 
maintenance and repair, inspections, sampling, snow and ice removal, 
and other tasks (e.g., Exs. 63; 121; 158; OSHA-S029-2006-0662-0350). 
For instance, Clear Channel Outdoors (CCO) said that nearly 80 percent 
of their field employees climb on motor vehicles (Ex. 121). Ferro 
Corporation estimated that almost one-half of employees at a typical 
plant climb onto the top of rolling stock and bulk trucks to perform 
tasks (Ex. OSHA-S029-2006-0662-0177).
    Second, a number of stakeholders stated that fall protection is not 
necessary on rolling stock and motor vehicles because worker exposure 
to fall hazards is limited. Several stakeholders said exposure is 
``infrequent,'' ``brief and sporadic'' (Exs. 124; 181; 183; 187;

[[Page 82506]]

OSHA-S029-2006-0662-0124; OSHA-S029-2006-0662-0183; OSHA-S029-2006-
0662-0237). Other stakeholders maintain exposure to fall hazards on 
rolling stock and motor vehicles is more frequent and widespread. For 
example, Dynamic Scientific Controls (DSC) said fall hazards are 
present ``daily in almost every plant that receives and ships'' 
products (Ex. OSHA-S029-2006-0662-0227; see also Exs. 307; 329 (1/20/
2011, p. 142)).
    Third, some stakeholders assert fall protection is not necessary on 
rolling stock and motor vehicles because the heights employees climb do 
not pose fall hazards. For instance, ATA said the height of most 
commercial vehicle trailers is no more than 49 to 50 inches (e.g., 
``step-downs'' and ``low boys''), which only nominally exceeds the 4-
foot trigger (Ex. 187). Other stakeholders, however, reported that 
workers must climb significantly higher than 50 inches on motor 
vehicles, particularly tanker and hopper trucks, to perform tasks, some 
of which are the tasks they perform most frequently (e.g., Exs. 130; 
198; 307; OSHA-S029-2006-0662-0208). Even where workers only climb 49 
to 50 inches onto a trailer or flatbed truck, some stakeholders said 
there is a risk of serious injury from falls (Exs. 63; 302; 329 (1/20/
2011, pgs. 156-60)).
    Fourth, a number of stakeholders said fall protection is not 
necessary because no or few injuries from falls off rolling stock and 
motor vehicles have occurred in their establishments or industry (Exs. 
63; 121; 148; 162; 181; 237; OSHA-S029-2006-0662-0219; OSHA-S029-2006-
0662-0237; OSHA-S029-2006-0662-0252; OSHA-S029-2006-0662-0320). Douglas 
Greenhaus, with ATD/NADA, said:

    I've spent over twenty-five years working with truck dealerships 
on matters involving employee health and safety. In that time, I 
have only rarely heard of injuries arising from falls from 
commercial trucks, tractors, or trailers (Ex. 181. See also, OSHA-
S029-2006-0662-0237).

    The Cargo Tank Risk Management Committee (CTRMC) stated:

    While falls from the top of tank trailers can result in serious 
injury, the actual frequency of such injuries is very rare. A 
typical large cargo tank motor vehicle fleet makes over 300 delivers 
per day and has averaged less than 2 falls from its tank trailers 
per year (Ex. 63).

    Stakeholders pointed out that industry surveys also show falls from 
rolling stock and motor vehicles were low. McNeilus Trucking reported 
that a 2002 Illinois Ready Mix Concrete Association survey found only 
two falls from ready-mix concrete trucks occurred in over 66 million 
climbs (Ex. OSHA-S029-2006-0662-0219). According to an International 
Liquid Terminals Association's (ILTA) 2010 annual survey, six of the 
221 (2.7%) injuries were falls from rolling stock and motor vehicles, 
which ``represent a very small proportion of the total number of 
recordable incidents'' (Ex. 335). A NGFA survey of 901 facilities 
showed that during a two-year period (2007-09), during which the 
facilities handled 1.5 million railcars and 1.4 million motor vehicles, 
no fatalities and only 12 injuries occurred (Ex. 148).
    By contrast, a number of stakeholders said falls from rolling stock 
and motor vehicles are a serious problem that have resulted in worker 
deaths and serious injuries (e.g., Exs. 130; 155; 257; 302; 307; 329 
(1/20/2011, pgs. 142, 150,151-152, 156-57); 335; 355-11; OSHA-S029-
2006-0662-0207). In the rail transportation industry, Fall Protection 
Systems Corp. (FPS) reported that they documented, based on site visits 
and speaking to customers, more than 50 falls in a 10-year period, 14 
of which resulted in death and 30 in serious injuries.
    Stakeholders reported a similar experience in the truck 
transportation industry. For example, Rick Hunter, of the Alabama 
Trucking Association Workers Compensation Fund, said:

    Each year drivers and shop [technicians] are injured from falls 
from tankers and flatbed trailers. I know of 4 deaths from this type 
fall in Alabama'' (Ex. 257).

    Cameron Baker, with Standfast USA, testified that one truck company 
with more than 900 drivers, reported an average of 31 falls per year 
during a nine-year period (1998-2006) (Exs. 329 (1/20/2011, pgs. 151-
52); 355-11). He estimated that the total cost to the company for those 
fall injures was $3.33 million (Ex. 355-11). Standfast also submitted 
information indicating that rolling stock and motor vehicle fall 
injuries are increasing (Ex. 355-11).
    Fifth and finally, a number of stakeholders said employers already 
are using effective measures to protect workers on rolling stock and 
motor vehicles and requiring additional measures in the final rule will 
not increase worker safety (e.g., Exs. 63; 121; 124; 142; 147; 148; 
158; 162; 169; 181; 190; 335). The measures these stakeholders are 
using include:
     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

[[Page 82507]]

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:

    [T]he 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\
---------------------------------------------------------------------------

    \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).
---------------------------------------------------------------------------

    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. . . . [W]hen 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

[[Page 82508]]

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'':

    [T]he 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)).
---------------------------------------------------------------------------

    \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)).
---------------------------------------------------------------------------

    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, 
``[i]n 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.'' . . . [D]eterminations 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\
---------------------------------------------------------------------------

    \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:
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

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

[[Page 82510]]

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

[[Page 82511]]

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

[[Page 82512]]

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

[[Page 82513]]

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.

[[Page 82514]]

    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

[[Page 82515]]

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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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

[[Page 82516]]

(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.
---------------------------------------------------------------------------

    \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)).
---------------------------------------------------------------------------

    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

[[Page 82517]]

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.,

[[Page 82518]]

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

[[Page 82519]]

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

[[Page 82520]]

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

[[Page 82521]]

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

[[Page 82522]]

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 ``[a]ll 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\
---------------------------------------------------------------------------

    \13\ Combustible Dust in Industry: Preventing and Mitigating the 
Effects of Fire and Explosion available from OSHA's Web site at: 
https://www.osha.gov/dts/shib/shib073105.html.
    \14\ Hazard Alert: Combustible Dust Explosions available from 
OSHA's Web site at: https://www.osha.gov/OshDoc/data_General_Facts/OSHAcombustibledust.pdf.
    \15\ Combustible Dust National Emphasis Program available from 
OSHA's Web site at: https://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: https://www.osha.gov/dep/combustible_dust/combustible_dust_nep_rpt_102009.html.
---------------------------------------------------------------------------

    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

[[Page 82523]]

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-regulate[s] 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.
---------------------------------------------------------------------------

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

    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 ``[h]ow much 
[combustible dust] is too much?''; ``[w]hat must an employer do at what 
dust level?''; and ``[s]hould 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

[[Page 82524]]

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:

    [A]pplying 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:

[[Page 82525]]

``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 ``[t]o 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: ``[P]roposed 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. . . . [T]he 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:

    [T]he 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 ``[t]he term may have a different meaning to a small 
business owner than it does to an OSHA inspector'' (Ex. 173).

[[Page 82526]]

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 
``[t]here 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 ``[d]esigned, 
constructed, and maintained to support their maximum intended load'' 
(proposed paragraph (b)(1)), and ``[n]ot loaded beyond their maximum 
intended load'' (proposed paragraph (b)(2)).

[[Page 82527]]

    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)):

    [E]mployers 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:
---------------------------------------------------------------------------

    \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).


[[Page 82528]]


    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

[[Page 82529]]

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).


[[Page 82530]]


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

[[Page 82531]]

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 ``exercise[s] 
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,

[[Page 82532]]

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

[[Page 82533]]

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.

[[Page 82534]]

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 
``[p]roper 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

[[Page 82535]]

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, ``[F]alls 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

[[Page 82536]]

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

[[Page 82537]]

``pull[ing] the object up or lower[ing] 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.

[[Page 82538]]

    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

[[Page 82539]]

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

[[Page 82540]]

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.
---------------------------------------------------------------------------

    \20\ OSHA letter to Mr. Bruce Clark available at: https://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_id=25177.
---------------------------------------------------------------------------

    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

[[Page 82541]]

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 ``[r]edesigning 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

[[Page 82542]]

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

[[Page 82543]]

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 ``[w]hen unavoidable obstructions 
are encountered.'' The final rule allows a reduction of the minimum 
clearance to 24 inches in those cases, provided that

[[Page 82544]]

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 ``[t]he 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 ``[a]n 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

[[Page 82545]]

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., ``[t]he 
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

[[Page 82546]]

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

[[Page 82547]]

``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

[[Page 82548]]

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).

[[Page 82550]]

    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

[[Page 82551]]

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, [alpha]L = 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 ``[e]ach 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: https://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_id=24564.
---------------------------------------------------------------------------

    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

[[Page 82552]]

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

[[Page 82553]]

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

[[Page 82554]]

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.

[[Page 82555]]

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.). ``[T]he 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 . . . [T]he 
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.).
---------------------------------------------------------------------------

    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

[[Page 82556]]

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

[[Page 82557]]

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: https://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

[[Page 82558]]

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: 
https://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: https://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: 
https://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 . 
. . [S]ection 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

[[Page 82559]]

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:

    [I]t 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

[[Page 82560]]

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.
---------------------------------------------------------------------------

    \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).
---------------------------------------------------------------------------

    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, ``[W]e 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,] [a]n 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

[[Page 82561]]

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. . . . [W]e 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

[[Page 82562]]

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

[[Page 82563]]

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:
---------------------------------------------------------------------------

    \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).
---------------------------------------------------------------------------

     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

[[Page 82564]]

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:

    [C]urbing 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

[[Page 82565]]

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.
---------------------------------------------------------------------------

    \30\ OSHA letter to Mr. Turner available at: https://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_id=25161.
    \31\ OSHA letter to Mr. Cole available at: https://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_id=28121.
---------------------------------------------------------------------------

    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

[[Page 82566]]

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\
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

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

[[Page 82567]]

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\
---------------------------------------------------------------------------

    \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: 
https://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_id=22722.
---------------------------------------------------------------------------

    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 . . 
. . [O]f 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

[[Page 82569]]

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:

    [W]orkers 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

[[Page 82571]]

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.
---------------------------------------------------------------------------

    \35\ California Code of Regulations, Title 8 Chapter 4, 
Subchapter 7 Article 5, Sec.  3286.
---------------------------------------------------------------------------

    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: ``[T]he 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).
---------------------------------------------------------------------------

    \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

[[Page 82573]]

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:

    [T]here 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).
---------------------------------------------------------------------------

    \37\ Mr. Adkins said the term ``wind speed'' refers to wind 
gusts (``[W]hen 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).
---------------------------------------------------------------------------

    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'

[[Page 82576]]

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

[[Page 82577]]

(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.
---------------------------------------------------------------------------

    \39\ OSHA notes that RDS often include tiebacks, but they are 
not a required component of RDS.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \40\ SHIB 03-24-2006 is available from OSHA's Web site at: 
https://www.osha.gov/dts/shib/shib032404.html.
---------------------------------------------------------------------------

    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

[[Page 82578]]

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.
---------------------------------------------------------------------------

    \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: https://www.osha.gov/portable_ladders/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_id=22722).
---------------------------------------------------------------------------

    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

[[Page 82579]]

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. . . . [T]hat 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

[[Page 82580]]

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

[[Page 82581]]

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, ``[I]t 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:


[[Page 82582]]


    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 [B]lackberry, 
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:

    [T]here 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

[[Page 82583]]

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

[[Page 82584]]

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.
    [E]mployers 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

[[Page 82585]]

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, 
``[W]ork 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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    \43\ OSHA letter to Mr. Osborne available at: https://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.
---------------------------------------------------------------------------

    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 ``[s]ince 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:
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

     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). . . .

[[Page 82591]]

    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:
---------------------------------------------------------------------------

    \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).
---------------------------------------------------------------------------

     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

[[Page 82592]]

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);
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

     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

[[Page 82593]]

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 ``[t]wo 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 ``driv[ing] a 
nail into the roof and secur[ing] 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

[[Page 82594]]

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,

[[Page 82595]]

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\
---------------------------------------------------------------------------

    \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)).
---------------------------------------------------------------------------

    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:

    [I]f 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 fork[hyphen]lifted 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

[[Page 82596]]

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

[[Page 82597]]

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\
---------------------------------------------------------------------------

    \50\ See also Letter to Mr. Stephen Hazelton (5/23/2005) that 
states:
    [T]he [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.
---------------------------------------------------------------------------

    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)

[[Page 82598]]

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));
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

     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

[[Page 82599]]

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

[[Page 82600]]

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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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 ``[t]he 
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:

    [C]ages 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 . . . [C]ages 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:

    [T]his 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\
---------------------------------------------------------------------------

    \53\ The HSE Report is available at https://www.hse.gov.uk/research/rrpdf/rr258.pdf.
---------------------------------------------------------------------------

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:
---------------------------------------------------------------------------

    \54\ For purposes of final paragraph (b)(9)(i)(A), the term 
``existing fixed ladder'' includes any fixed ladder installed before 
November 19, 2018.
---------------------------------------------------------------------------

     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)).

[[Page 82604]]

    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

[[Page 82605]]

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:

[[Page 82606]]

     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:

    [H]aving 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.

[[Page 82607]]

    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:


[[Page 82608]]


    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:

[I]n 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 ``[t]he 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:

[U]rge[s] 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 Gannet[t] 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, ``[T]he 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 address[ed] earlier in these

[[Page 82609]]

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 
``[t]here 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 ``[w]e 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\
---------------------------------------------------------------------------

    \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: https://www.osha.gov/pls/imis/accidentsearch.html.
    The referenced falls are in Ex. 393 under the following 
inspection numbers: 310696489; 126063924; and 126062694.
---------------------------------------------------------------------------

    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

[[Page 82610]]

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

[[Page 82611]]

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.
---------------------------------------------------------------------------

    \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)).
---------------------------------------------------------------------------

    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.

[[Page 82612]]

    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\
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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:
---------------------------------------------------------------------------

    \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).
---------------------------------------------------------------------------

     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:


[[Page 82613]]


    [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).
---------------------------------------------------------------------------

    \61\ OSHA letter to Mr. O'Dea available at: https://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_id=24682.
---------------------------------------------------------------------------

    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:
---------------------------------------------------------------------------

    \62\ OSHA letter to Mr. O'Dea available at: https://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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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

[[Page 82617]]

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 
``[s]elect 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 ``[c]learly, 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

[[Page 82619]]

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

[[Page 82620]]

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

[[Page 82621]]

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/

[[Page 82622]]

1993) \67\). In the letter to Mr. Bredl, OSHA said ``employee 
protection at access openings [must] be equivalent to that of the 
guardrail system.''
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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:

    [T]he 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,

[[Page 82623]]

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 ``[s]ince 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.
---------------------------------------------------------------------------

    \68\ Synthetic rope includes plastic rope, therefore, OSHA does 
not carry forward in the final rule the term ``plastic.''
---------------------------------------------------------------------------

    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.

[[Page 82624]]

    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).)
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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.

[[Page 82625]]

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:

    [W]e 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 final rule. 
OSHA agrees with commenters that the proposed access path requirement 
is not necessary, especially on large roofs that require employers to 
erect long access paths. Evidence in the record suggests that many low-
slope roofs in general industry are quite large. For example, Edison 
Electric Institute (EEI) commented that ``[s]ome flat roofs in a 
general industry setting could be the size of several football fields'' 
(Ex. 207). Although OSHA is deleting the proposed access path 
requirement, the Agency stresses that employers still must train 
workers, in accordance with final Sec.  1910.30, about the potential 
fall hazards in the work area, which includes accessing the work area, 
and the proper set-up and use of designated areas.
Paragraph (e)--Covers
    Final paragraph (e) addresses criteria and practices for covers 
that employers use to protect workers from falling into a hole in a 
walking-working surface, including holes in floors, roofs, skylights, 
roadways, vehicle aisles, manholes, pits, and other walking-working 
surfaces. The final rule consolidates and updates the cover criteria 
and practice requirements in the existing rule (e.g., existing 
Sec. Sec.  1910.23(a)(5), (8), and (9), and 1910.23(e)(7) and (8)). In 
addition, the final rule consolidates the proposed cover requirements, 
which are similar to those in the construction fall protection standard 
in Sec.  1926.502(i).
    Final paragraph (e)(1) requires that employers ensure any cover 
they use to prevent workers from falling into a hole in a walking-
working surface is capable of supporting, without failure, at least 
twice the maximum intended load that may be imposed on the cover at any 
one time. The final rule clarifies and simplifies the proposed rule, 
and makes it consistent with other provisions in the final rule, by 
replacing the proposed language with ``maximum intended load,'' which 
OSHA consistently uses throughout the final rule. The final rule in 
Sec.  1910.21(b) defines ``maximum intended load'' 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; in this case, the 
walking-working surface is a cover. The final rule is consistent with 
A10.18-2012 (Section 7.1.1.4), which requires that trench and manhole 
covers support at least twice the maximum intended load.
    The language in the final rule differs from the proposal, the 
construction fall protection standard, and the existing rule. The 
proposed and construction rules require that covers in roadways and 
vehicle aisles be capable of supporting ``twice the maximum axle load 
of the largest vehicle expected to cross over the cover'' (see proposed 
paragraph (e)(1) and Sec.  1926.502(i)(1)), and that all other covers 
support ``twice the weight of employees, equipment, and materials 
imposed on the cover at any one time'' (proposed paragraph (e)(2)). The 
existing rule in Sec.  1910.23(e)(7) states that trench, conduit, and 
manhole covers must support a truck rear-axle load of at least

[[Page 82628]]

20,000 pounds, and that floor-opening covers consist of ``any material 
that meets the strength requirements.'' \70\
---------------------------------------------------------------------------

    \70\ OSHA notes that A10.18-2012 (Section 7.1.1.3) is consistent 
with the proposed rule.
---------------------------------------------------------------------------

    OSHA believes that using the single, uniform term ``maximum 
intended load'' makes the final rule easier to understand than the 
proposed rule, and is consistent with a number of other requirements in 
the final rule. In addition, the term clearly states that covers must 
be capable of supporting twice the weight and force expected to be 
placed on them. By using the term ``maximum intended load,'' which 
includes the weight and force of all vehicles, equipment, tools, 
materials, workers, and other loads, OSHA consolidates the cover 
requirements into a single provision that applies the same, uniform 
criteria to all covers. OSHA also believes that establishing a uniform 
standard for all covers eliminates potential confusion and needless 
repetition.
    Ellis commented that the proposed rule did not define the 
``adequacy and walkability'' of covers (Ex. 155). The Agency believes 
that paragraph (e)(1) of the final rule establishes ``adequacy'' 
criteria using performance-based measures (i.e., support twice the 
maximum intended load), which is consistent with the OSH Act at Section 
6(b)(5). OSHA believes this performance-based approach also gives 
employers flexibility in selecting the material for a cover that they 
believe best meets the requirement in final paragraph (e)(1). Thus, 
employers may use covers made of the materials Ellis suggests so long 
as the cover supports twice the maximum intended load. In this regard, 
Ellis noted:

    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 (Ex. 155).

OSHA notes that Appendix A of A10.18-2012 (Ex. 388) provides 
information on hole covers, including material used for them, that 
provide additional guidance on the issue Ellis raises. As for 
``walkability,'' if the employer anticipates that an employee will walk 
across a hole cover, the cover must meet the requirements of final 
Sec.  1910.22.
    Final paragraph (e)(2) (proposed paragraph (e)(3)) requires that 
employers secure covers to prevent accidental displacement. Accidental 
displacement of hole covers can occur due to a number of factors. For 
example, weather conditions such as wind, floods, snow, and ice can 
cause covers to become displaced. Heavy equipment running back and 
forth over covers also can loosen or displace them.
    The final rule expands and revises both the existing and proposed 
rules. The final rule expands existing Sec.  1910.23(a)(9), which only 
applies to ``floor holes,'' to include holes in any walking-working 
surface that employers protect with covers. Final paragraph (e)(2) 
expands and revises the proposed rule in two ways. First, the final 
rule eliminates, as unnecessary, the examples in proposed paragraph 
(e)(3) of conditions that may cause displacement of covers. Second, the 
final rule revises the proposed language to make clear that employers 
must keep covers firmly secured at all times. The proposed rule in 
paragraph (e)(3), like the construction fall protection standard in 
Sec.  1926.502(i)(3), only specified that employers secure covers 
firmly ``when installed.'' However, in light of Ellis' comment that 
``[l]ong[hyphen]term covers which are acknowledged to be weak or 
degrade in the elements should have minimum requirements to follow for 
safety and structural inspection'' (Ex. 155), OSHA believes it is 
important to clarify that employers ensure that covers remain firmly 
secured after installation.
    The final rule does not retain proposed paragraphs (e)(4) and (5). 
Proposed paragraph (e)(4) required that employers ensure covers were 
color coded or marked with the word ``HOLE'' or ``COVER'' to warn 
workers of the hazard. Proposed paragraph (e)(5) specified that 
proposed paragraph (e)(4) did not apply to cast-iron manhole covers or 
steel grates, such as those on streets and roadways. OSHA drew both 
proposed requirements from the construction fall protection standard in 
Sec.  1926.502(i)(4).
    In the proposed rule, OSHA requested comment on the need to include 
proposed paragraph (e)(4) in the final rule and information on the 
extent to which employers already mark or color code covers. OSHA 
received one comment on the proposed requirement. NGS said the proposed 
requirement was not necessary because ``[t]he proposed standard already 
requires that covers be properly designed, constructed and secured, 
thus engineering out the hazard'' (Ex. 180). OSHA agrees with this 
comment; the requirements in final paragraphs (e)(1) and (2), that 
employers ensure covers are strong enough to support the weight to be 
placed on them and are secured in place at all times, eliminates the 
need to also color code or label them as a hazard. Covers that meet the 
requirements of the final rule are not hazards. Therefore, OSHA deletes 
proposed paragraph (e)(4) because it is unnecessary.
    Since the final rule does not carry forward the proposed marking 
requirement, proposed paragraph (e)(5) exempting certain covers from 
that requirement is no longer necessary. NGS also said that proposed 
paragraph (e)(5) is not necessary (Ex. 180). They pointed out that 
``[m]anhole covers and steel grates are already exempt from the marking 
requirement'' (Ex. 180). OSHA agrees. Final paragraphs (e)(1) and (2) 
provide adequate protection; therefore, the Agency is not carrying 
forward the provision in the final rule.
Paragraph (f)--Handrails and Stair Rail Systems
    Final paragraph (f) sets criteria and practice requirements for 
handrails and stair rail systems. These requirements cover height, 
finger clearance, surfaces, stair rail openings, handholds, projection 
hazards, and strength. The final rule in Sec.  1910.21(b) defines 
``stair rail system'' as a barrier erected along the exposed or open 
side of stairways to prevent workers from falling to a lower level, 
while ``handrails'' are rails used to provide workers with a handhold 
for support.
    In final paragraph (f)(1), which addresses handrail height 
criteria, OSHA revised the language on measuring height criteria to 
make it uniform and consistent throughout final paragraph (f)(1). For 
example, final paragraph (f)(1) incorporates uniform terminology (i.e., 
leading edge, top surface) and simplifies how to measure handrail 
height. The final rule adopts the method in A1264.1-2007, which 
specifies that handrails be measured from the leading edge of the tread 
to the top of the handrail (paragraph (f)(1)(i)). New Figures D-12 and 
D-13 show how to make this measurement.
    Final paragraph (f)(1)(i) requires that employers ensure each 
handrail is not less than 30 inches and not more than 38 inches high, 
as measured from the leading edge of the stair tread to the top surface 
of the handrail. The height criteria in final paragraph (f)(1)(i) 
differs from the handrail height in both the existing and proposed 
rules. Existing Sec.  1910.23(e)(5)(ii) requires that handrails be 
between 30 and 34 inches in height. The proposed rule required the 
height of handrails to be between 30 and 37 inches as measured from the 
upper surface of the top rail to the surface of the tread, in line with 
the face of the riser at the forward edge of the tread, which is 
consistent with both the

[[Page 82629]]

construction stairways standard in Sec.  1926.1052(c)(6) and A10.18-
2012 (Section 6.2). The A1264.1-2007 standard, on the other hand, 
specifies that the handrail height must be not less than 34 inches or 
not more than 38 inches as measured from the tread to the top of the 
handrail.
    OSHA revised the final rule in response to a comment from the 
National Fire Protection Association (NFPA), which pointed out that the 
NFPA 101 Life Safety Code, an ``ANSI-accredited national expert code,'' 
permits a 38-inch maximum handrail height (Ex. 97). NFPA recommended 
that the final rule also allow a 38-inch handrail height so handrails 
built in accordance with the NFPA 101-2012, Life Safety Code (Ex. 385) 
would not be ``non-compliant'' (Ex. 97). NFPA also said that their 
recommendation was ``technically sound as borne out by the research of 
Jake Pauls while he was on staff at the National Research Council 
Canada in the 1970s and 1980s'' (Ex. 97). In addition, NFPA appeared to 
suggest a 38-inch maximum handrail height would provide support for a 
broader range or workers (i.e., taller workers) without compromising 
the protection of any worker (Ex. 97).
    OSHA agrees that handrails built in accordance with NFPA 101 are 
acceptable, and is adopting this recommendation in the final rule; 
therefore, in the final rule the Agency increased the maximum handrail 
height by one inch, from 37 inches to 38 inches, which Figure D-12 
illustrates. Since both the existing and proposed handrail height 
requirements come within revised final paragraph (f)(1)(i), OSHA does 
not expect that employers will have any problems complying with the 
final rule. The final rule simply provides employers with greater 
compliance flexibility.
    Final paragraph (f)(1)(ii) establishes the height requirement for 
stair rail systems. Employers must ensure:
     The height of stair rail systems installed before the 
effective date of the final rule, which is January 17, 2017, is not 
less than 30 inches as measured from the leading edge of the stair 
tread to the top surface of the top rail (paragraph (f)(1)(ii)(A)); and
     The height of stair rail systems installed on or after the 
effective date is not less than 42 inches as measured from the leading 
edge of the stair tread to the top surface of the top rail (paragraph 
(f)(1)(ii)(B)).
    The final rule revises the requirements in both the existing and 
proposed rules. The existing rule in Sec.  1910.23(e)(2) requires that 
the height of a stair railing be not less than 30 inches nor more than 
34 inches as measured from the upper surface of the stair tread to the 
top edge of the top rail. The final rule eliminates the maximum height 
requirement for existing stair rail systems.
    The proposed rule would have raised the minimum height of new and 
replacement stair rails to 36 inches. The final rule, however, requires 
that new and replacement systems be at least 42 inches in height. In 
the proposed rule, OSHA explained that a 36-inch minimum height would 
make the general industry requirement consistent with the construction 
stairways standard in Sec.  1926.1052(c)(3), and would afford a 
reasonable level of safety to workers (75 FR 28897). However, OSHA also 
discussed a University of Michigan study indicating that the minimum 
stair rail system height should be 42 inches, and also suggested that 
even 42 inches may not be adequate (Ex. OSHA-S041-2006-0666-0004). OSHA 
also noted that A1264.1-2007 (Section 5.5) establishes a 42-inch 
maximum stair rail system height. The Agency requested comment about 
raising the minimum stair rail system height to 42 inches.
    OSHA received one comment. NFPA recommended raising the minimum 
height of stair rail systems to 42 inches, which would make the final 
rule consistent with the NFPA 101 Life Safety Code (Ex. 97). NFPA 
indicated that a 42-inch minimum stair rail system height would be more 
protective than the proposed height, and that research supported the 
42-inch minimum height. Accordingly, NFPA stated, ``A minimum 42-inch 
high guard is needed to prevent a ninety-fifth percentile male from 
falling over the rail upon striking the side of a stair. This was 
documented in Jake Pauls' work of the 1970s and 1980s while he was on 
staff at the National Research Council Canada'' (Ex. 97). NFPA also 
said that the University of Michigan study supported raising the 
minimum stair rail system height. OSHA agrees that NFPA's 
recommendation would make the final rule more protective for a broader 
range of workers than the proposed rule and, therefore, requires that 
stair rail systems installed on or after the effective date of the 
final rule be at least 42 inches as measured from the leading edge of 
the stair tread to the top surface of the top rail. OSHA notes A10.18-
2012 (Sections 4.1.2 and 5.2) requires that stair rail systems be 42 
inches, plus or minus three inches.
    OSHA also requested comment about whether the final rule should 
establish a maximum height for stair rail systems like A1264.1-2007. In 
the preamble to the proposal, OSHA said the purpose of stair rail 
systems is to prevent workers from falling over the edge of open-sided 
stairways, and that eliminating a maximum height would give employers 
greater flexibility to install stair rail systems they considered to be 
safer (75 FR 28897).
    OSHA notes that the 42-inch stair rail height (final paragraph 
(f)(1)(ii)(B)) is prospective. It only applies to new and replacement 
stair rail systems installed on or after January 17, 2017.
    Under the proposed rule, the new height requirements would have 
taken effect 90 days after the effective date, and Ameren recommended 
lengthening the phase-in period, saying, ``Lead time for material 
orders are often quite longer than three months often up to years to 
order material for large capital projects.'' Ameren stated later, 
``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).
    However, OSHA believes 60 days gives employers adequate time to 
come into compliance with the final rule and to change the 
specifications of any stair rail systems they have on order. The NFPA 
101 Life Safety Code has been in place for a number of years, and the 
NFPA said that today stair rail systems ``are being installed at a 
minimum 42-inch height for compliance with nationally-recognized, 
expert model codes like NFPA 101 Life Safety Code'' (Ex. 97). 
Accordingly, OSHA believes most employers already are in compliance 
with the final rule, and the remainder will be able to comply with this 
prospective requirement when the final rule becomes effective. The 
final rule will not affect existing stair rail systems; therefore, 
there is no requirement to retrofit stair rail systems. The final rule 
will continue to allow stair rails installed before the new requirement 
takes effect to meet the existing requirement.
    Finally, OSHA deleted the proposed note to paragraphs (f)(1)(i) and 
(ii) because it is unnecessary. The proposed note explained the 
criteria for measuring the height of handrails and stair rail systems. 
The final rule includes the measurement criteria in final paragraphs 
(f)(1)(i) and (ii). OSHA believes this deletion makes the final rule 
easier to read and follow than the proposal.
    Final paragraph (f)(1)(iii) permits employers to use the top rail 
of stair rail systems as a handrail only when:
     The height of the stair rail system, which Figure D-13 
illustrates, is not less than 36 inches and not more than

[[Page 82630]]

38 inches as measured at the leading edge of the stair tread to the top 
edge of the top rail (final paragraph (f)(1)(iii)(A)); and
     The top rail of the stair rail system meets the other 
handrail requirements in final paragraph (f) of this section (final 
paragraph (f)(1)(iii)(B)).
    The proposed provision was consistent with the construction 
stairways standard in Sec.  1926.1052(c)(7), which also allows 
employers to use top rails of stair rail systems as a handrail under 
specified conditions. OSHA believes a top rail of a stair rail system, 
under some conditions, may effectively and safely perform the function 
of both a stair rail system and handrail. Allowing employers to use 
stair rail top rails as handrails under these conditions provides 
employers with compliance flexibility without compromising worker 
safety when employers comply with the required conditions of use.
    In response to NFPA's comments, OSHA revised final paragraph 
(f)(1)(iii) in three ways. First, for the reasons discussed final 
paragraph (f)(1)(i), the final rule raises the required height of stair 
rail top rails used as handrails to not less than 36 inches, but not 
more than 38 inches, from the proposed height of not less than 36 
inches, but not more than 37 inches. This change makes the final rule 
consistent with the NFPA 101 Life Safety Code, and will protect a 
broader range of workers (Ex. 97).
    Second, because the final rule requires that all stair rail systems 
installed on or after the effective date, which is January 17, 2017, 
must be at least 42 inches in height, final paragraph (f)(1)(iii)(A) is 
only applicable to stair rail systems installed before the effective 
date. Third, OSHA adds to the final rule the requirement that employers 
may use stair rails as handrails only if the stair rails also meet the 
other requirements in paragraph (f). NFPA recommended that OSHA allow 
the use of stair rails as handrails only if they also meet the handhold 
requirements in proposed paragraph (f)(5). NFPA recommended an addition 
to the proposed provision, stating:

    [The addition] recognize[s] the stair rail as an acceptable 
handrail not only based on height but if it additionally provides 
the handhold required of a handrail. The user would not otherwise 
know that the stair rail needs graspability as the provision of 
1910.29(f)(5) is written to have applicability to handrails, not 
specifically to stair rails that are at an appropriate height so as 
to serve as a handrail (Ex. 97).

    OSHA agrees with NFPA that the final standard should only allow 
employers to use stair rail top rails as handrails if the top rail 
``has the shape and dimension necessary so employees can grasp it 
firmly to avoid falling'' (see final paragraph (f)(5)). However, OSHA 
also believes that employers can use stair rails as handrails only if 
the stair rails also meet other handrail requirements such as having 
smooth surfaces (see final paragraph (f)(3)) and no projection hazards 
(see final paragraph (f)(6)). OSHA revises the final rule accordingly.
    Final paragraph (f)(2) requires that employers ensure there is a 
finger clearance of at least 2.25 inches between handrails (including 
the top rail of a stair rail system being used as handrails) and any 
other object (such as a wall). Workers need adequate clearance space so 
they are able to maintain a firm grasp on the handrail while they go up 
and down workplace stairs.
    The proposed rule would have required a three-inch minimum 
clearance for handrails and stair rails. OSHA explained that the 
proposed minimum clearance would make the general industry rule 
consistent with the construction stairways standard (Sec.  
1926.1052(c)(11)), which also requires a minimum clearance of three 
inches for handrails that will not be a permanent part of the structure 
being built.
    In 1990, OSHA first proposed revising the existing three-inch 
finger clearance requirement to a minimum of 1.5 inches. OSHA explained 
that the revision would make the rule consistent with local building 
codes; ANSI A12.1-1973, Safety Requirements For Floor and Wall 
Openings, Railings, and Toeboards; draft revised A1264.1; and ANSI 
A117.1-1986, Providing Accessibility and Usability for Physically 
Handicapped People (Ex. OSHA-S041-2006-0666-0054). The A1264.1-2007 
(Section 5.9) standard eventually adopted a 2.25-inch minimum finger 
clearance.
    In the 2010 proposal, OSHA said it proposed to retain the existing 
three-inch minimum clearance so the general industry rule would be 
consistent with the construction stairways standard, thereby 
facilitating compliance for employers who perform both general industry 
and construction activities. OSHA also said the difference between the 
three-inch minimum clearance in the proposed, existing, and 
construction standards and the 2.25-inch minimum clearance in A1264.1-
2007 was not ``significant'' (75 FR 28897). Nonetheless, OSHA asked for 
comment on whether the Agency should adopt the 2.25 inch requirement 
instead.
    NFPA submitted a comment recommending that OSHA adopt a 2.25-inch 
minimum clearance for handrails, which the NFPA 101 Life Safety Code 
requires, for the following reasons:


    (1) for consistency among the model codes [which require only a 
2.25-inch finger clearance], (2) so that owners operators are not 
surprised with a violation after complying with the model codes, and 
(3) because there is no technical basis for requiring more than 2\1/
4\ inches in order to provide a usable handrail. Remember that for 
years and years the model codes' minimum finger clearance was 1\1/2\ 
inches but concerns over users skinning their knuckles on rough wall 
surfaces led to research that identified the 2\1/4\ inch criterion 
as necessary and adequate (Ex. 97).

    NFPA also disagreed with the Agency's characterization of the 
difference between OSHA's existing and proposed three-inch minimum 
finger clearance and the 2.25 clearance in A1264.1-2007 as ``not 
significant,'' stating:

    Where a 3-inch finger clearance is used for handrails at both 
sides of a stair in place of a 2\1/4\-inch finger clearance, the 
stair's rated egress capacity drops by 5 persons. Owners of new 
buildings want to maximize egress capacity with respect to the space 
allotted to a stair, and the loss of egress credit for 5 persons is 
significant. So compliance with the proposed OSHA requirement will 
add cost (Ex. 97).

    With the exception of NFPA's claim that a three-inch clearance will 
increase building construction costs, OSHA finds convincing NFPA's 
reasons for recommending a 2.25-inch minimum clearance space. A 2.25-
inch minimum finger clearance will make the final rule consistent with 
NFPA 101 as well as ANSI/ASSE A1264.1-2007, and the International 
Building Code-2012 (IBC-2012). OSHA believes that following those 
consensus standards will prevent confusion and ensure the final rule 
complies with section 6(b)(8) of the OSH Act. In addition, since 2.25 
inches is a minimum clearance, employers may continue to use a three-
inch clearance. Therefore, OSHA believes the 2.25-inch minimum 
clearance in the final rule provides greater compliance flexibility for 
employers.
    Final paragraph (f)(3) requires that employers ensure handrails and 
stair rail systems are smooth-surfaced to protect workers from injury, 
such as punctures or lacerations, and to prevent catching or snagging 
of clothing, including protective clothing. OSHA revises the final 
provision to make it consistent with final (b)(6), for guardrail 
systems.
    The final provision is consistent with the existing rules for stair 
rails in Sec.  1910.23(e)(3)(v)(a) and handrails in Sec.  
1910.23(e)(5)(i), as well as the construction stairways standard in

[[Page 82631]]

Sec.  1926.1052(c)(8). The A10.18-2012 standard (Section 5.2) also 
contains a similar requirement that stairways ``shall be free of sharp 
edges, splinters, or similar conditions.'' OSHA did not receive any 
comments on the proposed provision and adopts it as discussed.
    Final paragraph (f)(4), like the proposed rule, requires that 
employers ensure no opening in a stair rail system exceeds 19 inches at 
its least dimension. Final Sec.  1910.21(b) defines ``stair rail 
system'' as a barrier erected along the ``exposed or open side of 
stairways to prevent employees from falling to a lower level.'' Stair 
rail systems, like guardrail systems, need to limit the openings in the 
exposed or open sides of stairways to prevent workers from falling 
through to a lower level. Limiting the openings also can prevent 
objects from falling through the opening and hitting workers who are 
below, although openings that are 19 inches apart may not prevent some 
objects from falling.
    The final provision is consistent with the construction fall 
protection and stairways standards in Sec. Sec.  1926.502(b)(2)(iii) 
and (iv) and 1926.1052(c)(4)(iii) and (iv), respectively, for openings 
in stair rail and guardrail systems. The existing rule in Sec.  
1910.23(e)(1) requires a midrail ``approximately halfway between the 
top rail and the [walking-working surface].'' OSHA did not receive any 
comments on the proposed provision and adopts it as discussed above.
    Final paragraph (f)(5), like the proposed rule, requires that 
employers ensure handrails (including top rails of stair rail systems 
serving as handrails (final paragraph (f)(1)(iii)), have the shape and 
dimension necessary so workers can grasp the handrail firmly. The final 
rule is similar to the construction stairways standard in Sec.  
1926.1052(c)(9). The existing rule at existing Sec.  1910.23(e)(5)(i) 
requires that handrails be of a rounded or other section that furnishes 
an adequate handhold to avoid falling. Similarly, the A1264.1-2007 
standard (Section 5.8) requires that handrails be rounded with a cross 
sectional design that furnishes an adequate handhold for anyone 
grasping it to avoid failing. A10.18-2012 (Section 6.3) also requires a 
handhold to grasp to avoid falling.
    OSHA received a comment from NFPA saying the proposed requirement 
was too vague. In its comment, NFPA stated:

    The provision . . . requires someone to judge whether a 
handrail's shape and dimensions provide a firm handhold for 
employees. The requirement is too performance-based without 
providing guidance as to what is intended with respect to a `firm' 
handhold. Its enforcement will be subjective (Ex. 97).

NFPA recommended that OSHA instead adopt the following language on 
handhold criteria from the NFPA 101 Life Safety Code:

    Handrails conforming with one of the following features are 
deemed to comply with the requirement for handhold: (i) The handrail 
has a circular cross section with an outside diameter of not less 
than 1\1/4\ in. (3 cm) and not more than 2 in. (5 cm), or (ii) the 
handrail has a shape that is other than circular with a perimeter 
dimension of not less than 4 in. (10 cm), but not more than 6\1/4\ 
in. (16 cm), and with the largest cross-sectional dimension not more 
than 2\1/4\ in. (6 cm)(Ex. 97).

    OSHA does not believe it is necessary to add to final paragraph 
(f)(5) the specification language NFPA recommends. Requirements on 
handrail and stair rail system handholds have been in place for many 
years, and OSHA is not aware of any employers experiencing difficulties 
in ensuring handrails, and top rails serving as handrails, are of the 
size and dimension that provide a handhold that workers can grasp 
firmly. OSHA also believes that retaining the performance-based 
language gives employers flexibility to select the shape and size of 
handrail that will provide the most effective handhold in particular 
workplace situations. For example, the performance-based language 
allows employers to take advantage of anthropometric testing and 
research to select the size and shape of handrails that provide a firm 
grasp for the broadest range of workers. Although OSHA is not adopting 
the language NFPA recommends, the Agency notes that employers who 
install handrails and top rails of stair rails systems that meet the 
specification of the NFPA 101 Life Safety Code will be in compliance 
with final paragraph (f)(5).
    Final paragraph (f)(6), like the proposed rule, requires that 
employers ensure the ends of handrails and stair rail systems do not 
present any projection hazard. OSHA drew the final provision from the 
existing general industry rule in Sec.  1910.23(e)(5)(i) and the 
construction stairways standard in Sec.  1926.1052(c)(10). The final 
rule also is consistent with A1264.1-2007 (Section 5.8).
    OSHA believes it is necessary to prevent or eliminate projection 
hazards so workers do not walk or fall into a protruding handrail or 
stair rail system and get injured. Projection hazards also can snag or 
catch workers' clothing or equipment and cause workers to lose their 
balance and fall on, or down, the stairway. A fall on a stairway could 
seriously injure, or even kill, a worker. OSHA did not receive any 
comments on the proposed rule and adopts the provision as discussed 
above.
    Final paragraph (f)(7), similar to the proposed rule, requires that 
employers ensure handrails, and the top rails of stair rail systems, 
are capable of withstanding, without failure, a force of at least 200 
pounds applied in any downward or outward direction within 2 inches of 
any point along the top edge of the rail.
    OSHA believes it is necessary that handrails and top rails on stair 
rail systems be able to withstand a force of at least 200 pounds to 
protect workers from falling to a lower level when they lean on or over 
handrails and top rails, or if they fall against a rail. If handrails 
and top rails cannot support a 200-pound force, workers could receive 
serious injuries or die from falling over the open or exposed side of 
the stairway.
    The proposed rule required that handrails and top rails be capable 
of withstanding the specified test load ``without permanent deformation 
or a loss of support.'' The final rule replaces the proposed language 
with the term ``without failure.'' Final Sec.  1910.21(b) defines 
``failure'' as a load refusal, breakage, or separation of component 
parts. It is the point at which the ultimate strength is exceeded which 
encompasses loss of support. Failure does not include all ``permanent 
deformation,'' but rather deformation that reduces the structural 
integrity or support capability of a part or member. OSHA believes the 
term ``without failure'' clearly reflects the type of deformation the 
final rule addresses. In addition, OSHA uses the term ``without 
failure'' throughout the final rule (e.g., final paragraphs (b)(3), 
(b)(5), (e)(1), and (i)(6)), which should facilitate understanding of 
the final rule, and help to ensure consistent interpretation of the 
final rule.
    The final rule is almost identical to the construction stairways 
standard in Sec.  1926.1052(c)(5). The existing general industry rule 
included strength-criteria requirements (``200 pounds applied in any 
direction at any point'') for ``completed'' stair rail systems (see 
existing Sec.  1910.23(e)(3)(iv)) and handrail mountings (see existing 
Sec.  1910.23(e)(5)(iv)). Similarly, the A1264.1-2007 standard ( 
Section 5.6.1) specifies that completed railing systems must be able to 
withstand a concentrated load of 200 pounds ``applied in any direction, 
except up, at the midpoint between posts without exceeding maximum 
allowable deflection.'' OSHA did not receive any

[[Page 82632]]

comments on the proposed provision and adopts it with the revised 
language discussed above.
Paragraph (g)--Cages, Wells, and Platforms Used With Fixed Ladders
    Final paragraph (g) establishes criteria and practice requirements 
for cages, wells, and platforms used with fixed ladders. As discussed 
above in this preamble, final Sec.  1910.28 limits, and eventually 
phases out, the use of cages and wells as a means of fall protection on 
fixed ladders. After the final phase-out deadline, employers must 
ensure all fixed ladders have ladder safety systems or personal fall 
arrest systems to protect workers from falling to a lower level. Final 
paragraph (g) includes an informational note reminding employers that 
final Sec.  1910.28 establishes the requirements that employers must 
follow on the use of cages and wells as a means of fall protection. 
OSHA notes that the requirements in final paragraph (g) do not apply 
once a ladder safety system or personal fall arrest system has been 
installed on the fixed ladder as required by final Sec.  1910.28(b)(9).
    Final paragraph (g)(1), similar to the proposed rule, requires that 
employers ensure cages and wells installed on fixed ladders are 
designed, constructed, and maintained to permit easy access to, and 
egress from the ladder that they enclose. The final rule divides the 
other proposed requirements into separate provisions, which makes the 
final rule easier to understand and follow.
    Consistent with the OSH Act (29 U.S.C. 655, 6(b)(5)), final 
paragraph (g)(1) replaces the specification requirements for cages and 
wells in existing Sec.  1910.27(d) with performance-based language that 
specifies the performance objective of the final rule (e.g., to permit 
easy access and egress). The existing rule, on the other hand, 
specifies that cages extend down the ladder to a point not less than 7 
feet nor more than 8 feet above the base of the ladder, and flare not 
less than 4 inches at the bottom. The existing rule also requires that 
the cages extend a minimum of 42 inches above the top of the landing a 
fixed ladder is served by. OSHA believes that the final rule's 
performance-based approach also provides flexibility to employers. OSHA 
includes Figure D-15 in the final rule, which provides an example of 
acceptable cage construction and dimensions.
    Final paragraph (g)(1) adds language specifying that employers 
ensure cages and wells, in addition to being designed and constructed 
to provide easy access to and egress from the fixed ladder, are 
maintained in that condition. This language reinforces the general 
maintenance and safe access and egress requirements in final Sec.  
1910.22. OSHA did not receive any comments on the proposed rule and 
adopts the provision with the clarifications discussed above.
    Final paragraph (g)(2), like proposed paragraph (g)(1), requires 
that employers ensure cages and wells are continuous throughout the 
length of the fixed ladder, except for access, egress, and other 
transfer points. Requiring that cages and wells cover the entire length 
of the fixed ladder is necessary to ensure that cages and wells are 
effective in containing and directing workers to a lower landing.
    Final paragraph (g)(2) recasts into plain language two provisions 
in the existing general industry rule and is consistent with the 
construction ladder standards that address the length of cages on fixed 
ladders. Both the existing general industry and construction standards 
require that cages extend along the fixed ladder to a point that is not 
less than seven feet nor more than eight feet above the base of the 
ladder (see existing Sec.  1910.27(d)(1)(iv) and Sec.  
1926.1053(a)(20)(vii)). These standards also require that the tops of 
cages extend at least 42 inches above the top of the platform or the 
point of access at the top of the ladder (see existing Sec.  
1910.27(d)(1)(iii) and Sec.  1926.1053(a)(20)(viii)). A14.3-2008 
(Sections 6.1.2.4 and 6.1.2.5) also includes similar requirements. OSHA 
did not receive any comments on the proposed rule and adopts it with 
the revised performance-based language discussed above.
    Final paragraph (g)(3), similar to proposed paragraph (g)(1), 
requires that employers ensure cages and wells are designed, 
constructed, and maintained so they contain workers in the event of a 
fall and direct them to a lower landing. Like final paragraph (g)(1), 
and consistent with the OSH Act (29 U.S.C. 655, 6(b)(5)), final 
paragraph (g)(3) replaces detailed specification requirements in the 
existing rule in Sec.  1910.27(d) with performance-based language. OSHA 
believes the performance-based language gives employers greater 
flexibility in designing, constructing, and maintaining cages and wells 
than the existing standard. OSHA did not receive any comments on the 
proposed provisions and finalizes the provision as discussed above.
    Final paragraph (g)(4), like existing Sec.  1910.27(d)(2)(ii) and 
proposed paragraph (g)(2), requires that employers ensure landing 
platforms used with fixed ladders provide workers with a horizontal 
surface that is at least 24 inches by 30 inches. The final rule is 
consistent with ANSI A14.3-2002.
    OSHA notes that fixed ladder platforms, like other walking-working 
surfaces, also must comply with the load requirements in final Sec.  
1910.22(b). That is, fixed ladder platforms must be capable of 
supporting the maximum intended load that employers will impose on 
them. OSHA did not receive any comments on the proposed requirement and 
adopts it as discussed.
Paragraph (h)--Outdoor Advertising
    Final paragraph (h) establishes temporary criteria and practice 
requirements for employers engaged in outdoor advertising (billboard) 
operations (hereafter referred to as ``outdoor advertising operations'' 
and ``outdoor advertising employers''). As final Sec.  1910.28(b)(9) 
and (10) specify, and the note to this paragraph reinforces through its 
reference to Sec.  1910.28, outdoor advertising employers may allow 
their workers \71\ to climb fixed ladders without fall protection until 
November 19, 2018, which is two years after publication of the final 
rule. After that date, outdoor advertising employers must provide fall 
protection in accordance with final Sec.  1910.28(b)(9), Fixed ladders, 
and the requirements in this paragraph no longer apply.
---------------------------------------------------------------------------

    \71\ The proposed rule in Sec.  1910.21(b) referred to these 
workers as ``qualified climbers,'' which the proposal defined as 
workers engaged in outdoor advertising operations who, by virtue of 
their physical capabilities, training, work experience, and job 
assignment, the employer authorizes to climb fixed ladders without 
using fall protection. Since the final rule phases out the use of 
qualified climbers in two years, on November 19, 2018, OSHA does not 
use the term in this final rule.
---------------------------------------------------------------------------

    The effect of final Sec.  1910.28(b)(9) and (10) is to phase out 
the exception to the fall protection requirements that apply to 
climbing fixed ladders that OSHA provided in a variance granted in 1991 
to Gannett Outdoor (56 FR 8801 (3/1/1991)), and extended to all outdoor 
advertising operations in a 1993 OSHA directive (Fixed Ladders Used on 
Outdoor Advertising Structures/Billboards in the Outdoor Advertising 
Industry, STD 01-01-014 (1/26/1993)) (Ex. 51).
    Final paragraph (h) specifies the requirements that apply during 
the phase out period. OSHA drew the requirements in proposed and final 
paragraph (h) from the 1993 outdoor advertising directive. OSHA 
stresses that during the phase out period, outdoor advertising 
employers must: (1) Ensure workers climbing fixed ladders wear a body 
harness equipped with an 18-inch rest lanyard (final Sec.  
1910.28(b)(10)(ii)(B)); and (2) ensure workers are protected by a fall

[[Page 82633]]

protection system once they reach the work position (final Sec.  
1910.28(b)(10)(ii)(D)).
    Final paragraph (h)(1), like the proposed rule, requires that 
outdoor advertising employers ensure that each worker who climbs fixed 
ladders without fall protection is physically capable to perform those 
duties that employers may assign. To ensure that workers are physically 
capable, final paragraph (h)(1) requires that employers either observe 
workers performing actual climbing activities, or ensure workers 
undergo a physical examination.
    Final paragraph (h)(1) clarifies the proposed rule by making 
explicit that the determination of a worker's physical capability, 
whether demonstrated by actual observation of climbing or by physical 
examination, must include whether workers are physically capable of 
climbing fixed ladders without fall protection as a regular part of 
their job duties. OSHA believes the key aspect of physical capability 
is the ability to climb without using fall protection. Such climbing 
requires particular strength, agility, and vigilance to prevent 
falling. Although most employers ensure workers are physically capable 
to do the job, OSHA believes that the additional language clarifies 
that the physical examination also must consider whether the worker has 
the physical ability to climb fixed ladders without fall protection. 
OSHA added the phrase ``including climbing fixed ladders without using 
fall protection'' to the final provision to clarify that one of the 
duties that workers in the outdoor advertising industry may be assigned 
is climbing fixed ladders that are not equipped with a ladder safety 
system or personal fall arrest system. Only after demonstrating the 
necessary ability and skill in climbing may employers allow workers to 
climb without using fall protection (see discussion in final Sec.  
1910.28(b)(10)).
    OSHA received one comment on the proposed provision. Ellis said 
OSHA should eliminate the outdoor advertising exception ``unless 
medical qualification is added;'' however, he did not provide any 
explanation to support the recommendation (Ex. 155). If Ellis is 
recommending that physical examinations include a ``medical 
qualification'' component, OSHA believes that the vast majority of all 
standard physical examinations include medical tests. In addition, OSHA 
believes that appropriate physical examinations to determine physical 
ability to climb fixed ladders without fall protection include medical 
tests such as blood pressure, electrocardiogram, blood, pulmonary, 
vision, balance, reflex, and other similar medical examinations. As 
such, OSHA does not believe it is necessary to specify required medical 
tests in the final rule.
    Ellis appears to be recommending that employers must ensure workers 
have both a physical examination and perform actual climbing activities 
to demonstrate they are physically capable of climbing fixed ladders 
without fall protection. OSHA believes the current requirement does not 
need to be changed because the Agency is phasing out climbing fixed 
ladders without fall protection. OSHA notes, however, that outdoor 
advertising employers are free to provide their workers with both a 
physical examination and have them perform actual climbing activities 
to demonstrate physical capability.
    Final paragraphs (h)(2) and (3) are companion requirements that 
specify what training employers must provide (final paragraph (h)(2)) 
and how they must provide it (final paragraph (h)(3)) to ensure workers 
have the necessary skills to climb fixed ladders without fall 
protection. OSHA notes that the training outdoor advertising employers 
must provide in final paragraphs (h)(2) and (3) is in addition to the 
training they must provide under final Sec.  1910.30.
    Final paragraph (h)(2), similar to the proposed rule, requires that 
outdoor advertising employers ensure their workers who climb fixed 
ladders without fall protection (1) successfully complete a training or 
apprenticeship program that includes hands-on training for the safe 
climbing of ladders, (including fixed ladders without fall protection 
and portable ladders); and (2) receive retraining as necessary to 
ensure they maintain necessary skills.
    Successful completion of a training or apprenticeship program means 
workers are proficient in all aspects of the job, including climbing 
without fall protection. For example, workers who successfully finish 
their training or apprenticeship program will know at least (1) how to 
safely transition from fixed ladders to work platforms and portable 
ladders; (2) the correct angle for safely climbing portable ladders; 
(3) how to properly attach to ladder safety systems and personal fall 
arrest systems at certain ladder heights and when transitioning to work 
platforms; and (4) the impacts of various environmental conditions on 
safely climbing fixed ladders without fall protection and what action 
to take. These training tasks address particularly dangerous climbing 
conditions, and OSHA believes completion of training or an 
apprenticeship program is only successful if workers are proficient in 
these types of tasks. If an employer observes, or has reason to 
believe, that workers are no longer proficient in climbing fixed 
ladders without fall protection, final paragraph (h)(2) requires that 
they provide retraining to restore the worker's proficiency.
    OSHA notes that final paragraph (h)(2), like the proposal includes 
language specifying that employee training on safe climbing must 
include ``hands-on'' training. OSHA believes that workers must have 
opportunities to train on ladders and with the equipment they will use 
to perform their work (e.g., rest lanyards) in order to become 
proficient in climbing fixed ladders without fall protection. OSHA did 
not receive any comments on proposed paragraph (h)(2) and adopts it 
with only minor editorial change.
    Final paragraph (h)(3), like the proposed rule, requires that 
outdoor advertising employers ensure workers possess the skill to climb 
ladders safely as demonstrated through:
     Formal classroom training or on-the-job training; and
     Performance observations.
    To develop the necessary skills and proficiency to climb fixed 
ladders without fall protection, OSHA believes that worker training 
must consist of two components: Formal classroom training or on-the-job 
training on safe climbing of ladders, and worker demonstration of 
proficiency of ladder climbing skills. Employers must ensure workers 
receive formal classroom or on-the-job training, and then are 
personally observed demonstrating their skills and proficiency before 
considering a training or apprenticeship program to be ``successfully 
completed.'' OSHA stresses that workers must successfully complete the 
training and demonstration of climbing skills and proficiency before 
employers may allow or assign workers to climb ladders unsupervised as 
part of their job. The same is true for on-the-job training, which is 
not ``learn as you work'' training. The purpose and structure of on-
the-job training must be to teach workers and help them develop, 
through observation and practice, the necessary skills and proficiency 
to climb fixed ladders without fall protection before assigning them to 
perform regular climbing jobs unsupervised. OSHA did not receive any 
comments on the proposed provision and adopts it as discussed above.
    Final paragraph (h)(4), like the proposed rule, requires that 
employers permit workers to climb fixed ladders

[[Page 82634]]

without fall protection only if such climbing is part of their routine 
work activities. As OSHA explained in the preamble to the proposed 
rule, it is essential that workers regularly perform climbing tasks so 
they retain knowledge of proper climbing practices and maintain 
climbing proficiency, including physical capabilities (75 FR 28898).
    Ellis recommended eliminating ``qualified climbers'' unless OSHA 
requires that employers supervise all climbing on fixed ladders (Ex. 
155). OSHA does not believe Ellis' recommendation is needed. The final 
rule requires that outdoor advertising workers who climb fixed ladders 
without fall protection receive extensive training before employers 
assign them to perform regular climbing activities. That training 
includes classroom or hands-on training plus observation of worker 
climbing proficiency. In addition, employers must train those workers 
in fall and equipment hazards, and provide retraining as necessary (see 
final Sec.  1910.30). OSHA believes the training requirements in the 
final rule are adequate to ensure that outdoor advertising workers have 
the skills necessary to climb fixed ladders unsupervised without fall 
protection during the phase-out period. Therefore, OSHA did not adopt 
the commenter's recommendation.
Paragraph (i)--Ladder Safety Systems
    Final paragraph (i) establishes criteria and practice requirements 
for ladder safety systems permanently attached to fixed ladders or 
immediately adjacent to such ladders. A ladder safety system is a 
system designed to eliminate or reduce the possibility of falling from 
a ladder (see definition of ``ladder safety system'' in final Sec.  
1910.21(b)). According to this definition, it usually consists of the 
following:
     A carrier, also called ``a lifeline,'' which is a rigid or 
flexible track attached to or adjacent to the fixed ladder;
     A safety sleeve, which is moving component that travels on 
the carrier;
     A lanyard;
     Connectors; and
     A body harness.
    Although the existing rule (Sec.  1910.21(e)(13)) defines ``ladder 
safety devices,'' which serve the same purpose as ladder safety 
systems, the existing rule does not specify criteria or practice 
requirements for those devices. As a result, OSHA drew many of the 
proposed ladder safety system criteria and practice requirements from 
the construction ladder standard (Sec.  1926.1053(a)(22) and (23)).\72\ 
OSHA also drew ladder safety system criteria and practice from A14.3-
2008.
---------------------------------------------------------------------------

    \72\ The construction standard allows the use of body harnesses 
or body belts with ladder safety systems.
---------------------------------------------------------------------------

    Final paragraph (i)(1) requires that employers must ensure each 
ladder safety system allows workers to climb up and down the fixed 
ladder with both hands free for climbing. The final rule also specifies 
that the design of the ladder safety system must be such that it does 
not require that workers continuously hold, push, or pull any part of 
the system while they are climbing. Final paragraph (i)(1) is 
consistent with the construction ladder standard in Sec.  
1926.1053(a)(22)(ii) and A14.3 (Section 7.3.1).
    In commenting on the proposed rule, NGS pointed out:

    Some forms of ladder safety systems (i.e. rope grabs) may 
require the employee to periodically hold up a lever to adjust the 
position of the grab on the rope. This is not continual and the 
employee can make this adjustment while in a stationary position on 
the ladder. Once the grab is re-positioned, the employee can climb 
before stopping and re-adjusting the grab (Ex. 180).

    The purpose of the proposed provision was to ensure that the ladder 
safety system allows workers to use both hands while they are in the 
process of climbing up and down the fixed ladder; it does not prohibit 
them from using their hands to position or adjust components of the 
ladder safety system, such as rope grabs, while stopping and standing 
in place at certain points along the ladder. OSHA believes the ladder 
safety system lanyard will protect workers from falling to a lower 
level in these situations; however, their hands must be free when they 
resume climbing. The final rule clarifies the provision by adding the 
term ``continuously'' in place of ``continually.'' OSHA believes this 
change reinforces clearly that workers need to hold onto the ladder 
with both hands while climbing, but they may perform tasks when they 
stop climbing.
    Final paragraph (i)(2), like the proposed rule, requires that 
employers ensure the connection between the carrier or lifeline and the 
point of attachment to the body harness or belt does not exceed 9 
inches in length. The purpose of this provision is to limit the length 
of any fall and resulting arrest forces. The final rule ensures that no 
fall exceeds 18 inches, which will limit the arresting forces. The 
final rule is almost identical to the construction ladder standard in 
Sec.  1926.1053(a)(22)(iv). The A14.3-2008 standard (Section 7.3.3) 
also limits the lanyard length to 9 inches.
    Ellis commented that OSHA should prohibit the use of body belts 
with ladder safety systems, and pointed out that the A14.3-2008 
standard specifies harnesses instead of body belts as part of a ladder 
safety system (Ex. 155). He added that ``[a]ll manufacturers have 
changed at this stage to harness[es] for this climbing device'' (Ex. 
155). OSHA agrees that most employers provide body harnesses for use 
with ladder safety systems because harnesses distribute arresting 
forces across a broader portion of the body, which makes them safer 
than body belts. However, since the final rule limits the lanyard 
length to 9 inches, the maximum free fall will be 18 inches. OSHA 
believes a maximum free fall of 18 inches will not put an excessive 
arresting force on workers even if they are using body belts instead of 
harnesses. As such, like the construction ladder standard, OSHA does 
not believe it is necessary to prohibit the use of body belts with 
ladder safety systems.
    Final paragraph (i)(3), like the proposed rule, requires employers 
to ensure that mountings for rigid carriers are attached at each end of 
the carrier, with intermediate mountings spaced, as necessary, along 
the entire length of the carrier so the system has the strength to stop 
worker falls. The requirements in the final rule are consistent with 
the construction ladder standard (Sec.  1926.1053(a)(23)(i)). The 
A14.3-2008 standard (Section 7.3.4) also requires that rigid carriers 
on ladder safety systems have mountings at the end of each carrier and 
intermediate mountings along the carrier. However, that standard 
establishes specification requirements for intermediate mountings 
instead of the performance-based language in the final rule. A14.3-2008 
requires intermediate mountings spaced along the carrier in accordance 
with manufacturer's recommendations, and installed within one foot 
below each splice on the carrier, with at least one mounting every 25 
feet.
    The purpose of final paragraph (i)(3) is to ensure the ladder 
safety system carrier remains in place and supports the worker, if a 
fall occurs, by attaching the carrier (or lifeline) firmly to the fixed 
ladder throughout the length of the ladder. To ensure that the carrier 
has the strength necessary to hold a falling worker, the final rule 
requires that employers install an adequate number of mountings spaced 
``as necessary'' along the entire carrier length. OSHA believes that 
manufacturer's instructions likely identify the number

[[Page 82635]]

and spacing of intermediate mountings they believe are necessary to 
firmly secure the carrier. However, some carriers may need additional 
mountings to ensure they are able to support the arresting forces of a 
falling worker. For example, as the standard indicates, if a carrier 
consists of several sections, employers may need to use additional 
intermediate mountings. Therefore, the final rule requires that 
employers put intermediate mountings at those places along the carrier 
(e.g., by any splice on the carrier) where they are necessary to ensure 
the carrier has the strength to stop workers from falling to a lower 
level. OSHA believes requiring that employers install and space the 
mountings ``as necessary'' will ensure that employers inspect and 
evaluate where intermediate mountings are needed when they install 
ladder safety systems. OSHA did not receive any comments on the 
proposed provision and adopts it as explained above.
    Final paragraph (i)(4), similar to the proposed rule, requires that 
employers ensure flexible carriers have mountings attached at each end 
of the carrier. The final rule also requires the installation of cable 
guides for flexible carriers at least 25 feet apart, but not more than 
40 feet apart, along the entire length of the carrier. The final rule 
is consistent with both the construction ladder standard (Sec.  
1926.1053(a)(23)(ii)) and A14.3-2008 (Section 7.3.5). The purpose of 
the requirement is to ensure the system has the strength necessary to 
stop worker falls and, as the construction ladder standard indicates, 
to prevent wind damage to the ladder safety system and its components. 
OSHA did not receive any comments on the proposed provision and 
finalizes it with the clarifications discussed above.
    Final paragraph (i)(5), like the proposed rule, reinforces final 
paragraphs (i)(3) and (i)(4) by requiring employers to ensure that the 
design and installation of mountings and cable guides do not reduce the 
design strength of the ladder. The final rule is consistent with both 
the construction ladder standard in Sec.  1926.1053(a)(23)(iii) and 
A14.3-2008 (Section 7.1.4). OSHA did not receive any comments on the 
proposed provision and adopts it with a minor change for clarity.
    Final paragraph (i)(6), like the proposed rule, requires that 
employers ensure ladder safety systems and their support systems are 
capable of withstanding, without failure, a drop test consisting of an 
18-inch drop of a 500-pound weight. This drop test, therefore, must 
arrest and suspend the 500-pound weight without damage to or failure of 
the ladder safety system and its support system and without the test 
weight hitting a lower level (such as the ground). The final rule is 
consistent with both the construction ladder standard in Sec.  
1926.1053(a)(22)(i) and A14.3-2008 (Section 7.1.3).
    Ellis recommended that the final rule include a test to determine 
whether horizontal thrust will cause the ladder safety system to fail 
(Ex. 155). He also recommended that the final rule incorporate the 
program of eight tests Great Britain's Health and Safety Executive 
established. OSHA notes the A14.3 Committee did not adopt those tests, 
and footnote 7 in the A14.3-2008 standard states there is no scientific 
determination currently available (in 2008) on this issue to support 
any action. Ellis did not provide any evidence to support adopting his 
recommendation.
    Ameren recommended that OSHA only require that employers comply 
with the ladder safety systems criteria and practice requirements when 
they install new or replacement fixed ladders and ladder safety 
systems, stating, ``It could very easily be financially burdensome for 
an employer to replace safe, operating systems to meet proposed 
requirements'' (Ex. 189). The final rule basically follows the approach 
Ameren recommends. The final rule (final Sec.  1910.28(b)(9)) does not 
require that employers immediately install ladder safety systems (or 
personal fall arrest systems) on existing fixed ladders (i.e., ladders 
installed before November 19, 2018) that have a cage or well. The final 
rule requires those employers to install a ladder safety system or 
personal fall arrest system: (1) When the employer replaces the fixed 
ladder or a section of it; or (2) by November 18, 2036, which is the 
final deadline for installing ladder safety systems (or personal fall 
arrest systems) on all fixed ladders.
Paragraph (j)--Personal Fall Protection Systems
    Final paragraph (j), like the proposed rule, requires that body 
belts, body harnesses, and other components used in personal fall 
arrest systems, work positioning systems, and travel restraint systems, 
meet the applicable requirements in final Sec.  1910.140. The final 
Sec.  1910.140 preamble discusses the criteria and practice 
requirements for those personal fall protection systems, and addresses 
stakeholder comments.
Paragraph (k)--Protection From Falling Objects
    As discussed earlier in this preamble, the final rule in Sec.  
1910.28(c) requires that employers protect workers from being hit by 
falling objects by keeping objects, including tools, materials, and 
equipment, far enough away from the exposed edge to prevent them from 
falling to a lower level, and by using one or more of the following 
falling object protection measures: (1) Toeboards, screens, or 
guardrail systems; (2) canopy structures; or (3) barricading the area 
and prohibiting workers from entering the barricaded area.
    Final paragraph (k) establishes criteria and practice requirements 
for the measures that final Sec.  1910.28(c) requires. The existing 
rule in Sec.  1910.23(e)(4) contains limited requirements for toeboards 
and guardrails, and OSHA drew criteria and practice requirements for 
these measures from the construction fall protection standard in Sec.  
1926.502(j), A10.18-2012 (Section 4.1.5), and A1264.1-2007 (Section 
5.7).
    Final paragraph (k)(1) establishes criteria and practice 
requirements for toeboards, which the final rule in Sec.  1910.21(b) 
defines as a low protective barrier that is designed to prevent 
materials, tools, and equipment from falling to a lower level. The 
final definition also specifies that toeboards protect workers from 
falling to a lower level.
    Final paragraph (k)(1)(i), similar to proposed paragraph (k)(1), 
requires that employers ensure toeboards, when used for falling object 
protection, are erected along the exposed edge of the overhead walking-
working surface for a length that is sufficient to protect workers 
below. In determining how much of the walking-working surface must have 
toeboards, employers not only must provide toeboards where objects are 
placed or piled, but also take into account that objects may move or 
roll on a walking-working surface before going over an exposed edge. In 
addition, employers must consider where employees may be working on a 
lower level. The final rule is consistent with the construction fall 
protection standard in Sec.  1926.502(j)(1). OSHA did not receive any 
comments on the proposed provision and adopts it as proposed, with 
minor editorial revisions.
    Final paragraph (k)(1)(ii), like proposed paragraph (k)(2)(i), 
requires that employers ensure the minimum vertical height of toeboards 
is 3.5 inches, as measured from the top edge of the toeboard to the 
level of the walking-working surface. The existing rule in Sec.  
1910.23(e)(4) requires a four-inch nominal vertical toeboard height, 
but does not indicate the permissible deviation from that height. 
However, to make the provision consistent with the construction fall 
protection standard,

[[Page 82636]]

OSHA proposed and adopts a 3.5-inch minimum vertical toeboard height. 
The final rule also is consistent with A1264.1-2007 (Section 5.7) and 
A10.18-2012 (Section 4.1.5).
    OSHA stresses that, like the construction fall protection standard 
in Sec.  1926.502(j)(3), the required 3.5-inch toeboard height is the 
minimum height. If employers have objects or materials near the 
toeboard that are higher than the toeboard, they must ensure the 
toeboard height is sufficient to prevent the objects from falling over 
the edge to a lower level, as specified in final paragraph (k)(2). OSHA 
notes that when objects are piled higher than the toeboard, final 
paragraph (k)(2) requires employers to erect guardrail systems that 
have paneling or screening installed from the top edge of the toeboard 
to the top rail or midrail of the guardrail system. (See further 
discussion of final paragraph (k)(2) below.) OSHA did not receive any 
comments on the proposed requirement and finalizes it as discussed 
above.
    Final paragraph (k)(1)(iii), similar to existing Sec.  
1910.23(e)(4) and proposed paragraph (k)(2)(i), requires that employers 
ensure toeboards do not have an opening or clearance of more than 0.25 
inches above the walking-working surface. This is measured from the 
walking-working surface to the bottom of the toeboard. The purpose of 
this requirement is to ensure that objects cannot fall off the walking-
working surface through any drainage openings in the toeboard. The 
final rule is consistent with the construction fall protection standard 
(Sec.  1926.502(j)(3)), A10.18-2012 (Section 5.7), and A1264.1-2007 
(Section 4.1.5).
    Final paragraph (k)(1)(iv) is a companion provision to final 
paragraph (k)(1)(iii). Like proposed (k)(2)(i), it requires that 
employers ensure toeboards are solid or, if they have openings, the 
openings do not exceed 1 inch at their greatest dimension. OSHA 
acknowledges that the toeboards employers use in outdoor work areas may 
need drainage openings to prevent water from collecting on the walking-
working surface, resulting in slips and falls. Therefore, this 
provision, along with final paragraph (k)(1)(iii), requires employers 
to ensure that such drainage openings do not exceed a height of \1/4\ 
inch or a length of 1 inch. These provisions are substantively the same 
as the proposed language. However, the final rule (paragraphs 
(k)(1)(iii) and (iv)) simplifies and clarifies the proposed provision. 
The final rule separates the requirements into two provisions, which 
makes them easier to understand, and removes unnecessary language 
(e.g., ``vertical''). The final rule also clarifies the requirements by 
specifying more clearly than the proposal that no opening in the 
toeboard shall exceed 1 inch in length (final paragraph (k)(1)(iv)) and 
0.25 inches in height (final paragraph (k)(1)(iii)). These maximum 
dimensions will ensure that objects cannot fall through any opening in 
a toeboard.
    OSHA did not receive any comments on the requirements in proposed 
paragraph (k)(2)(i) and adopts final paragraphs (k)(1)(iii) and (iv) as 
discussed above.
    Final paragraph (k)(1)(v), like proposed paragraph (k)(2)(ii), 
requires that employers ensure toeboards used around vehicle repair, 
service, and assembly pits (pits) have a minimum height of 2.5 inches. 
The height is measured from the walking-working surface to the top edge 
of the toeboard. The final rule also includes an exception, which 
specifies that employers do not have to erect toeboards along the 
exposed edges of a pit if they can demonstrate the toeboard would 
prevent access to a vehicle that is over the pit.
    The final rule recognizes that shorter toeboards are adequate to 
protect workers from being hit by falling objects when vehicles are 
over the pit because the space between the toeboard and the vehicles is 
small enough to prevent most objects from falling into the pit. When 
vehicles are not over the pit, toeboards are not necessary because 
employees are not working in the pit and, thus, not exposed to a 
falling object hazard. Therefore, the exception is necessary because 
toeboards, even short ones, would prevent workers from accessing the 
vehicle to perform repair, service, or assembly work.
    The final rule clarifies the proposed toeboard exception in two 
respects. First, the final rule states more clearly than the proposal 
that the toeboard exception applies only when ``employers can 
demonstrate'' that erecting toeboards would prevent access to a 
vehicle. In the preamble to the proposal, OSHA explained that employers 
have the duty to show that toeboards would prevent vehicle access (75 
FR 28899). The final rule adds that language to the regulatory text to 
clarify this requirement.
    Second, the final rule clarifies that the exception is limited. It 
only applies to those parts and sections of exposed edges where 
erecting toeboards would prevent access to a vehicle that is over a 
pit. The final rule still requires that employers erect toeboards at 
other exposed edges. OSHA did not receive any comments on the proposed 
provision and exception, and finalizes them with the clarifications 
explained above.
    Final paragraph (k)(1)(vi), like proposed paragraph (k)(4), 
requires that employers ensure toeboards are capable of withstanding, 
without failure, a force of at least 50 pounds, applied in any downward 
or outward direction at any point along the toeboard. OSHA drew the 
requirement from the construction fall protection standard in Sec.  
1926.502(j)(2). The existing rule in Sec.  1910.23(e)(4) does not 
include this requirement; rather, the existing provision specifies that 
employers securely fasten toeboards and they be made of ``any 
substantial material.''
    As defined in final Sec.  1910.21(b), ``failure'' 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 
component parts. Therefore, ``without failure'' means a toeboard must 
have adequate strength to remain in place and intact after applying 50 
pounds in a downward or outward direction at any point along the 
toeboard. OSHA believes that the language in final rule and the 
construction fall protection standard is clearer, and provides 
employers with better guidance on compliance, than the existing rule. 
OSHA did not receive any comments on the proposed requirement and 
finalizes it as discussed above.
    Final paragraph (k)(2)(i), like proposed (k)(3), establishes 
criteria and practice requirements where tools, equipment, or materials 
are piled higher than the toeboard. Where such items are piled higher 
than the toeboard, the employer must install paneling or screening from 
the toeboard to the midrail of the guardrail system and for a length 
that is sufficient to protect employees below. If the items are piled 
higher than the midrail, the employer must install paneling or 
screening to the top rail of the guardrail and for a length that is 
sufficient to protect employees below.
    The final provision uses the same approach as the construction fall 
protection standard in Sec.  1926.502(j)(4) when objects are piled 
higher than the toeboard. The construction standard requires that 
employers install paneling or screening from the walking-working 
surface or toeboard to the top of the guardrail or midrail. In addition 
to requiring that employers use guardrail systems in such cases, final 
Sec.  1910.28(c)(2) requires that employers must protect workers from 
falling objects by keeping objects far enough from the exposed edges to 
prevent them from falling to a lower level. OSHA

[[Page 82637]]

believes that this two-pronged approach provides effective redundancy 
that will prevent falling objects from injuring or killing workers on 
lower levels. In addition, OSHA believes that following a similar 
approach to that in the construction standard will make compliance 
easier for employers who perform both general industry and construction 
activities.
    OSHA notes final paragraph (k)(2)(i) requires that employers use 
guardrail systems equipped with ``paneling or screening'' rather than 
vertical members specified in final Sec.  1910.29(b). Even though the 
final rule requires that the distance between vertical members must not 
exceed 19 inches, OSHA believes that some items, such as heavy tools, 
can fall through those openings. Paneling, such as solid paneling, or 
screening will prevent piled objects from falling through the guardrail 
system to a lower level.
    Final paragraph (k)(2)(i), like proposed paragraph (k)(5), also 
requires that employers ensure the paneling or screening they install 
extends for a distance along the guardrail system that is sufficient to 
protect workers below from falling objects. The final rule is 
consistent with the guardrail requirement in final paragraph (b)(2) of 
this section, and the construction fall protection standard in Sec.  
1926.502(j)(4). Final paragraph (k)(2)(i) also is consistent with 
existing Sec.  1910.23(e)(4). The A1264.1-2007 standard (Section 5.7) 
allows employers to use guardrail systems equipped with screening or 
additional toeboards, to protect workers from falling objects.
    Final paragraph (k)(2) consolidates into one provision the proposed 
criteria and practice requirements for guardrail systems used as 
falling object protection (see proposed paragraphs (k)(3) and (5)). 
OSHA believes this consolidation makes the final rule easier to 
understand and follow than the proposal.
    OSHA notes that, except when specified elsewhere, guardrail systems 
used for falling object protection also must meet the guardrail 
requirements in final paragraph (b) of this section, such as the 
strength requirements for paneling and screening (see final paragraph 
(b)(5)).
    OSHA received one comment on the proposed rule. Ellis supported the 
proposed requirement to install barriers to prevent objects from 
falling through openings (Ex. 155). He also recommended that materials 
used for paneling or screening include sheet metal, gratings, and 
netting (Ex. 155). OSHA notes that A1264.1-2007 (Section 5.7) requires 
that paneling or screening used for falling object protection have at 
least 18-gauge thickness. Although the final rule uses performance-
based language, OSHA notes that paneling or screening that meets the 
ANSI/ASSE standard would comply with final paragraph (k)(2).
    Final paragraph (k)(2)(ii), like proposed paragraph (k)(5), 
requires that employers ensure openings in guardrail systems are small 
enough to prevent objects from falling through the openings. The final 
rule is consistent with the construction fall protection standard in 
Sec.  1926.502(j)(5). OSHA is adopting the proposed rule with only 
minor editorial change.
    Final paragraph (k)(3) establishes requirements for using canopies 
as falling object protection. Like proposed paragraph (k)(6), the final 
rule establishes a performance-based provision requiring that employers 
ensure canopies are strong enough to prevent collapse and penetration 
when struck by any falling object. The final rule adds language 
clarifying that the strength requirements in final paragraph (k)(3) 
only apply to canopies that employers use to protect workers from 
falling objects, not to all canopies. OSHA did not receive any comments 
on the proposed measure and finalizes the provision with the editorial 
change discussed above.
Paragraph (l)--Grab Handles
    Final paragraph (l) specifies criteria and practice requirements 
for grab handles that employers provide, such as at a hoist area. 
Workers often use grab handles when they lean through or over the edge 
of the access opening to facilitate hoisting operations. The final rule 
in Sec.  1910.21(b) defines a ``hoist area'' as any elevated access 
opening to a walking-working surface through which equipment or 
materials are loaded or received.
    The final rule does not retain a portion of proposed Sec.  
1910.28(b)(2)(ii), which required that employers provide a grab handle 
on each side of the access opening at hoist areas whenever guardrail 
systems, gates, or chains are removed to facilitate a hoisting 
operation and a worker must lean through the opening or over the edge 
of the access opening. However, if employers do provide grab handles, 
final paragraph (l) requires that they must ensure the grab handles 
meet the criteria and practice requirements in final paragraph (l). The 
existing rule requires that employers provide grab handles on each side 
of wall openings and holes, and on ``extension platforms onto which 
materials can be hoisted for handling'' (see existing Sec.  
1910.23(b)(1)(i) and (ii)), and also establishes criteria that wall 
opening grab handles must meet (see existing Sec.  1910.23(e)(10)). 
Neither the construction fall protection standard in Sec.  1926.501 nor 
any national consensus standard requires the use of grab handles at 
hoist areas.
    OSHA decided to retain the criteria and practice requirements in 
final paragraph (l) to clarify that employers who provide grab handles 
must ensure those handles are safe and effective. Moreover, retaining 
the criteria and practice requirements addresses Ameren's 
recommendation that OSHA explain what qualifies as a grab handle in the 
final rule, requesting that OSHA ``be specific as to not cause 
confusion or misinterpretation'' (Ex. 189).
    Final paragraph (l)(1), like the proposed rule, requires that grab 
handles employers provide must be at least 12 inches in length. This 
final provision is consistent with the existing rule in Sec.  
1910.23(e)(10). OSHA believes that 12-inch handles will provide workers 
with an adequate grip space.
    Final paragraph (l)(2), similar to existing Sec.  1910.23(e)(10) 
and the proposed rule, specifies that grab handles employers install at 
hoist access openings must provide at least three inches of clearance 
from the framing or opening. OSHA believes a three-inch clearance is 
essential to ensure workers have adequate space to wrap their hands 
around the handle and grip it firmly, if they lean out of the opening 
during hoisting operations, thereby preventing falls.
    Final paragraph (l)(3), like the proposed rule, specifies that grab 
handles employers provide must be capable of withstanding a maximum 
horizontal pull-out force equal to two times the maximum intended load 
or 200 pounds, whichever is greater. The existing rule in Sec.  
1910.23(e)(10) has similar language requiring that grab handles be 
capable of withstanding 200 pounds applied horizontally at any point 
along the handle. OSHA believes the required strength criteria will 
ensure that grab handles remain in place when workers hold onto them 
and lean their bodies out of an access opening. OSHA is adopting final 
paragraph (l) with the clarifications discussed.
Section 1910.30 Training Requirements
    Final Sec.  1910.30, like the proposed rule, adds training 
requirements to 29 CFR part 1910, subpart D (subpart D). OSHA drew most 
of the new training requirements from the construction fall protection 
standard (29 CFR 1926.503). Final Sec.  1910.30 requires training on 
fall and equipment hazards and, in certain situations, retraining. The 
final training

[[Page 82638]]

requirements are performance based, and give employers flexibility to 
tailor the requirements and training methods to their workforce and 
workplace.
    Some commenters said that employers are not providing fall 
protection training, which puts employees at significant risk of injury 
(Exs. 329 (1/19/2011, p. 86); 329 (1/20/2011, p. 99)). One worker 
testified that he received no training at any company where he worked, 
saying, ``It was learn as you go'' (Ex. 329 (1/19/2011, p. 86)).
    OSHA believes that the new training requirements are necessary, and 
effective worker training is one of the most critical steps employers 
can take to prevent employee injuries and fatalities. Generally, 
commenters supported adding training requirements to subpart D (Exs. 
53; 73; 96; 127; 172; 189; 205; 216; 222; 226; 329 (1/19/2011, pgs. 22, 
24); 364). For example, the AFL-CIO said, ``[T]raining requirements are 
necessary to ensure that workers can identify the fall hazards they 
face in their workplaces and understand how they can be protected'' 
(Ex. 172). The American Society of Safety Engineers (ASSE) agreed, 
saying, ``[A]ppropriate training is a key element of managing every 
kind of workplace safety risks'' (Ex. 127).
    The National Grain and Feed Association (NGFA) stated, training 
``programs are vital, first and foremost, to safeguard lives and 
prevent injuries'' (Ex. 329 (1/20/2011, p. 248)). Sam Terry, president 
of Sparkling Clean Window Company, and Dana Taylor, executive vice 
president of Martin's Window Cleaning, also stressed that proper 
training is critical to reduce workplace injuries and illnesses (Exs. 
222; 362). Mr. Terry said, ``The lack of proper training is probably 
the most significant contributor to accidents and incidents when 
suspended work is performed'' (Ex. 362). He added that most, if not 
all, of the accidents involving rope descent systems and suspended 
scaffolding since 1977 that he reviewed ``could have been prevented if 
the employees had received proper training'' (Ex. 163). Similarly, Mr. 
Russell Kendzior, president of the National Floor Safety Institute 
(NFSI), stated, ``Approximately 8 percent of all slips, trips and falls 
are directly caused by improper or lack of employee training'' (Ex. 329 
(1/21/2011, p. 204)). The International Window Cleaning Association 
(IWCA), which has spent years researching and analyzing accident data 
and industry practices, told OSHA that ``inadequate training'' was one 
of the leading causes of accidents among window cleaners (Ex. 364).
    Some commenters, however, opposed the proposed training 
requirements. Mr. Charles Lankford, of Rios & Lankford International 
Consulting, opposed the application of some training requirements 
because they do not exempt employers who rely exclusively on guardrails 
or safety net systems. He said, ``[Those] systems . . . are completely 
passive in their protective characteristics and do not require any 
special knowledge on the part of the protected employees'' (Ex. 368). 
OSHA does not agree with the commenter. Regardless of whether a fall 
protection system is passive, it will be effective only if it is 
installed, inspected, used, maintained, and stored properly and safely. 
OSHA believes that workers need special and specific knowledge to 
perform these tasks correctly. For example, to ensure that safety net 
systems protect employees in the event of a fall, employees must know, 
or be able to calculate, how much weight the net will hold in the 
particular situation. Therefore, OSHA believes that workers who use any 
type of fall protection system must receive proper training. (See 
discussion of final paragraph (b)(1) for additional explanation.)
    The National Chimney Sweep Guild (NCSG) opposed the proposed 
training requirements for workers who use personal fall protection 
systems, saying that they duplicated and overlapped the personal 
protective equipment (PPE) training that Sec.  1910.132(f) requires:

    This would place an inappropriate and unnecessary burden on 
employers, employees and compliance personnel in sorting out the 
confusion presented by the redundant, overlapping and varying 
provisions addressing the same issues. Furthermore, unless the rule 
would allow sweeps to receive generic hazard training (rather than 
site-specific training), this requirement would be economically 
infeasible for sweeps (Ex. 150).

    As explained in the proposal, OSHA acknowledges that some of the 
training requirements in Sec.  1910.30 may overlap those in Sec.  
1910.132. To the extent that any provisions do overlap, OSHA does not 
believe that it burdens employers because training that complies with 
one standard satisfies the employer's obligation under the other 
standard. That said, OSHA believes that the training requirements in 
final Sec. Sec.  1910.30 and 1910.132(f) complement each other and, 
therefore, ensure that workers receive comprehensive training. For 
example, final Sec.  1910.30(a)(3)(i) requires that employers train 
workers how to recognize the need for PPE while Sec.  1910.132(f)(1)(i) 
requires that employers train employees to know what PPE is necessary 
and fits. Also, Sec.  1910.30(a)(iii) requires that employers train 
workers in the correct and safe use of personal fall protection 
systems, while Sec.  1910.132(f)(1)(iv) requires training on the 
limitations of those systems.
    The final rule does not require that training be site-specific; 
that is, provided the site where employees are performing the job. 
However, to be effective the training that employers provide needs to 
address the hazards which their employees may be exposed. OSHA believes 
that NCSG already may be providing this training. For example, NCSG 
said they provide shop classes at individual businesses as well as on-
the-job training. In addition NCSG said the chimney sweep training 
program lasts six to 12 months and during that training workers are 
``exposed to a lot of different situations'' (Ex. 329 (1/18/2011), p. 
274).
    Commenters also supported OSHA's performance-based approach to the 
training requirements. For example, the National Cotton Ginners' 
Association (NCGA) (Ex. 73) and the Texas Cotton Ginners' Association 
(TCGA) (Ex. 96) both said, ``We believe it is most beneficial to keep 
this section general so that each employer may review their own 
operation to determine which employees need to receive specific 
training.''
Paragraph (a)--Fall Hazards
    Final paragraph (a), like the proposed rule, contains training 
requirements related to fall hazards.\73\ Final paragraph (a)(1), like 
the proposal, requires that employers train each employee who uses a 
personal fall protection system. Final Sec.  1910.21(b) defines 
personal fall protection system as ``a system an employee uses to 
provide protection from falling or to safely arrest an employee's fall 
if one occurs.'' Personal fall protection systems include personal fall 
arrest, travel restraint, and positioning systems (Sec.  1910.21(b)).
---------------------------------------------------------------------------

    \73\ The final rule defines fall hazard as ``any condition on a 
walking-working surface that exposes an employee to a risk of harm 
from a fall on the same level or to a lower level'' (final Sec.  
1910.21(b)). However, for the purposes of final paragraph (a), 
``fall hazards'' refers to the risk of falling four (4) feet or more 
to a lower level, except for falling into or onto dangerous 
equipment; for this exception, there is no limit to the distance an 
employee may fall to a lower level.
---------------------------------------------------------------------------

    Final paragraph (a)(1) also requires that employers train each 
worker required to receive training under subpart D. Subpart D requires 
worker training in several situations, including:
     When employees use a rope descent system (RDS) (Sec.  
1910.27(b)(2)(iii));
     When employees work on an unguarded working side of a 
platform

[[Page 82639]]

used on slaughtering facilities, loading racks, loading docks, or 
teeming platforms (Sec.  1910.28(b)(1)(iii)(C) and (b)(14)(ii)(C)); and
     When employees operate motorized equipment on dockboards 
not equipped with fall protection (e.g., guardrails) (Sec.  
1910.28(b)(4)(ii)(C)).
    In the proposed rule, OSHA invited comment on whether the final 
rule should expand the scope of the fall hazard training in paragraph 
(a)(1) to cover all fall hazards over four feet (including ladders); 
training on the safe use of ladders; and training to avoid slips, 
trips, and falls on the same level of a walking-working surface (75 FR 
28900). Some commenters urged OSHA to expand the scope of the training 
requirements. For instance, Mr. Bill Kojola of the AFL-CIO said, ``It 
is our view that the training requirements in the final rule need to be 
expanded to include training for all workers exposed to fall hazards 
over 4 feet (including those using ladders), those using portable 
guardrails, and for all workers using portable and fixed ladders'' (Ex. 
172; see also Ex. 329 (1/20/2011, p. 221)). He pointed out that the 
construction fall protection standard (Sec.  1926.503(a)(1)) requires 
that employers train each employee ``who might be exposed to fall 
hazards,'' noting further that ``[i]f OSHA is committed to harmonizing 
its fall protection standards across industries . . . it needs to 
expand the final [rule] . . . and provide training for all workers who 
are exposed to fall hazards'' (Ex. 172).
    Mr. Kojola also urged OSHA to expand training to cover ``the 
hazards of falls on the same level'' (Ex. 363). He cited the testimony 
of Mr. Kendzior (NFSI) who said that the current annual cost of falls 
to the same level ``tops more than 80 billion dollars a year'' (Ex. 
363, citing Ex. 329 (1/21/2011, p. 201)).
    The American Federation of State, County and Municipal Employees 
(AFSCME) also supported expanding the scope of paragraph (a)(1), 
stressing the importance of training for employees who use ladders:

    Training should not be limited to workers who used a specific 
fall protection system. All workers should have hazard recognition 
training that includes prevention of falls from any height or 
surface. Because ladders are so common in the workplace, they are 
often considered ``safe.'' Yet many incident reports include 
injuries or near misses using a ladder. Any worker who is required 
to use a ladder in his/her work duties should get basic information 
on use, care, and limitations of ladders (Ex. 226).

    Ellis Fall Safety Solutions also supported adding ladder 
training to the final rule (Ex. 155).

    On the other hand, some commenters opposed expanding the scope of 
the training requirements. NCGA and TCGA both said:

    It is a difficult task to predict where falls may occur in an 
individual operation and it becomes an insurmountable task to 
predict where falls are most likely to occur on a general industry 
basis. Having a more prescriptive list of instances in this section 
may lead an employer to focus on the list, rather than focusing on 
the areas of highest risk in his individual facility (Exs. 73; 96).

    After analyzing the comments and other information in the record, 
OSHA decided to adopt the proposed fall hazard training scope without 
substantive change. For several reasons, OSHA believes that the scope 
of final paragraph (a)(1) is appropriate, and it is not necessary to 
expand the paragraph's scope. First, the scope of final Sec.  
1910.30(a)(1) is broad. It requires that employers train all workers 
who use personal fall arrest systems, travel restraint systems, and 
positioning systems. The final rule, like the proposal, gives employers 
great flexibility in selecting what type of fall protection system to 
use, and OSHA believes that many employers will use personal fall 
protection systems to protect their workers from fall hazards.
    Second, in addition to the workers who must receive training under 
final paragraph (a)(1), final Sec.  1910.30(b) requires that employers 
also train each worker who uses equipment covered by subpart D in the 
proper use, inspection, care, maintenance, and storage of that 
equipment. The equipment includes, but is not limited to, ladder safety 
systems, safety net systems, portable guardrails, and mobile ladder 
stands and platforms. Thus, as AFL-CIO, AFSCME, and other commenters 
recommended, employers must train each worker who uses fixed ladders 
equipped with ladder safety systems so they know the proper use, 
inspection, care, maintenance, and storage of that equipment.
    Third, employees are also protected by the inspection, control, 
work practice, and design requirements in subpart D. For instance, 
final Sec.  1910.23 specifies many design and work practice 
requirements for portable ladders. Under the final rule, employers are 
responsible for providing portable ladders that comply with the design 
requirements, as well as for ensuring that their workers understand and 
follow the work practices in Sec.  1910.23. OSHA believes that the 
measures in the final rule, taken as a whole, establish an effective 
plan to protect workers from slip, trip, and fall hazards.
    In final paragraph (a)(1), OSHA added language to clarify the date 
by which employers must train workers who use personal fall protection 
systems or who are required to be trained on fall hazards as specified 
elsewhere in subpart D. Additionally, the Agency added language to the 
final rule requiring employers to train workers before the worker can 
be exposed to the fall hazard. As noted in the preamble to the proposed 
rule, OSHA intended to include this language in the regulatory text (75 
FR 28899). Accordingly, employers must train their current workers 
after OSHA publishes the final rule, and train newly-hired workers 
before initially assigning them to a job where they may be exposed to a 
fall hazard. To give employers adequate time in which to develop and 
provide initial training, OSHA is allowing employers six months, on or 
before May 17, 2017, to train their workers in the requirements 
specified in Sec.  1910.30(a).
    Edison Electric Institute (EEI) said OSHA should not require 
employers to provide initial training if they have previously trained 
workers:

    The proposed regulation should allow employers to consider 
previously delivered training as compliant. Employers should not be 
required to retrain employees just because the new regulation is 
finalized. Work practices by many employers will not be changed by 
the new regulation and they should not be required arbitrarily to 
retrain employees (Ex. 207).

    OSHA agrees with EEI's comment. An employer whose workers have 
received training, either from the employer or another employer, that 
meets the requirements of final Sec.  1910.30(a) will not need to 
provide additional initial training. However, many of the training 
requirements in final Sec.  1910.30 are new, and if the initial 
training workers already have received does not meet all of the 
requirements in the final rule, employers will need to provide initial 
training on those requirements.
    OSHA does not think the requirement to provide training for workers 
whose previous training does not meet the final rule or to provide 
initial training for new workers will pose significant difficulties for 
employers. Many commenters said that they train workers annually or 
continually (Ex. 329 (1/19/2011, pgs. 25, 45, 240, 413); 329 (1/20/
2011, p. 284)). Since the final rule allows employers six months to 
provide initial training that complies with final Sec.  1910.30, OSHA 
believes that most employers will be able to work the required training 
into their existing annual or continuing training schedule.
    Finally, in final paragraph (a)(1), OSHA deleted the second 
sentence of

[[Page 82640]]

the proposed paragraph, and moved to it to final paragraph (a)(3). That 
sentence specified topics that training must cover (i.e., recognize the 
hazards of falling and understand the procedures to be followed to 
minimize the hazards), and OSHA believes it is most appropriate to 
group these topics with the other training topics in final paragraph 
(a)(3).
    Final paragraph (a)(2), like the proposed rule, requires that 
employers ensure a qualified person trains each worker in the 
requirements specified in Sec.  1910.30(a). Final Sec.  1910.21(b) 
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. OSHA believes that having a person who has a 
degree, certificate, or professional standing (hereafter ``degree'') or 
extensive knowledge, training, and experience (hereafter ``extensive 
knowledge'') in fall hazards, and who demonstrates ability to solve 
problems related to fall hazards, will help to ensure that employees 
receive effective training. Moreover, to stress the importance of this 
requirement and its application to all the training that Sec.  1910.30 
requires, OSHA made a separate provision for this requirement in the 
final rule.
    OSHA notes that the construction fall protection standard, instead 
of specifying that a qualified person must train workers, requires that 
employers ensure that a competent person is qualified to train workers 
in each of the items and topics specified in Sec.  1926.503(a)(2)(i)-
(viii). Despite the difference in language between final Sec. Sec.  
1910.30(a)(2) and 1926.503(a)(2), OSHA believes the standards are 
consistent. OSHA believes that competent persons \74\ ``qualified'' to 
train workers in all of the subjects and topics in the Sec.  1926.503, 
or final Sec.  1910.30, must have the capabilities of qualified 
persons. Accordingly, they must have capabilities (i.e., extensive 
knowledge and demonstrated ability to solve or resolve issues) beyond 
those capabilities specified for competent persons (i.e., to identify 
hazards and take corrective measures).
---------------------------------------------------------------------------

    \74\ A ``competent person,'' is defined by the construction rule 
(Sec.  1926.32(f)), as one who is capable of identifying existing 
and predictable hazards in the surroundings or working conditions 
that are unsanitary, hazardous, or dangerous to employees, and who 
has authorization to take prompt corrective measures to eliminate 
them.
---------------------------------------------------------------------------

    For purposes of the final rule, a trainer must have, at a minimum, 
a ``degree'' that addresses, or ``extensive knowledge'' of: The types 
of fall hazards, how to recognize them, and the procedures to minimize 
them; the correct procedures for installing, inspecting, operating, 
maintaining, and disassembling personal fall protection systems; and 
the correct use of personal fall protection systems and other equipment 
specified in Sec.  1910.30(a)(1). Because of the breadth of knowledge 
and demonstrated ability trainers in the final rule must have, OSHA 
believes that specifying that qualified persons must train workers best 
describes the capabilities necessary for training workers in the 
subjects Sec.  1910.30(a) requires.
    OSHA received several comments about the ``qualified'' person 
requirement in proposed paragraph (a)(2). Some commenters supported the 
proposed requirement. For instance, Mark Reinhart, owner of Award 
Window Cleaning Services (AWCS), said, ``[T]raining must be by a person 
or persons that are experienced in the correct training procedures and 
competent in each area of training'' (Ex. 216). He told of a company 
where he worked that used a veteran window cleaner to train a worker 
who, in turn, trained another worker:

    The problem was they were all trained to be risk takers--no 
safety lines, no three points of contact on ladders, no safety for 
the public, nothing at all about fall protection. So my employer put 
me at risk without knowing or researching the industry to find best 
practices or rules governing the window cleaning industry (Ex. 216).

Mr. Andrew Horton, safety training coordinator with Service Employees 
International Union (SEIU) Local 32BJ, recommended OSHA require that 
only approved outreach trainers conduct training (Ex. 329 (1/19/2011, 
p. 26)).
    On the other hand, some commenters opposed the ``qualified'' person 
requirement in proposed (a)(2). One commenter said the requirement was 
``too stringent and restrictive'' (Ex. 329 (1/20/2011, p. 298)). Mr. 
Lankford said that requiring qualified persons to train workers meant 
that trainers would have to be ``a specialist in fall protection, such 
as a vendor, manufacturer or consultant-trainer'' and not a ``crew 
chief, foreman, operations person or similar positions, even if 
knowledgeable'' (Ex. 368). Based on his interpretation of proposed 
paragraph (a)(2), Mr. Lankford concluded, ``There is no convincing 
argument that the training would not be equally effective if provided 
by a competent person'' (Ex. 368).
    OSHA believes Mr. Lankford's interpretation of proposed paragraph 
(a)(2) is not accurate. The definition of ``qualified'' in the final 
rule (Sec.  1910.21(b)) allows employers to have crew chiefs, 
supervisors, operations personnel, or other individuals train workers, 
provided they have the necessary ``degree'' or ``extensive knowledge'' 
outlined in the definition of qualified, and specified in final Sec.  
1910.30(a). Final Sec.  1910.30(a)(2) does not require that trainers 
possess a degree if they have the necessary knowledge, training, and 
experience. In fact, OSHA believes that many employers will draw upon 
the extensive knowledge and experience of their staffs to provide 
effective training. OSHA also notes that final Sec.  1910.30(a)(2) does 
not require that employers use qualified persons who are employees. 
Employers are free to use outside personnel to train workers.
    Mr. Lankford and EEI also raised concerns that requiring a 
qualified person to train workers would prohibit employers from using 
different training formats and technologies (Exs. 207; 368). Mr. 
Lankford said, ``The [qualified person] requirement seems to exclude 
the use of audio-visual or computer-based-training for the purpose of 
complying with this requirement'' (Ex. 368). Addressing the same issue, 
EEI said:

    The OSHA regulation should allow employers to use technology to 
deliver training. Stand up training by a qualified person is not the 
only effective method of training. The OSHA regulation should allow 
employers to use computer based training, web based training, and 
video training to meet fall protection training requirements (Ex. 
207).

    Final paragraph (a)(2) does not require or prohibit a specific 
format for delivering training to workers. OSHA supports the use of 
different formats (e.g., classroom, audio-visual, demonstration, 
practical exercises, field training, written) and new technology (e.g., 
online, interactive computer-based, web-based) to train workers in 
accordance with Sec.  1910.30. Thus, final paragraph (a)(2) allows 
employers to use video-based training and computer-based training, 
provided that:
     A qualified person, as defined in Sec.  1910.21(b), 
developed or prepared the training;
     The training content complies with the requirements in 
final Sec.  1910.30; and
     The employer provides the training in a manner each worker 
understands (Sec.  1910.30(d)).
    OSHA discusses this issue in further detail in the explanation of 
final paragraph (d) below.

[[Page 82641]]

    OSHA notes that employers may provide training using a format that 
is web based or interactive computer-based. In such cases, a qualified 
person must be available to answer any questions workers may have to 
comply with final paragraph Sec.  1910.30(a)(2).
    Final paragraph (a)(3) specifies the minimum subjects and topics 
that fall hazard training must cover. Final paragraph (a)(3) requires 
that employers provide training in at least the following topics:
     The nature of fall hazards in the work area and how to 
recognize them (final paragraph (a)(3)(i));
     The procedures that must be followed to minimize the 
hazards (final paragraph (a)(3)(ii));
     The correct procedures for installing, inspecting, 
operating, maintaining, and disassembling the personal fall protection 
systems that the worker uses (final paragraph (a)(3)(iii)); and
     The correct use of personal fall protection systems and 
equipment, including, but not limited to, proper hook-up, anchoring, 
and tie-off techniques, and methods of equipment inspection and storage 
as specified by the manufacturer (final paragraph (a)(3)(iv)).
    OSHA drew most of the requirements in final paragraph (a)(3) from 
the construction fall protection standard (Sec.  1926.503(a)(1) and 
(2)). However, OSHA revised final paragraph (a)(3) in several ways. 
First, as discussed above under final paragraph (a)(1), OSHA added to 
final paragraph (a)(3) the requirements to train workers in hazard 
recognition and the procedures to minimize fall hazards, which were in 
proposed paragraph (a)(1).
    Second, OSHA revised final paragraph (a)(3)(iv), proposed paragraph 
(a)(2)(iv), to eliminate training employees on the ``limitations'' of 
personal fall protection systems. OSHA believes it is not necessary to 
include that requirement in final paragraph (a)(3) because Sec.  
1910.132(f)(1)(iv) already requires training that addresses the 
limitations of PPE, which includes personal fall protection systems.
    Third, final paragraph (a)(3) does not include the proposed 
requirement that employers train workers in the use and operation of 
``guardrail systems, safety net systems, warning lines used in 
designated areas, and other protection'' (proposed paragraph 
(a)(2)(iii)). OSHA does not believe this provision is necessary because 
final paragraph (b) already addresses most of these fall protection 
systems and measures.
    Finally, OSHA changed the word ``erecting'' to ``installing'' in 
final paragraph (a)(3)(ii) (proposed paragraph (a)(2)(ii)). OSHA 
believes this clarification more accurately expresses the intent of the 
proposed paragraph.
    Although commenters generally supported the required worker 
training topics and subjects outlined in final paragraph (a)(3) (Exs. 
53; 189; 216; 226), others said OSHA should increase or eliminate some 
of the training requirements. Mr. Horton said that window cleaners need 
more detailed training than what OSHA proposed (Ex. 329 (1/19/2011, p. 
22)). The Society of Professional Rope Access Technicians (SPRAT) 
recommended that OSHA specify ``at least topics for knowledge, skills, 
and capabilities for each level of employee,'' and require specific 
training and certification by an industry organization for rope access 
(Ex. 205). OSHA did not incorporate SPRAT's recommendations in the 
final rule. The Agency believes that the performance-based language in 
the final rule provides flexibility for employers, and does not 
prohibit employers from providing more specialized training or 
requiring certification or demonstration of the employee's knowledge, 
skills, and capabilities.
    Ameren Corporation opposed requiring training to install and 
disassemble personal fall protection systems. Ameren said such training 
was not always necessary because some employees may not perform these 
tasks (Ex. 189). OSHA agrees that employers need not train employees in 
tasks that they do not perform. However, under the final rule, if a 
worker has to install and disassemble personal fall protection systems, 
the employer must ensure the worker knows how to perform those tasks 
safely and correctly before beginning the work.
Paragraph (b)--Equipment Hazards
    Final paragraph (b), like the proposed rule, contains training 
requirements related to equipment hazards. The provisions require that 
employers ensure workers are trained in the following:
     The proper care, inspection, storage, and use of equipment 
covered by subpart D (final paragraph (b)(1));
     How to properly place and secure dockboards to prevent 
unintentional movement (final paragraph (b)(2));
     How to properly rig and use a rope descent system (RDS) 
(final paragraph (b)(3)); and
     How to properly set up and use designated areas (final 
paragraph (b)(4)).
    Final paragraph (b)(1) applies to the extent that workers use 
equipment covered by subpart D. Under this provision employers must 
train workers in equipment as well as fall protection systems that 
final paragraph (a) does not cover. Therefore, as mentioned above, 
training in final paragraph (b)(1) must cover equipment such as safety 
net systems, ladder safety systems, warning lines, portable guardrails, 
and motorized materials handling equipment used on dockboards.
    EEI said that OSHA should not require training in portable 
guardrails because ``the purpose and use of these devices is obvious'' 
(Ex. 207). While some workers may know how to set up and use portable 
guardrails, the same is not true for all workers, particularly new 
workers. Thus, final paragraph (b)(1) must cover portable guardrails to 
protect all workers from falls.
    OSHA added language to final paragraph (b)(1) to clarify the date 
by which employers must train workers in equipment hazards. 
Accordingly, employers must train their current workers after OSHA 
publishes the final rule, and train newly hired workers before 
initially assigning them to a job where they may be exposed to a fall 
hazard. To give employers adequate time in which to develop and provide 
initial training, OSHA is allowing employers six months, until May 17, 
2017, to provide the required training.
    Like final paragraph (a), employers whose workers have received 
training, either from the employer or another employer, that meets the 
requirements of final Sec.  1910.30(b) will not need to provide 
additional initial training to those workers. However, the training 
requirements in final Sec.  1910.30 are new, and if the initial 
training workers already have received does not meet all of the 
requirements in the final rule, employers will need to provide initial 
training on those requirements.
    Final paragraph (b)(2) requires employers to train workers who use 
dockboards on how to properly place and secure them to prevent 
unintentional movement. The Agency believes training in the proper 
positioning of dockboards (e.g., adequate overlap, secure position) to 
avoid unintentional movement is needed to help prevent worker injury. 
OSHA did not make any substantive changes to proposed paragraph (b)(2) 
and did not receive any comments. OSHA has adopted paragraph (b)(2) 
with only minor revisions for clarity.
    Final paragraph (b)(3) requires employers to train workers who use 
RDS in the proper rigging and use of the equipment, in accordance with 
Sec.  1910.27. The final rule eliminates the retraining requirement 
specified for RDS in proposed paragraph (b)(3) because final paragraph 
(c) of final Sec.  1910.30

[[Page 82642]]

already requires retraining. A number of commenters supported OSHA's 
RDS training requirements, particularly in the window cleaning industry 
(Exs. 65; 66; 76; 137; 222; 362; 364). Gerard McEneaney, business 
representative of the Window Cleaners Division of SEIU Local 32BJ, also 
supported the RDS training requirements, stating, ``RDS relies heavily 
on training, workplace practices, and administrative controls to 
overcome its inherent dangers'' (Ex. 329 (1/19/11, p. 17)). OSHA notes 
that workers using RDS are exposed to fall hazards and must use 
personal fall arrest systems; therefore, employers must train them as 
required by final Sec.  1910.30(a).
    Paragraph (b)(4) is a new paragraph that OSHA added to the final 
rule requiring employers to train each worker who uses a designated 
area in the proper set up and use of the area. OSHA inadvertently left 
this training requirement out of the proposed rule. But OSHA intended 
to include this requirement in the proposed rule, and the preamble 
noted that ``it is essential for authorized employees in designated 
areas'' to be trained (75 FR 28889). Under the final rule in some 
situations OSHA permits employers to protect workers from ``unprotected 
sides and edges'' on low-slope roofs by using designated areas, which 
final Sec.  1910.21(b) defines as ``a distinct portion of a walking-
working surface delineated by a warning line in which work may be 
performed without additional fall protection.''
    Designated areas are not conventional fall protection systems or 
engineering controls. Designated areas are alternative fall protection 
methods that are effective only when set up and used correctly and 
safely. This alternative method relies heavily on employers properly 
delineating the designated area and successfully keeping workers within 
that area. To ensure workers follow the requirements for designated 
areas, OSHA believes it is important that employers train them so they 
know when they can use designated areas and how to set up designated 
areas and work in them safely.
Paragraph (c)--Retraining
    Final paragraph (c), like the proposal, requires that employers 
retrain workers when they have reason to believe that those workers do 
not have the understanding and skill that final paragraphs (a) and (b) 
require. In particular, final paragraph (c) requires that employers 
retrain workers in situations including, but not limited to, the 
following:
     When workplace changes render previous training obsolete 
or inadequate (final paragraph (c)(1));
     When changes in the types of fall protection systems or 
equipment workers use renders previous training obsolete or inadequate 
(final paragraph (c)(2)); or
     When inadequacies in a worker's knowledge or use of fall 
protection systems or equipment indicate that the worker does not have 
the requisite understanding or skill necessary to use the equipment or 
perform the job safely (final paragraph (c)(3)).
    The training requirements in this section impose an ongoing 
responsibility on employers to maintain worker proficiency. As such, 
when workers are no longer proficient, the employer must retrain them 
in the requirements of final paragraphs (a) and (b) before workers 
perform the job again. Examples of when retraining is necessary 
include:
     When the worker performs the job or uses equipment in an 
unsafe manner;
     When the worker or employer receives an evaluation or 
information that the worker is not performing the job safely; or
     When the worker is involved in an incident or near-miss.
    Several commenters supported the proposed retraining requirements. 
For example, Andrew Horton, representing the SEIU Local 32BJ Window 
Cleaning Apprentice Training Program, said retraining is ``imperative 
whenever there are changes in the working conditions, or there is an 
indication that prior training has not been effective'' (Ex. 329 (1/19/
2011, p. 24)).
    OSHA received only one comment opposing retraining. Mr. Steve Smith 
of Verallia said the proposed retraining requirement was ``too 
subjective and vague to allow for consistent application and/or 
enforcement.'' He recommended that OSHA require ``training upon initial 
employment and annually thereafter,'' which OSHA's portable fire 
extinguisher standard requires (Sec.  1910.157) (Ex. 171).
    OSHA disagrees that the performance-based language in proposed 
paragraph (c) is too vague and subjective. OSHA believes that final 
paragraph (c) specifies clearly when retraining is necessary. The 
language in final paragraph (c) is similar to the retraining provisions 
in other OSHA standards, including the PPE (Sec.  1910.132(f)(3)), 
lockout/tagout (Sec.  1910.147(c)(7)(iii)), and powered industrial 
truck standards (Sec.  1910.178(l)(4)). Those standards have been 
effective in ensuring that workers receive additional training when 
necessary. OSHA also believes that the performance-based retraining 
requirements in final paragraph (c) provide greater flexibility for 
employers than requiring annual retraining.
    OSHA also disagrees with Mr. Smith's recommendation that OSHA limit 
the final rule to ``training upon initial employment and annually 
thereafter.'' This language appears to require that employers must 
train new workers, but would not have to train current employees after 
OSHA publishes the final rule. As discussed above, OSHA believes that 
employers need to provide retraining to current workers in accordance 
with final Sec.  1910.30 when previous training is obsolete or 
inadequate. Finally, OSHA believes that identifying the specific 
situations when employers must provide retraining more precisely 
targets the real need for additional training than does an inflexible 
requirement such as annual training. Therefore, OSHA believes the final 
rule will be more effective, and will provide employers with more 
flexibility, than the alternative Mr. Smith recommends.
Paragraph (d)--Training Must Be Understandable
    Final paragraph (d), like the proposed rule, requires that 
employers provide information and training to each worker in a manner 
that the employee understands. This language indicates that employers 
must provide information and instruction in a manner that workers 
receiving the training are capable of understanding so they will be 
able to perform the job in a safe and proper manner.
    The final rule makes clear that training must account for the 
specific needs and learning requirements of each worker. For example, 
if a worker does not speak or adequately comprehend English, the 
employer must provide training in a language that the worker 
understands. Also, if a worker cannot read, employers will need to use 
a format, such as audio-visual, classroom instruction, or a hands-on 
approach, to ensure the worker understands the training they receive. 
Similarly, if a worker has a limited vocabulary, the employer must 
provide training using vocabulary the worker comprehends.
    An increasing number of employers are using computer-based and web-
based training (Exs. 207; 329 (1/20/2011, p. 191); 368). In such 
situations, final paragraph (d) requires that employers ensure that 
workers have adequate computer skills so they can operate the program 
and understand the information presented. Moreover, to ensure that 
employees ``understand'' computer-based training, as well as

[[Page 82643]]

other types of training, OSHA believes it may be necessary for 
employers to ensure that a qualified person is available to answer 
questions and clarify information. For example, when employers use 
computer-based training, they could make a qualified person 
``available'' through an interactive computer program (e.g., WebEx), or 
have a qualified person present to answer questions. (For additional 
information on making training understandable, see OSHA's Training 
Standards Policy Statement).\75\
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    \75\ OSHA's Training Standards Policy Statement is available 
from OSHA's website at: https://www.osha.gov/dep/standards-policy-statement-memo-04-28-10.html.
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    OSHA believes that employers should not have difficulty complying 
with final paragraph (d), or any other provision in Sec.  1910.30. Many 
industry, labor, and professional organizations; training consultants; 
vendors; and manufacturers already provide employers with training and 
training materials to ensure that workers understand how to perform the 
job and use equipment correctly and safely (Exs. 329 (1/18/2011, pgs. 
82, 117, 186, 258); 329 (1/20/2011, pgs. 182, 287); 329 (1/21/2011, 
pgs. 9, 92, 200, 206)).
    A number of commenters said they already provide bi-lingual or 
multi-lingual training (Exs. 329 (1/19/2011, pgs. 118, 241, 319, 352, 
413, 416, 462)). In addition, training and professional organizations 
have bi-lingual training materials available. For instance, the 
International Window Cleaning Association Safety Certification Program 
provides a bi-lingual study curriculum (Ex. 222).
    Many commenters said they already use different formats (e.g., 
classroom, audiovisual, demonstration, practical exercises, field 
training, written) and new technology (e.g., interactive computer-
based, web-based) to ensure that training is understandable (Ex. 329 
(1/18/2011, pgs. 148, 258)). Commenters also said they use testing and 
training evaluation to ensure employees understand training (Ex. 329 
(1/20/2011, p. 318)). Some commenters also supported certification of 
employee training by independent groups (e.g., professional 
organizations) (Exs. 205; 222; 364).
    Some commenters said they are using ``interactive training'' to 
make training understandable. For instance, SEIU Local 32BJ said their 
window cleaner training programs are ``highly interactive'' (Ex. 329 
(1/19/2011, pgs. 120-121)), and they support requiring ``interactive'' 
training. Diane Brown, senior health and safety specialist with AFSCME, 
agreed, stating, ``Training should be as interactive as possible. We 
support . . . [adopting] training methods that ensure workers get the 
information they need'' (Ex. 226). Eric Frumin, health and safety 
director with Change to Win, stated:

    [I]t's not sufficient for OSHA to simply require employers to 
provide training in a language that workers understand. . . . It's 
one of the most important advances in OSHA rulemaking, to assure 
that the training is not only done in a language the workers 
understand, but that it's interactive, that workers have a chance to 
ask questions (Ex. 329 (1/19/2011, p. 119)).

    Some commenters said OSHA should require that employers use 
specific training methods and techniques. For example, SEIU said 
training should include ``some combination of hands-on and classroom 
training methods that have been so successful in our training'' (Ex. 
329 (1/19/2011, pgs. 25-26)). Ellis Fall Safety Solutions said that 
training methods must include the following:

    [T]here has to be a written curriculum, a presentation and 
written or recorded tests [that] see if the material has been picked 
up and the final thing is to check by observing discretely if the 
work is being done to the proper methodology that was taught. All 
these are subject to verification by a CSHO (Ex. 155).

    Some commenters said that supervision is necessary to ensure 
training is successful. For instance, Mr. Frumin said, ``You can't take 
the chance that someone didn't understand the training. You've got to 
supervise them,'' (Exs. 329 (1/19/2011, pgs. 122-23); 329 (1/21/2011, 
p. 21)).
    OSHA agrees that many of the training methods and elements the 
commenters recommend can help to make workplace training 
understandable, and generally supports their use. The Agency also 
believes that the final rule should give employers flexibility to 
develop training programs and use those training methods that best fit 
the needs of their workers and workplace. Therefore, OSHA finalizes 
paragraph (d) with only minor revisions for clarity.
    OSHA also received comment on other training issues, including 
whether the final rule should require a minimum amount of time for 
worker training. Mr. Horton of SEIU Local 32BJ urged that OSHA mandate 
that training be a ``minimum number of hours to prevent any inadvertent 
or negligent training failures'' (Ex. 329 (1/19/2011, p. 25)). In 
contrast, Mr. Robert Miller, senior safety supervisor with Ameren 
Corporation, said OSHA should not set time requirements for providing 
training because it would interfere with the performance-based approach 
in the proposed rule (Ex. 189). Proposed Sec.  1910.30 did not require 
that training meet a minimum time requirement, and there is no minimum 
time requirement for training in final Sec.  1910.30. OSHA notes that 
the preliminary and final economic analysis include times for training, 
but the Agency notes that it included those times only for the purpose 
of the estimating the costs of the final rule.
    Finally, ASSE suggested that Sec.  1910.30 include a specific 
reference to the ANSI/ASSE Z490.1 consensus standard (Criteria for 
Accepted Practices in Safety, Health and Environmental Training) as a 
source of guidance information for employers (Ex. 127). That voluntary 
standard establishes criteria for safety, health, and environmental 
training programs. OSHA agrees that the consensus standard may be a 
valuable source of information about training programs. However, it 
does not address walking-working surfaces or fall and equipment hazards 
and OSHA has decided to not reference the standard in the final rule.

B. Final Sec.  1910.140

    OSHA is adding a new section to subpart I Personal Protective 
Equipment (PPE) (29 CFR 1910, subpart I) to address personal fall 
protection systems, which include personal fall arrest, travel 
restraint, and positioning systems (29 CFR 1910.140). The new section 
establishes requirements for the design, performance, use, and 
inspection of personal fall protection systems and system components 
(e.g., body harnesses, lifelines, lanyards, anchorages).
    OSHA also is adding two non-mandatory appendices that provide 
information to help employers select, test, use, maintain, and inspect 
personal fall protection equipment (Appendix C) and examples of test 
methods for personal fall arrest and positioning systems to ensure that 
they meet the requirements of Sec.  1910.140 (appendix D).
    In the final rule, OSHA adapts many provisions from its other fall 
protection standards, primarily Powered Platforms for Building 
Maintenance (29 CFR 1910.66, appendix C); Personal Fall Arrest Systems 
in Shipyard Employment (29 CFR 1915.159); Positioning Device Systems in 
Shipyard Employment (29 CFR 1915.160); and Fall Protection in 
Construction (29 CFR part 1926, subpart M). These adaptations ensure 
that OSHA fall protection rules are consistent across various 
industries. OSHA notes that other standards also require the use of

[[Page 82644]]

personal fall protection systems (Vehicle-Mounted Elevating and 
Rotating Work Platforms (Aerial Lifts) (29 CFR 1910.67(c)(2)(v)); 
Telecommunications (29 CFR 1910.268(g)); and Electric Power Generation, 
Transmission, and Distribution (29 CFR 1910.269(g)); however, the 
requirements and criteria in those standards generally are not 
comprehensive or broadly applicable.
    Similar to the final rule revising 29 CFR part 1910, subpart D, 
final Sec.  1910.140, when appropriate, also draws from national 
consensus standards addressing personal fall protection systems. Those 
standards include:
     ANSI/ALI A14.3-2008, American National Standards for 
Ladders--Fixed (A14.3-2008) (Ex. 8);
     ANSI/ASSE A10.32-2012, Personal Fall Protection Used in 
Construction and Demolition Operations (A10.32-2012) (Ex. 390);
     ANSI/ASSE Z359.0-2012, Definitions and Nomenclature Used 
for Fall Protection and Fall Arrest (Z359.0-2012) (Ex. 389);
     ANSI/ASSE Z359.1-2007, Safety Requirements for Personal 
Fall Arrest Systems, Subsystems, and Components (Z359.1-2007) (Ex. 37);
     ANSI/ASSE Z359.3-2007, Safety Requirements for Positioning 
and Travel Restraint Systems (Z359.3-2007) (Ex. 34);
     ANSI/ASSE Z359.4-2013, Safety Requirements for Assisted-
Rescue and Self-Rescue Systems (Z359.4-2013) (Ex. 22);
     ANSI/ASSE Z359.12-2009, Connecting Components for Personal 
Fall Arrest System (Z359.12-2009) (Ex. 375); and
     ANSI/IWCA I-14.1-2001, Window Cleaning Safety (I-14.1-
2001) (Ex. 10).
    The final rule adopts a number of the provisions in proposed Sec.  
1910.140 with only minor, non-substantive technical or editorial 
changes. For many of these provisions, OSHA did not receive any 
comments from the public. Other provisions in the final rule include 
revisions based on information in the record and comments OSHA 
received. OSHA also revised provisions in the proposed rule to clarify 
the final rule, thereby making it easier for employers, workers, and 
others to understand.
Section 1910.140--Personal Fall Protection Systems
Paragraph (a)--Scope and Application
    Paragraph (a) of the final rule specifies that employers must 
ensure each personal fall protection system that part 1910 requires 
complies with the performance, care, and use criteria specified in 
Sec.  1910.140. This section defines ``personal fall protection 
system'' as a system that workers use to provide protection from 
falling, or safely arrest a fall if one occurs (Sec.  1910.140(b)). As 
mentioned earlier, personal fall protection systems include personal 
fall arrest, travel restraint, and positioning systems.
    OSHA notes that not only does Sec.  1910.140 apply to the new and 
revised requirements in subpart D, but also it applies to existing 
requirements in part 1910 that mandate or allow employers to protect 
workers from fall hazards using personal fall protection systems 
(Sec. Sec.  1910.66; 1910.67; 1910.268; and 1910.269).
    OSHA believes that the scope of final Sec.  1910.140 and the 
requirements the final rule establishes are necessary. Importantly, 
OSHA did not receive any comments opposing the scope and application in 
paragraph (a). OSHA believes that without establishing design and 
performance criteria, there is risk that personal fall protection 
systems, particularly personal fall arrest systems, may fail and put 
workers at risk of harm. Such failure can occur for a number of 
reasons, including using:
     The wrong or inadequate system (especially one that is not 
strong enough for the particular application in which it is being 
used);
     A system not tested or inspected before use;
     A system not rigged properly;
     A system that does not have compatible components; or
     A system on which workers are not properly trained.
    For several reasons, OSHA believes that employers should not 
experience significant difficulty complying with the final rule. Most 
of the requirements in the final rule come from OSHA's existing fall 
protection standards, as well as national consensus standards 
addressing fall protection, which also have been in place for years and 
represent industry best practices. Accordingly, OSHA believes that 
virtually all personal fall protection systems manufactured today meet 
the requirements in those standards as well as final Sec.  1910.140. In 
addition, to assist employers in complying with the rule, OSHA includes 
an appendix in the final rule to provide employers with readily 
accessible information that will help them comply with final Sec.  
1910.140.
Paragraph (b)--Definitions
    Final paragraph (b) defines terms that are applicable to final 
Sec.  1910.140. OSHA believes that defining key terms will make the 
final rule easier to understand and, thereby, will increase compliance.
    OSHA drew most of the definitions in paragraph (b) from existing 
OSHA and national consensus standards on fall protection. For instance, 
many of the terms in this paragraph also are found in the Powered 
Platforms standard (Sec.  1910.66(d) and appendix C); construction 
standards (Sec. Sec.  1926.450(b), 1926.500(b) and 1926.1050(b)), and 
the shipyard employment PPE standard (Sec.  1915.151). OSHA believes 
that having consistent definitions across the Agency's standards will 
increase understanding of OSHA's fall protection rules, decrease the 
potential for confusion, and enhance worker safety. Having consistent 
definitions also will help to increase understanding and compliance for 
workers engaged in more than one type of work, such as general industry 
and construction activities.
    Final paragraph (b) differs from the proposed rule in several 
respects. First, the final rule does not retain the proposed 
definitions for the following terms because OSHA does not use these 
terms in final Sec.  1910.140: ``buckle'' and ``carrier.'' Second, 
final paragraph (b) adds two new terms to the proposed definitions: 
``carabiner'' and ``safety factor.'' Third, the final rule also 
substantially modifies the definition of ``competent person'' from the 
proposed rule. OSHA believes that additional revisions, particularly 
those made in response to commenter suggestions, clarify the meaning of 
the terms, and ensure that they reflect current industry practice.
    OSHA carries forward the following terms and definitions from the 
proposed rule without change, or with mostly minor editorial and 
technical changes. 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. OSHA believes many of the remaining definitions are 
``terms of art'' universally recognized by those who use personal fall 
protection systems. Even so, OSHA still received comments on a number 
of the definitions, as discussed below.
    Anchorage. The final rule, like the proposal, defines ``anchorage'' 
as a secure point of attachment for equipment such as lifelines, 
lanyards, or deceleration devices. The definition in the final rule is 
consistent with the one in OSHA's Powered Platforms, construction, and 
shipyard employment fall protection standards (Sec. Sec.  1910.66, 
appendix C, Section I(b); 1915.151(b); 1926.500(b)) as well as the 
definition in

[[Page 82645]]

A10.32-2012 (Section 2.4) and Z359.0 (Section 2.5).
    OSHA notes that the anchorage definition in the Powered Platforms 
standard requires that the anchorage must be ``independent of the means 
of supporting or suspending the employee.'' The final rule also 
includes this requirement in Sec.  1910.140(c)(12), discussed below. 
OSHA did not receive any comments on the proposed definition.
    Belt terminal. As defined in the final rule, this term means an end 
attachment of a window cleaner's positioning system used to secure the 
body harness or belt to the window cleaner's belt anchor. The term is 
specific to fall protection for window cleaning operations.
    Neither existing OSHA fall protection standards nor I-14.1-2001 
define the term. Although OSHA believes the meaning of ``belt 
terminal'' is clear, the Agency is including the definition in the 
final rule to clarify the system or criteria of requirements for window 
cleaner's positioning systems (see discussion of Sec.  1910.140(e)). 
OSHA did not receive any comments or opposition to including the 
definition, and adopts the definition as proposed.
    Body belt. The final rule defines ``body belt'' as a strap with 
means both for securing it about the waist and for attaching it to 
other components such as a lanyard used with positioning, travel 
restraint, or ladder safety systems. The definition of ``body belt'' in 
final rule generally is consistent with OSHA's Powered Platforms, 
construction, and shipyard employment fall protection standards 
(Sec. Sec.  1910.66, appendix C, Section I(b); 1915.151(b); 
1926.500(b)). However, those definitions do not specify with which 
systems employers may use body belts. The final rule clarifies that 
employers may use body belts only with positioning, travel restraint, 
and ladder safety systems, and the final rule adds language specifying 
that employers cannot use body belts with personal fall arrest systems 
(see discussion in Sec.  1910.140(d)(3)). Including this language makes 
the final definition consistent with the definition in A10.32. That 
standard defines ``body belt,'' which it also refers to as a safety or 
waist belt, as ``support which is used for positioning, restraint or 
ladder climbing only'' (A10.32-2012, Section 2.8).
    The Z359.0 standard uses the term ``body support'' instead of body 
belt, and defines it as ``an assembly of webbing arranged to support 
the human body for fall protection purposes, including during and after 
fall arrest'' (Section 2.17). A note to the definition explains that 
body support generally refers to a harness (full body, chest, chest-
waist) or body belt. OSHA did not receive any comments on the 
definition and adopts the definition as proposed.
    Body harness. The final rule defines ``body harness'' as straps 
that secure about a worker in a manner that distributes fall arrest 
forces over at least the worker's thighs, pelvis, waist, chest, and 
shoulders should a fall occur. The final rule specifies that a body 
harness also is a means for attaching it to other components of a 
personal fall protection system.
    The final rule is nearly identical to the definition of ``body 
harness'' in OSHA's Powered Platforms, construction, and shipyard 
employment fall protection standards (Sec. Sec.  1910.66, appendix C, 
Section I(b); 1915.151(b); 1926.500(b)), as well as the definition of 
``body support'' in A10.32 (Section 2.9). The Z359.0 standard includes 
definitions of various types of body harnesses, including chest 
harnesses, chest-waist harnesses, evacuation harnesses, full-body 
harnesses, and positioning harnesses. The definition in the final rule 
is consistent with the ``full body harness'' definition in Z359.0 
(Section 2.83).
    In the proposal, OSHA requested comment on whether the Agency 
should define other types of harnesses in the final rule, specifically 
those harnesses that do not have a waist strap or component (75 FR 
28903). ISEA (Ex. 185) and CSG (Ex. 198) both said that ISEA-member 
companies reported that it was more common for body harnesses not to 
have waist straps. They said this type of harness distributes fall 
arrest forces over the entire torso and has assemblies that prevent the 
shoulder straps from separating to the extent that the worker could 
fall out of the harness. OSHA concludes that this type of harness meets 
the definition of ``body harness,'' and it is not necessary to revise 
the term. However, in the final rule, OSHA did not include the other 
specific types of body harnesses (e.g., chest-waist, chest) listed in 
Z359.0. The other types of harnesses do not spread fall arrest forces 
across a broad area of the body, and the final rule does not permit 
their use.
    With one exception, the definition in the final rule also is 
consistent with I-14.1-2001. The definition of ``body harness'' in I-
14.1-2001 permits the distribution of fall arrest forces over ``any 
combination'' of the thighs, pelvis, waist, chest, and shoulders, 
rather than across all of those parts of the worker's body combined 
(Section 2). The final rule, by contrast, does not incorporate the 
``any combination'' language in I-14.1. OSHA believes that adopting the 
language from I-14.1-2001 would allow employers to use harnesses that 
concentrate fall arrest forces in a small anatomical area, rather than 
across the entire torso and thighs. The dangers of concentrating fall 
arrest forces in a limited anatomical area (e.g., waist and chest only) 
are well documented. In the proposed rule, OSHA discussed research of 
Dr. Maurice Amphoux, et al. conducted on the use of thoracic harnesses 
for personal fall arrest. Their study concluded that such harnesses are 
not suitable for personal fall arrest because the forces transmitted to 
the body during post-fall suspension constricted the rib cage and could 
cause asphyxiation (75 FR 28903). The proposed rule also identified an 
increased danger of falling out of chest-waist harnesses. Therefore, 
OSHA believes that the definition of ``body harness'' in the final rule 
is more protective than the one in I-14.1-2001.
    Carabiner. The final rule defines carabiner as a connector 
comprised generally of a trapezoidal or oval-shaped body with a closed 
gate or similar arrangement that may be opened to attach another 
object. When released, the carabiner gate automatically closes to 
retain the object. There are generally three types of carabiners:
     Automatic locking, with a self-closing and self-locking 
gate that remains closed and locked until intentionally unlocked and 
opened for connection or disconnection;
     Manual locking, with a self-closing gate that must be 
manually locked by the user and that remains closed and locked until 
intentionally unlocked and opened by the user for connection or 
disconnection; and
     Non-locking, with a self-closing gate cannot be locked.
    Commenters recommended that OSHA apply to carabiners the same 
criteria applicable to snaphooks (Exs. 185; 198). For example, the 
International Safety Equipment Association (ISEA) said that applying 
the snaphook performance criteria to carabiners would ensure that the 
final rule specifically covers the two most common types of connectors 
(Ex. 185). OSHA agrees, and added a definition of carabiner to the 
final rule that is almost identical to the one in Z359.0-2012 (Section 
2.20) and A10.32-2012 (Section 2.12). Those definitions note that there 
are three types of carabiners: Automatic locking (i.e., self-closing 
and self-locking), manual locking, and non-locking. The final rule, 
like Z359.0 and A10.32, only allows the use of automatic-locking 
carabiners and snaphooks.

[[Page 82646]]

    Competent person. In the final rule, OSHA defines a ``competent 
person'' as a person who:
     Is capable of identifying existing and predictable hazards 
in any personal fall protection system or component as well as in their 
application and uses with related equipment; and
     Has the authorization to take prompt corrective measures 
to eliminate the identified hazards.
    The definition in the final rule differs from the proposed 
definition in two ways. First, the final rule requires that the 
competent person be capable of identifying both ``existing and 
predictable hazards,'' while the proposal specified that the competent 
person identify existing ``hazardous or dangerous conditions.'' Second, 
the final rule adds language specifying that competent persons must 
have authority to take prompt, corrective actions to eliminate the 
hazards that they identified. These changes expand the definition of 
competent person and make the final rule consistent with the definition 
applicable to OSHA's construction standards (Sec.  1926.32), as well as 
the definition in Z359.0-2012 (Section 2.30) and A10.32-2012 (Section 
2.16).
    Under the final rule employers must ensure that the worker(s) they 
select to be the competent person(s) have the capability and competence 
to identify existing hazards and predictable hazards (i.e., hazards 
likely to occur when using personal fall protection systems, 
components, and related equipment). Competent persons working with 
personal fall protection systems in construction already must be able 
to identify both existing and predictable hazards. OSHA believes that 
requiring the same of competent persons in general industry 
establishments that also perform construction activities should not 
pose a problem, especially since they may be the same person.
    OSHA added the language requiring that competent persons have 
authority to take prompt corrective action in response to the large 
number of commenters who urged OSHA to adopt that language from OSHA's 
construction standards (Sec.  1926.32), Z359.0, and A10.32. OSHA did 
not include the language in the proposed rule because the Agency 
believed that competent persons dealing with personal fall protection 
systems in general industry were likely to serve a different function 
than competent persons in the construction industry (75 FR 28904). In 
the preamble to the proposed rule, OSHA said that the competent person 
in general industry most likely would be an outside contractor who 
specializes in fall protection systems, designs fall protection 
systems, and/or provides fall protection training. OSHA said it would 
be unlikely that employers would grant an outside contractor authority 
over work operations. In addition, OSHA said it did not believe the 
definition of competent person in Sec.  1926.32 was widely recognized 
and accepted in general industry. Thus, in the proposed rule OSHA used 
the definition of competent person from appendix C of Sec.  1910.66.
    By contrast, when OSHA promulgated the construction fall protection 
standards, the Agency applied the definition of ``competent person'' in 
Sec.  1926.32 because the Agency found that the construction industry 
widely recognized the term, which OSHA adopted in 1971 pursuant to 
Section 6(a) of the OSH Act (29 U.S.C. 655(a)). However, commenters on 
the proposed rule said that the construction industry definition is as 
widely known, accepted, and used in general industry as it is in the 
construction industry (Exs. 74; 122). They urged OSHA to incorporate 
the construction industry definition of competent person in Sec.  
1910.140.
    Many commenters who disagreed with the proposed definition said 
that it is essential that the competent person have authority to take 
prompt corrective action when they find hazards (Exs. 69; 74; 185; 190; 
198; 226). They argued that the duty of the competent person is to 
ensure that personal fall protection systems, components, and related 
equipment are safe, and they cannot carry out that duty without having 
the ability to take corrective action to keep the system working 
properly and the workplace safe. In addition, they said that employers, 
workers, fall protection equipment suppliers, and national consensus 
standards all operate with the expectation that a competent person will 
have authority to take action when needed to correct problems. The 
American Foundry Society, for instance, pointed out:

    Without any such authority, a competent person under this 
definition will be put in the position of being able to recognize 
the hazard, but likely not be able [to] do anything about it. That 
is not a truly competent person and does not reflect the needed 
level of competence to help ensure worker safety (Ex. 190).

Similarly, ISEA said that OSHA's proposed definition amounted to a 
subject matter expert rather than a competent person. They asserted 
that the rule must define a competent person as one who is on site; has 
authority to shut down work operations if there are imminent hazards; 
and take PPE, including personal fall protection systems, out of 
service if needed (Ex. 185).
    The American Federation of State, County and Municipal Employees 
(AFSCME) (Ex. 226) also supported giving the competent person authority 
to take prompt, corrective action. AFSCME said that many employers may 
seek outside assistance in assessing the risks and types of fall 
protection systems, but that no outside party should be an employer's 
competent person:

    It is more likely that an internal supervisor would be given the 
responsibility for ensuring the employer's fall protection systems 
are in place, equipment is inspected, and that employees are trained 
and using equipment properly. This person or persons should be 
competent in the meaning of the standard, and should have the 
authority to correct hazards when found (Ex. 226).

    ISEA made a similar point, saying that it was in the best interest 
of worker protection to have an on-site accountable decision maker 
because the competent person would be able to examine the personal fall 
protection systems, components, and related equipment and know 
firsthand the risks involved. Armed with that knowledge, ISEA said an 
on-site competent person would be less likely to take risks with 
workers' lives. ISEA said that manufacturers and other knowledgeable 
sources who are not on-site will not have the knowledge to make 
service-life decisions about fall arrest equipment. Capital Safety 
Group (CSG) (Ex. 198) agreed, saying that on-site, accountable decision 
makers who are fully aware of the risks associated with fall protection 
equipment are less likely to put workers' lives in jeopardy. Access 
Rescue (Ex. 69) and Extreme Access, Inc. (Ex. 74), expressed similar 
concerns.
    OSHA agrees with commenters that, to ensure workers have safe 
personal fall protection systems, components, and related equipment the 
competent person must have authority to take necessary corrective 
action when they identify hazards. In addition, adding the language to 
the final rule will make the definition consistent with the widely 
known term in OSHA's construction standard and national consensus 
standards, which should increase employer compliance.
    OSHA also agrees with commenters that, to carry out their role, 
competent persons should be on-site. With appropriate training and 
experience, OSHA believes that a worker at the worksite can function as 
the competent person.
    Connector. The final rule, like the proposal, defines ``connector'' 
as a

[[Page 82647]]

device used to couple or connect together parts of a personal fall 
protection system. Examples of connectors include snaphooks, 
carabiners, buckles, and D-rings.
    The definition in the final rule is derived from OSHA's Powered 
Platforms, construction, and shipyard employment fall protection 
standards, as well as Z359.0-2012 (Section 2.36) and A10.32-2012 
(Section 2.18). The definition of ``connector'' in those standards 
includes information explaining that connectors may be independent 
components of a personal fall protection system or integral parts sewn 
into the system. Since the final rule permits employers to use 
connectors that are either independent or integral components of a 
personal fall protection system, OSHA does not believe it is necessary 
to include the explanatory material in the final definition of 
``connector.'' OSHA did not receive any comments and adopts the 
definition as proposed.
    D-ring, as used in the final rule, is a connector used in:
     Harnesses, as an integral attachment element or fall 
arrest attachment;
     Lanyards, energy absorbers, lifelines, or anchorage 
connectors as an integral connector; or
     A positioning or travel restraint system as an attachment 
element.
    ``Integral'' means the D-ring cannot be removed (e.g., sewn into 
the harness) from the body harness without using a special tool. The 
final rule is consistent with A10.32-2012, which defines ``integral'' 
to mean ``[n]ot removable from the component, subsystem or system 
without destroying or mutilating any element or without use of a 
special tool'' (Section 2.30).
    Although OSHA's existing fall protection standards do not define 
``D-ring,'' the final rule is consistent with Z359.0-2012 (Section 
2.41). The A10.32-2012 standard does not explicitly define ``D-ring,'' 
but the definition of ``connector'' includes D-ring as an example of an 
integral component of a body harness. The definition also says a D-ring 
is a connector sewn into a body harness or body belt (Section 2.18). 
OSHA did not receive any comments on the proposed definition and has 
adopts the definition with minor editorial revisions.
    Deceleration device, like in the proposed rule, is defined as any 
mechanism that serves to dissipate energy during a fall. The final rule 
is similar to the definition in OSHA's Powered Platforms, construction, 
and shipyard employment fall protection standards (Sec. Sec.  1910.66, 
appendix C, Section I(b); 1915.151(b); 1926.500(b)), and almost 
identical to the definition in A10.32-2012 (Section 2.19). The 
definition in those standards also provides examples of deceleration 
devices that employers may use to dissipate energy during a fall, 
including rope grabs, rip-stitch lanyards, specially woven lanyards, 
tearing or deforming lanyards, and automatic self-retracting lifelines 
or lanyards.
    Although the Z359.0 standard does not define ``deceleration 
device,'' it includes definitions for ``energy (shock) absorber,'' 
``fall arrester,'' and ``self-retracting lanyard'' (Sections 2.46, 
2.60, 2.159). In the Powered Platforms and construction fall protection 
rulemakings, commenters recommended replacing ``deceleration device'' 
with those terms. OSHA also received similar recommendations in this 
rulemaking (Exs. 121; 185; 198). For instance, ISEA (Ex.185) and CSG 
(Ex. 198) recommended defining ``fall arrester'' and ``energy 
absorber'' because they said ``deceleration device'' is not a commonly 
used term. Clear Channel Outdoor, Inc. (Ex. 121), also supported 
replacing ``deceleration device'' with the terms in Z359.0 ``to 
increase consistency.'' By contrast, Ameren said ``deceleration 
device'' was ``standard verbiage'' in OSHA fall protection standards, 
and removing the term was not necessary ``[a]s long as there is no 
confusion with the terms'' (Ex.189).
    OSHA agrees with Ameren that using the term ``deceleration device'' 
makes the final rule consistent with OSHA's other fall protection 
standards and would eliminate, rather than generate, confusion. In the 
preamble to the final construction fall protection standard, OSHA 
explained why the Agency was not adding definitions for ``fall 
arrester'' and ``energy absorber,'' stating:

    It was suggested that [deceleration device] be eliminated and 
replaced with three terms, ``fall arrester,'' ``energy absorber,'' 
and ``self-retracting lifeline/lanyard'' because the examples listed 
by OSHA in its proposed definition of deceleration device serve 
varying combinations of the function of these three suggested 
components. In particular, it was pointed out that a rope grab may 
or may not serve to dissipate a substantial amount of energy in and 
of itself. The distinction that the commenter was making was that 
some components of the system were ``fall arresters'' (purpose to 
stop a fall), others were ``energy absorbers'' (purpose to brake a 
fall more comfortably), and others were ``self-retracting lifeline/
lanyards'' (purpose to take slack out of the lifeline or lanyard to 
minimize free fall). OSHA notes, however, that it is difficult to 
clearly separate all components into these three suggested 
categories since fall arrest (stopping) and energy absorption 
(braking) are closely related. In addition, many self-retracting 
lifeline/lanyards serve all three functions very well (a condition 
which the commenter labels as a ``subsystem'' or ``hybrid 
component''). OSHA believes that the only practical way to 
accomplish what is suggested would be to have test methods and 
criteria for each of the three component functions. However, at this 
time, there are no national consensus standards or other accepted 
criteria for any of the three which OSHA could propose to adopt.
    In addition, OSHA's approach in the final standard is to address 
personal fall arrest equipment on a system basis. Therefore, OSHA 
does not have separate requirements for ``fall arresters,'' ``energy 
absorbers,'' and ``self-retracting lifeline/lanyards'' because it is 
the performance of the complete system, as assembled, which is 
regulated by the OSHA standard. OSHA's final standard does not 
preclude the voluntary standards writing bodies from developing 
design standards for all of the various components and is supportive 
of this undertaking (59 FR 40672 (8/9/1994) (citing 54 FR 31408, 
31446 (7/28/1989))).

    OSHA believes the preamble discussion in the earlier rulemakings 
holds true today and supports only including the definition of 
``deceleration device'' in the final rule. Accordingly, the final rule 
adopts the definition of ``deceleration device'' specified in the 
proposal.
    Deceleration distance. The final rule, like the proposal, defines 
``deceleration distance'' as the vertical distance a falling worker 
travels before stopping, that is, the distance from the point at which 
the deceleration device begins to operate to the stopping point, 
excluding lifeline elongation and free fall distance. The final rule 
also states that ``deceleration distance'' is the distance between the 
location of a worker's body harness attachment point at the moment of 
activation of the deceleration device during a fall (i.e., at the onset 
of fall arrest forces), and the location of that attachment point after 
the worker comes to a full stop.
    The definition in the final rule is almost identical to the 
definition in OSHA's Powered Platforms, construction, and shipyard 
employment fall protection standards (Sec. Sec.  1910.66, appendix C, 
Section I(b); 1915.151(b); 1926.500(b)), but does not reference body 
belts because the final rule prohibits the use of body belts in 
personal fall arrest systems. The final rule also is consistent with 
A10.32-2012 (Section 2.20) and with the definition and explanatory note 
in Z359.0-2012 (Section 2.40). OSHA did not receive any comments on the 
proposed definition of ``deceleration device'' and adopts the proposed 
definition.
    Equivalent. The final rule defines ``equivalent'' as alternative 
designs, equipment, materials, or methods that the employer can 
demonstrate will

[[Page 82648]]

provide an equal or greater degree of safety for workers compared to 
the designs, equipment, materials, or methods the final rule specifies. 
The definition in the final rule is essentially the same as the 
definition in OSHA's Powered Platforms, shipyard employment, and 
construction fall protection standards (Sec. Sec.  1910.66(d) and 
appendix C, Section I(b); 1915.151(b); 1926.500(b)). A crucial element 
of the definition is that the employer has the burden to demonstrate 
that the alternative means are at least as protective as the designs, 
materials, or methods the standard requires.
    Verallia (Ex. 171) commented that the proposed definition was ``too 
subjective and vague to allow for consistent application and/or 
enforcement.'' Verallia also said the proposal outlined the skill set 
necessary to be a ``qualified'' person, and that it should be 
sufficient if a qualified person selects the alternative designs, 
equipment, materials, or methods. OSHA disagrees with Verallia's 
characterization of the proposed definition. Since 1974, OSHA used the 
same definition of ``equivalent'' in various standards (e.g., 
Sec. Sec.  1910.21(g)(6); 1926.450(b)). Over this period, the Agency 
experienced no problems achieving consistent application of the 
definition, and employers did not report that the term is too vague. To 
the contrary, OSHA believes that employers support the definition of 
``equivalent'' because it gives them flexibility in complying with the 
final rule, provided that they can show that their selected methods, 
materials, or designs provide equal or greater level of safety for 
workers. Accordingly, the final rule adopts the proposed definition 
with only minor changes for clarity.
    Free fall, like in the proposed rule, is defined as the act of 
falling before the personal fall arrest system begins to apply force to 
arrest the fall. The final definition is almost the same as the 
definition in OSHA's Powered Platforms, construction, and shipyard 
employment fall protection standards (Sec. Sec.  1910.66, appendix C, 
Section I(b); 1915.151(b); 1926.500(b)). It also is identical to the 
definition in Z359.0-2012 (Section 2.73), and is consistent with the 
definition in A10.32-2012 (Section 2.26). OSHA did not receive any 
comments on the proposed definition and finalizes it as proposed.
    Free fall distance means the vertical displacement of the fall 
arrest attachment point on the worker's body harness between the onset 
of the fall and just before the system begins to apply force to arrest 
the fall. The distance excludes deceleration distance, lifeline and 
lanyard elongation, but includes any deceleration device slide distance 
or self-retracting lifeline/lanyard extension before the devices 
operate and fall arrest forces occur.
    The definition in the final rule is essentially the same as the 
definition in OSHA's Powered Platforms, construction, and shipyard 
employment fall protection standards (Sec. Sec.  1910.66 appendix C, 
Section I(b); 1915.151(b); 1926.500(b)). In addition, the final rule is 
consistent with the definition in Z359.0-2012 (Section 2.74) and 
A10.32-2012 (Section 2.27). OSHA did not receive any comments on the 
proposed definition.
    Lanyard, like in the proposed rule, is defined as a flexible line 
of rope, wire rope, or strap that generally has a connector at each end 
to connect a body harness or body belt to a deceleration device, 
lifeline, or anchorage. The definition in the final rule is almost 
identical to the Powered Platforms standard (Sec.  1910.66(b) and 
appendix C, Section I(b)), and consistent with the definition in OSHA's 
construction and shipyard employment fall protection standards 
(Sec. Sec.  1915.151(b) and 1926.500(b)). The definition in the final 
rule also is consistent with Z359.0-2012 (Section 2.94) and A10.32-2012 
(Section 2.31), although the definition in A10.32 does not include body 
belts. OSHA did not receive any comments on the proposed definition, 
and adopts the definition as proposed.
    Lifeline. The final rule, like the proposal, defines ``lifeline'' 
as a component of a personal fall protection system that connects other 
components of the system to the anchorage. A lifeline consists of a 
flexible line that either connects to an anchorage at one end to hang 
vertically (a vertical lifeline), or connects to anchorages at both 
ends to stretch horizontally (a horizontal lifeline).
    The final rule is consistent with the definition of lifeline in 
Z359.0-2012 (Section 2.96) and A10.32-2012 (Section 2.33), however, it 
differs slightly from OSHA's Powered Platforms, construction, and 
shipyard employment fall protection standards (Sec. Sec.  1910.66(b) 
and appendix C, Section I(b); 1915.151(b); 1926.500(b)). OSHA's 
existing standards only apply to personal fall arrest systems, and 
define ``lifeline'' as a component of such a system. The final 
definition specifies that a lifeline is a component of a personal fall 
protection system, which includes fall arrest, positioning, and travel 
restraint systems. The final definition also includes some minor 
editorial revisions. OSHA did not receive any comments on the proposed 
definition and adopts the definition as discussed.
    Personal fall arrest system, like the proposed rule, is defined as 
a system used to arrest a worker's fall from a walking-working surface. 
As the final rule specifies, a personal fall arrest system consists of 
a body harness, anchorage, and connector. The means of connecting the 
body harness and anchorage may be a lanyard, deceleration device, 
lifeline, or suitable combination of these means. In the final rule, 
OSHA fully details what the components of personal fall arrest systems 
include, specifically, the various means of connecting body harnesses 
and anchorages (i.e., lanyards, deceleration devices, lifelines, or a 
suitable combination of these means). OSHA believes that fully 
clarifying the components will help employers and workers better 
understand the personal fall arrest system requirements in the final 
rule.
    The definition in the final rule is consistent with OSHA's Powered 
Platforms, construction, and shipyard employment fall protection 
standards (Sec. Sec.  1910.66(b) and appendix C, Section I(b); 
1915.151(b); 1926.500(b)). Those OSHA standards, however, specify that 
a fall arrest system may consist of either a body harness or a body 
belt. Since the time OSHA promulgated those standards, the Agency 
phased out the use of body belts in personal fall arrest systems due to 
safety concerns. Effective January 1, 1998, OSHA banned the use of body 
belts as part of personal fall arrest systems in the construction and 
shipyard employment standards (Sec. Sec.  1926.502(d); 1915.159), and 
this final rule also prohibits their use in personal fall arrest 
systems.
    The final rule is consistent with Z359.0-2012 (Section 2.115) and 
A10.32-2012 (Section 2.38). The consensus standards, like the final 
rule and OSHA's existing standards, require the use of body harnesses 
in personal fall arrest systems, and prohibit body belts.
    Personal fall protection system, as defined in the final rule, 
means a system (including all components) that employers use to provide 
protection for employees from falling or to safely arrest a fall if one 
occurs. The final definition identifies examples of personal fall 
protection systems, including personal fall arrest systems, positioning 
systems, and travel restraint systems. Neither existing OSHA fall 
protection standards nor national consensus standards define personal 
fall protection system.
    Some commenters (Exs. 155; 185; 198) said that OSHA should not use

[[Page 82649]]

``personal fall protection system'' because employers could interpret 
the term to include passive devices such as guardrails. They suggested 
using only the term ``personal fall arrest system.'' In addition, Ellis 
Fall Safety Solutions (Ellis) (Ex. 155) recommended that the term 
``personal fall protection system'' only include systems that use body 
harnesses; in other words, limited to personal fall arrest systems.
    OSHA does not believe that employers will mistake the term 
``personal fall protection system'' to include passive fall protection 
devices such as guardrails and safety nets. The Z359.0-2012 standard 
includes two types of fall protection systems: Active and passive. 
Z359.0 defines ``active fall protection system'' as a fall protection 
system that requires workers ``to wear or use fall protection 
equipment'' (Section 2.2), and lists fall restraint, fall arrest, 
travel restriction, and administrative controls as examples. The Z359.0 
standard, however, defines ``passive fall protection system'' as one 
``that does not require the wearing or use of fall protection 
equipment,'' such as safety nets and guardrail systems (Section 2.113). 
Like the distinction that the Z359.0 standard draws between active and 
passive fall protection systems, OSHA believes that using the term 
``personal fall protection system'' establishes the same type of 
distinction. That is, a personal fall protection system is one that 
employers must ensure that workers actively use to protect them, while 
a passive fall protection system, such as a guardrail, is one that does 
not require any action by workers to be safe, so long as employers 
maintain the system properly. OSHA believes this distinction is 
helpful, and that the regulated community recognizes and understands 
the distinction. Therefore, the term is carried forward in the final 
rule.
    OSHA revised the final definition to expressly clarify the Agency's 
intent in the proposed rule that personal fall protection systems 
include all components of those systems.
    Positioning system (work-positioning system). The final rule, like 
the proposal, defines ``positioning system'' as 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 in the final rule is essentially the same as the 
definition in OSHA's construction and shipyard employment fall 
protection standards (Sec. Sec.  1915.151(b), 1926.500(b)). The final 
rule also is similar to A10.32-2012 (Section 2.39, 2.40) and Z359.0-
2012 (Section 2.120). Weatherguard Service, Inc. (Ex. 168) supported 
the proposed definition.
    A note to the definition in Z359.0 explains that ``a positioning 
system used alone does not constitute fall protection,'' and that a 
separate system that provides backup protection from a fall is 
necessary (Section E2.120). Ellis (Ex. 155), who also commented on 
OSHA's positioning system requirements, supported adding such a 
requirement to the final rule. OSHA did not incorporate this 
recommendation (see discussion in final paragraph (e) (positioning 
systems)). OSHA adopts the proposed definition with minor editorial 
changes.
    Qualified, like in the proposed rule, describes a person who, by 
possession of a recognized degree, certificate, or professional 
standing, or who by extensive knowledge, training,\76\ and experience 
has successfully demonstrated the ability to solve or resolve problems 
relating to the subject matter, work, or project. This definition is 
identical to the one in final Sec.  1910.21(b). The final definition is 
almost identical to the definition applicable to OSHA's construction 
standards (Sec.  1926.32(m)), and similar to the definition in the 
shipyard employment fall protection standard (Sec.  1915.151(b)). In 
addition, the definition in the final rule is consistent with the 
definition used in A10.32-2012 (Section 2.41).
---------------------------------------------------------------------------

    \76\ ``Training'' may include informal, or on-the-job, training.
---------------------------------------------------------------------------

    The final rule, however, differs from the definition in the Powered 
Platforms standard (Sec.  1910.66, appendix C, Section I(b)) and 
Z359.0-2012. Those standards require that qualified persons have a 
degree, certification, or professional standing, and 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).
    Several commenters opposed the proposed definition of ``qualified'' 
and supported the definition of qualified in Sec.  1910.66 and Z359.0 
(Exs. 155; 193; 367). They also recommended revising the definition to 
specifically require that only engineers could serve as qualified 
persons. For example, Ellis said:

    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).

Penta Engineering Group added:

    OSHA proposes to require that horizontal lifelines be designed, 
installed and used under the supervision of a qualified person and 
that they be part of a complete fall arrest system that maintains a 
factor of safety of two. To allow a person without an engineering 
degree and professional registration would not only be dangerous but 
would be contradictory to every current requirement for other 
building systems as required by the building codes. Further, in this 
specific instance, the design of a horizontal lifeline presents 
specific engineering challenges that should not be performed by 
anyone without the professional standing and experience to do so 
(Ex. 193).

Thomas Kramer of LJB, Inc., agreed, stating:

    We take exception with the change from ``AND'' to ``OR.'' A 
person with a structural engineering degree does not necessarily 
know the full requirements (clearances, proper PPE selection, use 
and rescue procedures, etc.) of a personal fall arrest system. That 
knowledge can be obtained only through special training or 
experience in the subject matter. Vice versa, someone with knowledge 
of the system requirements may not know how to properly design an 
anchorage support and can only gain this knowledge through a 
professional degree. As stated in our previous comments, many 
building codes only allow a professional engineer to design and 
stamp a building design or changes to the loading of a structure. 
The explanation to make 1910 consistent with the existing 
construction and shipyard employment standard is not a good enough 
reason in our opinion. OSHA states that personal fall protection 
systems will ``in some cases, [may] involve their design and use.'' 
By using the word ``OR,'' the proposed regulation eliminates the 
need for an engineer's involvement. The ANSI/ASSE Z359.0-2007 
standard uses ``AND''. These consensus standards are developed with 
a considerable level of thought and consideration and were recently 
vetted by the industry, so we suggest OSHA reconsider this change 
(Ex. 367).

OSHA did not adopt the commenters' recommendations for several reasons. 
First, as discussed in the proposed rule, OSHA based the definition of 
``qualified'' on the definitions in its construction and shipyard 
employment fall protection standards (Sec. Sec.  1915.151(b); 
1926.500(b)). For years, those definitions have been effective because 
they specify that employers must ensure the design, installation, and

[[Page 82650]]

use of components of personal fall protection systems (such as 
lifelines) protect workers from falls. Adopting the same definition as 
OSHA's other fall protection standards and final Sec.  1910.21(b) also 
ensures consistency, which OSHA believes will increase both employer 
understanding and compliance with the requirement.
    Second, the Agency believes the performance-based definition in the 
final rule gives employers flexibility in selecting a qualified person 
who will be effective in performing the required functions. The 
performance-based definition also allows employers to select the 
qualified person who will be the best fit for the particular job and 
work conditions. Employers are free to use qualified persons who have 
professional credentials and extensive knowledge, training, and 
experience, and OSHA believes many employers already do so.
    Finally, the workers the employer designates or selects as 
qualified persons, the most important aspect of their qualifications is 
that they must have ``demonstrated ability'' to solve or resolve 
problems relating to the subject matter, work, and project. Having both 
professional credentials and knowledge, training, and experience will 
not protect workers effectively if the person has not demonstrated 
capability to perform the required functions and solve or resolve the 
problems in question.
    When the person the employer designates as a qualified person has 
demonstrated the ability to solve or resolve problems, which may 
include performing various complex calculations to ensure systems and 
components meet required criteria, the qualifications of that person 
are adequate. OSHA also notes that an employer may need to select 
different qualified persons for different projects, subject matter, or 
work to ensure the person's professional credentials or training, 
experience, and knowledge are sufficient to solve or resolve the 
problems associated with the subject matter, work, or project. For 
example, the employer may determine that an engineer is needed for a 
particular project, and the final rule provides the employer with that 
flexibility. Accordingly, OSHA adopts the definition of qualified as 
proposed.
    OSHA disagrees with Ellis' assertion that architects and engineers 
are not designing anchorages into drawings because, according to Ellis, 
Sec.  1910.140 does not require qualified persons to be engineers. OSHA 
believes that building owners and others work with engineers and 
architects in the planning stage to design anchorage points into 
buildings and structures so that the anchorages will effectively 
support personal fall protection systems used to perform work on the 
building. OSHA also believes that the number of building owners 
consulting engineers about the design of anchorages will increase under 
the final rule. Section 1910.27 of the final rule requires that, when 
employers use rope descent systems (RDS), building owners must provide 
information to employers and contractors ensuring that a qualified 
person certify building anchorages as being capable of supporting at 
least 5,000 pounds (29 CFR 1910.27(b)(1)). OSHA believes that building 
owners will likely consult and work with engineers to ensure that all 
building anchorages, including anchorages that support RDS and personal 
fall protection systems, meet the requirements in Sec.  1910.27. Thus, 
OSHA does not believe it is necessary to limit the definition of 
``qualified'' person to engineers to ensure that building owners 
include building anchors in building design plans.
    Rope grab, like the proposed rule, is defined as a deceleration 
device that travels on a lifeline and automatically, using friction, 
engages the lifeline and locks to arrest a worker's fall. A rope grab 
usually employs the principle of inertial locking, cam or lever 
locking, or both.
    The final rule is essentially the same as the definition in OSHA's 
Powered Platforms, construction, and shipyard employment fall 
protection standards (Sec. Sec.  1910.66, appendix C, Section I(b); 
1915.151(b); 1926.500(b)). The A10.32 and Z359.0-2012 standards do not 
define ``rope grab,'' but the definition of ``fall arrester'' in Z359.0 
(Section 2.60) is similar to the definition in this final rule. In 
addition, the explanatory note to the ``fall arrester'' definition 
identifies a ``rope grab'' as an example of a fall arrester. The 
A10.32-2012 standard requires rope grabs to automatically lock (Section 
5.4.3). OSHA did not receive any comments on the proposed definition of 
``rope grab,'' and the final rule adopts it as proposed.
    Safety factor. The final rule adds a definition for safety factor, 
also called a factor of safety. OSHA defines safety factor as the ratio 
of the design load and ultimate strength of the material. Generally, 
the term refers to the structural capacity of a member, material, 
equipment, or system beyond actual or reasonably anticipated loads; 
that is, how much stronger the member, material, equipment, or system 
is than it usually needs to be to support the intended load without 
breaking or failing. A safety factor is an additional or extra margin 
of safety that provides assurance the system or equipment is able to 
support the intended load (e.g., a safety factor of two).
    The new definition is the same as the one proposed in subpart D and 
is consistent with the one in Sec.  1926.32(n). OSHA believes that 
adding this term will increase employer understanding and compliance 
with the requirements in this section.
    Self-retracting lifeline/lanyard (SRL) is also a type of 
deceleration device. The final rule, like the proposal, defines an SRL 
as containing a drum-wound line that a worker can slowly extract from, 
or retract onto, a drum under slight tension during normal movement. At 
the onset of a fall, the device automatically locks the drum and 
arrests the fall.
    The definition in the final rule is consistent with OSHA's Powered 
Platforms and construction fall protection standards (Sec. Sec.  
1910.66, appendix C, Section I(b); 1926.500(b)) and with Z359.0-2012 
(Section 2.159) and A10.32-2012 (Section 2.46). There were no comments 
on the proposed definition, and the final rule adopts it as proposed.
    Snaphook. The final rule, like the proposal, defines ``snaphook'' 
as a connector comprised of a hook-shaped body with a normally closed 
gate, or a similar arrangement, that the user may open manually to 
permit the hook to receive an object. When the user releases a 
snaphook, it automatically closes to retain the object. Opening a 
snaphook requires two separate actions, meaning the user must squeeze 
the lever on the back before engaging the front gate.
    The final definition, like the proposal, identifies two general 
types of snaphooks--an automatic-locking type (also called self-locking 
or double locking), which the final rule permits employers to use, and 
a non-locking type, which the final rule prohibits. An automatic-
locking type snaphook has a self-closing and self-locking gate that 
remains closed and locked until intentionally unlocked and opened for 
connection or disconnection. By contrast, a non-locking type has a 
self-closing gate that remains closed, but not locked until the user 
intentionally opens it for connection or disconnection (see discussion 
of Sec.  1910.140(c)(9)).
    The definition in the final rule is the same as the definition in 
OSHA's Powered Platforms and construction fall protection standards 
(Sec. Sec.  1910.66, appendix C, Section I(b); 1926.500(b)). It also is 
consistent with Z359.0-2012 (Section 2.168) and A10.32-2012 (Sections 
2.50, 2.50.1, 2.50.2). OSHA

[[Page 82651]]

received two comments on the snaphook definition, from CSG (Ex. 198) 
and ISEA (Ex. 185), both of which supported the proposed definition. 
OSHA adopts the definition as proposed.
    Travel restraint (tether) line is a component of a travel restraint 
system. Specifically, the final rule, like the proposal, defines it as 
a rope or wire rope used to transfer forces from a body support to an 
anchorage or anchorage connector in a travel restraint system. The 
purpose of a travel restraint (tether) line is to secure workers in 
such a way as to prevent them from reaching an unprotected edge and 
falling off the elevated surface on which they are working.
    The definition in the final rule is the same as the definition in 
OSHA's shipyard employment fall protection standard (Sec.  
1915.151(b)). The definition in Sec.  1915.151(b) notes that 
manufacturers do not necessarily design travel restraint lines to 
withstand forces resulting from a fall. OSHA did not receive any 
comments on the proposed definition, and the final rule adopts the 
definition as proposed.
    Travel restraint system is a type of personal fall protection 
system that consists of a combination of an anchorage, 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. The final rule revises the 
proposed definition in two ways. First, the final rule defines ``travel 
restraint system'' to specify that it is a system a worker uses to 
eliminate the possibility of falling from the unprotected edge of an 
elevated walking-working surface. The proposed definition said the 
purpose of travel restraint systems was to ``limit travel to prevent 
exposure to a fall hazard.'' OSHA believes the final definition more 
clearly explains the ultimate purpose of travel restraint systems than 
the proposed definition.
    Second, the final definition deletes the second sentence of the 
proposed definition, which stated that a travel restraint system ``is 
used such that it does not support any portion of the worker's weight; 
otherwise the system would be a positioning system or personal fall 
arrest system.'' OSHA believes the revised language in the final 
definition is sufficient to convey this requirement. In addition, OSHA 
addresses this issue in the discussion of Sec.  1910.140(c)(14) below.
    The definition in the final rule is consistent with the definition 
in Z359.0-2012 (Section 2.204) and A10.32-2012 (Sections 2.53). The 
definition in A10.32 stresses that the purpose of a travel restraint 
system is to limit travel in such a manner that the user is not exposed 
to a fall hazard. OSHA did not receive comments on the proposed 
definition and finalizes the definition as discussed.
    Window cleaner's belt, as defined in the final rule, is a component 
of a window cleaner's positioning system. It is a positioning belt that 
consists of a waist belt, an integral terminal runner or strap, and 
belt terminals.
    The final rule revises the proposed definition to explicitly 
clarify that a window cleaner's belt is a component of a window 
cleaner's positioning system, and thus is designed to support the 
window cleaner on an elevated vertical surface. OSHA notes that a 
window cleaner's belt differs from a window cleaner's tool belt, which 
holds the window cleaner's tools and materials used for performing the 
job. Employers use the tool belt mainly for convenience of the window 
cleaner and not as safety equipment. The only commenter on the proposed 
definition, Weatherguard (Ex. 168), supported the proposed definition. 
Accordingly, the final rule adopts the definition with the revision 
discussed above.
    Window cleaner's belt anchor (window anchor), as defined in the 
final rule, is a specifically designed fall-preventing attachment point 
permanently affixed to a window frame or a part of a building 
immediately adjacent to the window frame, for direct attachment of the 
terminal portion of a window cleaner's belt. Workers attach the 
terminals of the window cleaner's belt to the window anchors to prevent 
falling while cleaning windows.
    OSHA based the final definition on the one in I-14.1-2001 (Section 
2). OSHA's existing fall protection standards do not specifically 
address window cleaning operations, and do not define terms related to 
those operations. Weatherguard (Ex. 168), the only commenter, supported 
including the definition in the final rule. The final rule adopts the 
definition as proposed.
    Window cleaner's positioning system, as defined in the final rule, 
is a system that consists of a window cleaner's belt secured to window 
anchors. The definition is similar to the general definition of 
positioning system in the final rule. Weatherguard (Ex. 168), the only 
commenter, supported the proposed definition and the definition is 
adopted as proposed.
Paragraph (c)--General Requirements
    Paragraph (c) of the final rule specifies the general requirements 
employers must ensure that each personal fall protection system meets. 
The general requirements in paragraph (c) are criteria for the common 
components of personal fall protection systems, such as connectors, 
anchorages, lanyards and body harnesses. Paragraphs (d) and (e) contain 
additional requirements for personal fall arrest systems and 
positioning systems, respectively.
    The provisions in final paragraph (c) are drawn from or based on 
requirements in OSHA's personal fall protection standards, including 
Powered Platforms (Sec.  1910.66, appendix C), construction (Sec.  
1926.502), and shipyard employment (Sec.  1915.160). They also are 
drawn from national consensus standards addressing fall protection, 
including Z359.1-2007, Z359.3-2007, A10.32-2012, and I-14.1-2001.
    Paragraph (c)(1) of the final rule requires that employers ensure 
connectors used in personal fall protection systems are made of drop-
forged, pressed or formed steel, or equivalent material. Final 
paragraph (c)(2) requires connectors to have corrosion-resistant 
finishes, as well as smooth surfaces and edges to prevent damage to 
interfacing parts of the personal fall protection system.
    The requirements in paragraphs (c)(1) and (2) will ensure that 
connectors retain the necessary strength characteristics for the life 
of the fall protection system under expected conditions of use, and 
that the surfaces and edges do not cause damage to the belts or 
lanyards attached to them. Employers must not allow workers to use 
personal fall protection equipment if wear and tear reaches the point 
where equipment performance might be compromised. For example, corroded 
or rough surfaces can cause wear and tear on connectors and other 
components of personal fall protection system, which may reduce their 
strength.
    Final paragraphs (c)(1) and (2) are consistent with OSHA's other 
fall protection standards, including Powered Platforms (Sec.  1910.66, 
appendix C, section I, paragraphs (c)(1) and (c)(2)); construction 
(Sec.  1926.502(d)(1), (d)(3), and (e)(4)); and shipyard employment 
(Sec.  1915.159(a)(1) and (2)). The Z359.1-2007 standard also contains 
similar requirements. There were no comments on the proposed provisions 
and OSHA adopts them without substantive change.
    When employers use vertical lifelines, paragraph (c)(3) of the 
final rule requires that employers ensure each worker is attached to a 
separate lifeline. OSHA believes that allowing more than one

[[Page 82652]]

worker on the same vertical lifeline would create additional hazards. 
For example, if one worker falls, another attached worker might be 
pulled off balance and also fall. The final rule is consistent with 
OSHA's other fall protection standards (Sec. Sec.  1910.66, appendix C, 
section I, paragraphs (c)(3) and (e)(5); 1926.502(d)(10); 
1915.159(b)(1)). There were no comments on the proposed provision and 
it is adopted with only minor editorial changes.
    Paragraphs (c)(4) and (5) of the final rule set minimum strength 
requirements for lanyards and lifelines used with personal fall 
protection systems. Paragraph (c)(4) requires that employers ensure 
lanyards and vertical lifelines have a minimum breaking strength of 
5,000 pounds. Breaking strength refers to the point at which a lanyard 
or vertical lifeline will break because of the stress placed on it.
    The final rule requires the same strength requirements for vertical 
lifelines and lanyards as OSHA's other fall protection standards 
(Sec. Sec.  1910.66, appendix C, section I, paragraphs (c)(4); 
1926.502(d)(9); 1915.159(b)(3)). The strength requirement also is the 
same as Z359.1-2007. OSHA believes the strength requirements in all of 
these standards provide an adequate level of safety. (OSHA notes that 
the final rule also requires that travel restraint (tether) lines be 
capable of supporting a minimum tensile load of 5,000 pounds (see 
discussion of paragraph (c)(14)).
    The lanyards and vertical lifelines requirement in paragraph (c)(4) 
also includes self-retracting lifelines/lanyards (SRL) that allow free 
falls of more than 2 feet, as well as ripstitch, tearing and deforming 
lanyards. The proposed rule addressed those lifelines and lanyards in 
paragraph (c)(6); however, that paragraph duplicated paragraph (c)(4), 
and OSHA removed it from the final rule. Proposed paragraph (c)(4) also 
included a note, which OSHA re-designated as paragraph (c)(6) of the 
final rule (see discussion of Sec.  1910.140(c)(6)).
    Paragraph (c)(5) of the final rule, like the proposed rule, 
provides an exception to the 5,000-pound strength requirement for SRL 
that automatically limit free fall distance to 2 feet or less. The 
final provision allows a lower strength requirement because the fall 
arrest forces are less when free falls are limited to 2 feet. These 
lifelines and lanyards must have components capable of sustaining a 
minimum tensile load of 3,000 pounds applied to the device with the 
lifeline or lanyard in the fully extended position. Tensile load means 
a force that attempts to pull apart or stretch an object, while tensile 
strength means the ability of an object or material to resist forces 
that attempt to pull apart or stretch the object or material.
    Final paragraph (c)(5) is the same as OSHA's other fall protection 
standards (Sec. Sec.  1910.66, appendix C, section I, paragraphs 
(c)(5); 1926.502(d)(13); 1915.159(b)(4)) and Z359.1-2007 (Section 
3.2.8.7) and A10.32-2012 (Section 5.3.1). OSHA received comments on the 
proposed strength requirements in paragraphs (c)(4) and (5). As far 
back as the 1990 proposal, one commenter said that the strength 
requirements for lanyards and vertical lifelines were too high and 
would be difficult to maintain (75 FR 28907). OSHA acknowledged in the 
proposed rule that wear and deterioration to personal fall protection 
systems inevitably would occur from normal use of lanyards and 
lifelines, and that ultraviolet radiation, water, and dirt also can 
reduce the strength of lanyards and lifelines.
    That said, OSHA believes that employers are able to purchase and 
maintain personal fall protection system and components that 
consistently meet the strength requirements in the final rule. These 
strength requirements have been in place for many years, and virtually 
all personal fall protection systems manufactured in or for use in the 
United States meet the requirements in paragraphs (c)(4) and (5). Since 
1990, OSHA has not received any information indicating that the 
strength requirements should not be maintained. However, to ensure that 
lifelines and lanyards continue to comply with the requirements in 
paragraph (c)(5), paragraph (c)(18) of the final rule requires that 
employers inspect personal fall protection systems before each use and 
immediately remove worn or deteriorated systems and components from 
service. In addition, Sec.  1910.132(a) requires that employers 
maintain personal protective equipment in reliable condition.
    ISEA and CSG commented on the orientation of SRL with regard to 
lanyard and lifeline strength requirements. ISEA said:

[T]he horizontal or vertical orientation of a [self-retracting 
lanyard] is important because SRL used in a generally horizontal 
orientation rather than overhead may be subject to higher loadings 
and greater exposure to sharp or abrasive surfaces. Because the 
devices are typically anchored at waist height or below, free fall 
potential is greater (Ex. 185).

CSG agreed, adding that the higher loading of SRL used in horizontal 
positions reinforced the need for additional training considerations 
for horizontally oriented SRL (Ex. 198). Both CSG and ISEA added that 
manufacturers generally include extra provisions for absorbing energy 
and protecting the lifeline from damage from building edges if the SRL 
will be used in a horizontal position. OSHA agrees that employers and 
competent persons should consider the horizontal or vertical 
orientation of a SRL in selecting and inspecting personal fall 
protection systems and training workers (Sec.  1910.30). OSHA notes 
that appendix C to Sec.  1910.140 addresses the commenters' points so 
employers will be aware of the issue. OSHA also notes that paragraph 
(c)(11) of the final rule sets specific requirements when using 
horizontal lifelines. Neither commenter suggested that OSHA change the 
language of paragraph (c)(4) or (5). Accordingly, OSHA believes it is 
not necessary to revise either paragraph in the final rule.
    Proposed paragraph (c)(6) also included a provision to establish 
strength requirements for SRL that do not limit free fall distance to 
not more than 2 feet, as well as for ripstitch, tearing, and deforming 
lanyards. OSHA proposed to require those types of lanyards and 
lifelines also be capable of sustaining minimum tensile loads of 5,000 
pounds applied to the device when the lifeline or lanyard is in a fully 
extended position. The proposed provision was identical to requirements 
in OSHA's Powered Platforms (Sec.  1910.66, appendix C, Section I, 
paragraph (c)(5)), shipyard employment (Sec.  1915.159(b)(4)), and 
construction (Sec.  1926.502(d)(13)) fall protection standards. 
However, Z359.1-2007 and A10.32-2012 do not have a separate provision 
addressing self-retracting lifelines/lanyards that do not limit free 
fall distances.
    OSHA requested comment on whether proposed paragraph (c)(6) was 
necessary, or whether paragraph (c)(4) of the final rule adequately 
addressed the issue (75 FR 28907). The Society of Professional Rope 
Access Technicians (SPRAT) said it would be acceptable to adopt either 
proposed provisions (c)(4) through (6) or the requirements in Z359.1 
(Ex. 205). However, ISEA and CSG said proposed paragraph (c)(6) was not 
necessary, and, if OSHA retained the provision in the final rule, the 
Agency should remove SRL from it (Exs. 185; 198). OSHA believes that 
paragraph (c)(4) adequately addresses the issue of SRL that do not 
limit the free fall to a maximum of 2 feet plus ripstitch, tearing, and 
deforming lanyards; therefore, proposed paragraph (c)(6) is not 
necessary. Accordingly, OSHA

[[Page 82653]]

deleted proposed paragraph (c)(6) from the final rule.
    In final paragraph (c)(6), OSHA replaces proposed paragraph (c)(6) 
with the requirement that a competent or qualified person must inspect 
each knot in lanyards and vertical lifelines, before a worker uses the 
lanyard or lifeline, to ensure that they still meet the minimum 
strength requirements in paragraphs (c)(4) and (5). This new 
requirement is based on the note OSHA included in proposed paragraph 
(c)(4) warning employers that the use of knots ``may significantly 
reduce the breaking strength'' of lanyards and vertical lifelines. The 
debate about whether knots should be permitted in lanyards and 
lifelines has been ongoing for at least 20 years. Although the proposal 
did not ban the use of knots, the Agency considered it, noting that 
Z359.1-2007 prohibits them: ``No knots shall be tied in lanyards, 
lifelines, or anchorage connectors. Sliding-hitch knots shall not be 
used in lieu of fall arresters'' (Section 7.2.1). The A10.32-2012 
standard also prohibits the use of knots in lifelines, lanyards or 
other direct-impact components and also prohibits knots used for load-
bearing end terminations (Sections 4.5.4 and 5.5.1.3).
    As far back as the 1990 proposal, OSHA received comments supporting 
and opposing the use of knots. In the preamble to that proposed rule, 
OSHA said available information indicated that knots could be used 
safely in some circumstances, and that employers should be allowed the 
flexibility to use them as long as they verify that the strength 
requirements of the rule continue to be met. OSHA also noted that 
strength reduction can be a concern because the use of knots in 
lanyards and vertical lifelines can reduce breaking strength (75 FR 
28907).
    In this proposed rule, OSHA invited comment on whether the Agency 
should allow or prohibit the use of knots, or require a competent 
person to inspect all knots (75 FR 28907). Several commenters said OSHA 
should prohibit knots in personal fall arrest systems, noting they 
generally are no longer used in modern fall arrest applications (Exs. 
185; 198; 251). Other commenters, including Martin's Window Cleaning 
Corp. (Martin's) (Ex. 222) and SPRAT (Ex. 205), opposed a prohibition 
on the use of knots. Martin's said, ``A properly tied knot is much 
stronger than a swedge or splice,'' which the proposed rule did not 
prohibit (Ex. 222). SPRAT said appropriately tied knots were useful at 
the end and throughout rope spans, and cited Cordage Institute data 
indicating knots commonly used in life-safety systems had an efficiency 
range of 75-90 percent (Ex. 205). SPRAT also said their employers 
require that competent persons inspect all knots tied in industrial 
rope access systems. They added that the rule must require that workers 
be trained in uses, limitations, and proper inspection techniques of 
knots and hitches.
    At the hearing on the proposed rule, the American Wind Energy 
Association (AWEA) also opposed banning the use of knots. Grayling 
Vander Velde, an AWEA member, said, ``Knots are widely used in 
industrial rope access for competent persons trained and certified in 
their proper use and limitations,'' and ``line failure due to 
installation of knots has not shown to be the cause of mainline or 
backup line failures'' (Ex. 329 (1/21/2011, pgs. 19-20)). He stated 
that ropes used for fall arrest must meet the 5,000-pound minimum 
strength requirement in the final rule. Also, he noted that SPRAT's 
training covers the issue of possible strength reduction in knotted 
lanyards.
    After considering the record as a whole, OSHA continues to believe 
that knots can be used safely in certain situations, and that the 
worker making the knot must be adequately trained to know the strength 
of the rope being used and take into consideration any strength 
reduction that may occur if a knot is used. As the commenters pointed 
out, any rope that has a knot must still meet the strength requirements 
in final paragraphs (c)(4) and (5) to ensure that workers have an 
appropriate level of safety (Ex. 205). To ensure that lanyards and 
vertical lifelines that have knots are safe, OSHA added a new 
requirement in paragraph (c)(6) of the final rule specifying that a 
competent or a qualified person must inspect each knot to ensure that 
it meets the minimum strength requirements before any worker uses the 
lanyard or lifeline. OSHA believes the additional requirement will 
preserve employer flexibility while providing an adequate level of 
safety.
    Paragraphs (c)(7) through (10) of the final rule establish criteria 
for D-rings, snaphooks, and carabiners, which are devices used to 
connect or couple together components of personal fall protection 
systems. OSHA added ``carabiners'' to these final paragraphs because 
they are a type of connector commonly used in currently-manufactured 
personal fall protection systems. Paragraph (c)(7) of the final rule 
requires that D-rings, snaphooks, and carabiners be capable of 
sustaining a minimum tensile load of 5,000 pounds. OSHA believes these 
devices, like lanyards and vertical lifelines, must be able to sustain 
5,000-pound loads to ensure worker safety. If the connectors cannot 
sustain the minimum tensile load, it makes no difference what strength 
requirements the other components of the system can meet because the 
system may still fail.
    Final paragraph (c)(7) is the same as the strength requirements in 
OSHA's other fall protection standards (Sec. Sec.  1910.66, appendix C, 
Section I, paragraph (d)(6); 1915.159(a)(3); 1926.502(d)(3)). OSHA did 
not receive any comments on the proposed provision and is adopting it 
as discussed.
    Paragraph (c)(8) of the final rule requires that D-rings, 
snaphooks, and carabiners be proof tested to a minimum tensile load of 
3,600 pounds without cracking, breaking, or incurring permanent 
deformation. OSHA also added a new requirement to final paragraph 
(c)(8) specifying that the gate strength of snaphooks and carabiners 
also must be proof tested to 3,600 pounds in all directions. Since 
proof testing has been the industry standard since 2007 (Z359.1-2007, 
Section 3.2.1.7), OSHA believes that connectors of this type already in 
use meet the requirements of paragraph (c)(8) and no grandfathering is 
necessary.
    The 3,600-pound strength requirement ensures that D-rings, 
snaphooks, and carabiners meet a safety factor of at least two when 
used with body harnesses. This strength requirement will, in turn, 
limit maximum fall arrest forces to 1,800 pounds. Final paragraph 
(c)(8) is similar to requirements in OSHA's Powered Platform, 
construction, and shipyard employment fall protection standards 
(Sec. Sec.  1910.66, appendix C, Section 1, paragraph (c)(7); 
1915.159(a)(4); 1926.502(d)(4)), but those standards do not require 
proof testing gate strength. The Z359.12-2009 standard is the same as 
proposed paragraph (c)(8).
    A number of commenters supported the proposed requirement (Exs. 
155; 185; 198). Several commenters also recommended that OSHA include 
two additions to the proposed requirement: (1) Proof testing the gate 
strength of carabiners and snaphooks; and (2) proof testing the gate 
strength in all directions (Exs. 155; 185; 198). ISEA and CSG said that 
past interpretations of snaphook strength requirements led to 
confusion, and that including a gate strength requirement would help to 
clarify this issue (Exs. 185; 198).
    Ellis said adding a requirement that the gate strength of snaphooks 
and carabiners also be proof tested to 3,600 pounds would make 
paragraph (c)(8) consistent with the Z359.12-2009 standard, and be more 
protective than

[[Page 82654]]

the A10.32-2004 standard, which prescribes a lower gate strength (Ex. 
155). Ellis noted that including the recommended additions also would 
help employers ``avoid incidents from bent hook gates to loose gate 
fly-by to jamming open scenarios that have plagued the industry for 
decades when the strength is 220 lbs/350 lbs as in the A10.32-2004'' 
(Ex. 155). OSHA agrees that the addition will provide greater 
protection for workers.
    Ellis also recommended that OSHA require proof testing snaphook and 
carabiner gate strength ``in all directions'' (Ex. 155). The purpose of 
proof testing gate strength in all directions is to ensure that no 
matter in which direction the pressure is applied, the connector gate 
will not fail. Such proof testing will provide greater protection for 
workers, therefore, OSHA added the requirement to proof test the gate 
strength of snaphooks and carabiners in all directions. Since this 
testing has been industry practice for several years (see Z359.1-2007, 
Section 3.2.1.7), OSHA does not believe that employers will have 
difficulty complying with the new requirement in paragraph (c)(8).
    Paragraph (c)(9) of the final rule requires employers to use 
automatic locking snaphooks and carabiners in personal fall protection 
systems. Automatic locking snaphooks and carabiners require at least 
two separate, consecutive actions to open, which reduce the danger of 
``rollout'' (i.e., inadvertent opening and disconnecting of 
components). Non-locking snaphooks are prohibited in a personal fall 
protection system.
    Final paragraph (c)(9) is consistent with OSHA's shipyard 
employment and construction fall protection standards (Sec. Sec.  
1915.159(a)(5); 1926.502(d)(5)). In addition, Z359.12-2009 (Section 
3.1.1.3) and A10.32-2012 (Sections 2.12 and 2.50.1) both require the 
use of locking snaphooks and carabiners for personal fall protection 
systems.
    In the proposed rule, OSHA explained that as far back as the 1990 
proposed rule, commenters expressed widespread support for prohibiting 
non-locking snaphooks (75 FR 28908). In OSHA's rulemaking on fall 
protection in the construction industry, several commenters said the 
rule should mandate the use of locking snaphooks, citing the rollout 
problems experienced with non-locking (single-action) snaphooks (59 FR 
40672, 40705 (8/9/1994)). Those commenters also provided information 
indicating that locking snaphooks are superior to non-locking snaphooks 
in minimizing rollout. Based on that and other information in that 
rulemaking record, OSHA determined that it was necessary to require the 
use of locking snaphooks in personal fall protection systems used in 
the construction industry, finding that ``in general, locking snaphooks 
provide a higher level of protection to workers than the single-action 
(non-locking) type of snaphooks'' (59 FR 40705).
    Likewise, OSHA has determined that locking snaphooks and carabiners 
are necessary to protect employees in general industry. In the proposed 
rule, OSHA asked for comment on whether the requirement should be 
phased in, but received no comment on the issue. OSHA does not believe 
it is necessary to provide a phase-in period, because the construction 
rule has been in place since 1998. Accordingly, OSHA believes that 
manufacturers currently are making personal fall protection systems 
available with automatic locking snaphooks and carabiners, and most 
employers already are using snaphooks and carabiners that comply with 
the final rule.
    Paragraph (c)(10) of the final rule prohibits employers from using 
snaphooks or carabiners for certain connections unless they are 
designed for that connection. Accordingly, the final rule specifies 
that employers may connect snaphooks or carabiners to the following 
objects only if the snaphooks and carabiners are designed to be 
connected:
     Directly to webbing, rope, or wire rope;
     To each other;
     To a D-ring to which another snaphook, carabiner, or 
connector is attached;
     To a horizontal lifeline; or
     To any object that is incompatibly shaped or dimensioned 
in relation to the snaphook or carabiner such that unintentional 
disengagement could occur when the connected object depresses the 
snaphook or carabiner gate and allows the components to separate.
    Final paragraph (c)(10) is the same as OSHA's construction and 
shipyard employment fall protection standards (Sec. Sec.  1915.159 
(a)(6); 1926.502(d)(6)). The Powered Platforms standard addresses the 
connection compatibility issue a little differently than this final 
rule, requiring that snaphooks ``be sized to be compatible with the 
member to which they are connected so as to prevent unintentional 
disengagement'' of the snaphook (Sec.  1910.66, appendix C, Section I, 
paragraph (d)(8)). Similarly, the Z359.1-2007 standard requires: 
``Snaphooks and carabiners shall be compatibly matched to their 
associated connectors to reduce the possibility of rollout . . . 
Snaphooks and carabiners shall not be connected to each other'' 
(Section 7.2.2.). Explanatory notes accompanying this provision state 
that multiple connections (e.g., two snaphooks, snaphook and webbing) 
into a single ring are not recommended (Section E7.2.2).
    OSHA believes that the final rule will help to reduce the potential 
of rollout. Certain connections, such as ones that are incompatibly 
sized or dimensioned, increase the likelihood of rollout, and OSHA 
believes the provision is needed to provide adequate assurance of 
worker safety. Accordingly, OSHA adopts the proposed provision, with 
the addition of ``carabiners,'' a commonly used connector.
    In paragraph (c)(11) of the final rule, like the proposal, OSHA 
establishes two requirements for horizontal lifelines. The provision 
specifies that employers must ensure horizontal lifelines are: (1) 
Designed, installed, and used under the supervision of a qualified 
person (paragraph (c)(11)(i)); and (2) are part of a complete personal 
fall arrest system that maintains a safety factor of at least two 
(paragraph (c)(11)(ii)).
    Paragraph (c)(11) is the same as OSHA's Powered Platforms (Sec.  
1910.66, appendix C, Section I(c)(9)) and construction fall protection 
standards (Sec.  1926.502(d)(8)). In addition, A10.32-2012 contains 
similar requirements (Section 4.4). Although Z359.1-2007 does not 
address horizontal lifelines specifically, it provides: ``A PFAS 
[personal fall arrest system] which incorporates a horizontal lifeline 
(outside the scope of this standard) shall be evaluated in accordance 
with acceptable engineering practice to determine that such system will 
perform as intended'' (Section 3.1.4).
    OSHA believes the requirements in paragraph (c)(11) are necessary 
because horizontal lifelines present unique safety issues. For example, 
horizontal lifelines may be subject to greater impact loads than the 
loads imposed by other attached components. Horizontal lifelines also 
result in potentially greater fall distances than some other fall 
protection devices. Even a few additional feet of free fall can 
increase fall arrest forces significantly, possibly to the point of 
exceeding the strength of the system. In addition, forces applied in a 
perpendicular direction to a horizontal lifeline create much larger 
forces at the anchorages. The potential for increased fall arrest 
forces and impact loads associated with horizontal lifelines explains 
the need for employers to ensure that personal fall arrest systems used 
with horizontal lifelines maintain a safety factor of at

[[Page 82655]]

least two. (See discussion of horizontal lifelines in appendix C to 
Sec.  1910.140, section (j).)
    OSHA received one comment on the proposed provision. Ellis said 
OSHA should require that horizontal lifelines be positioned overhead 
when the personal fall arrest system is made ready for use because of 
increased forces when the line is at waist level. He added, ``Due to 
stretch the fall factor increases fall distance when the line is below 
shoulder height'' (Ex. 155). OSHA recognizes that using horizontal 
lifelines at waist level may be unavoidable in some circumstances. 
Requiring that a qualified persons design, install, and supervise the 
use of horizontal lifelines with personal fall arrest systems helps to 
ensure that issues such as the positioning of horizontal lifelines will 
be properly considered and resolved before the personal fall arrest 
system is used.
    Paragraph (c)(12) of the final rule, like the proposed rule, 
requires that employers ensure anchorages used to attach to personal 
fall protection equipment are independent of any anchorage used to 
suspend workers or work platforms. This requirement ensures that if the 
anchorage holding other equipment (such as a powered platform or RDS) 
fails, the worker will still be protected by the separate, independent 
anchorage to which the personal fall protection system is secured. The 
purpose of the requirement, which the shipyard employment and 
construction fall protection standards also require (Sec. Sec.  
1915.159(a)(8); 1926.502(d)(15)), is to ensure that anchorages used to 
suspend workers or work platforms are not the anchorages that workers 
use for their personal fall protection system.
    The Industrial Truck Association (ITA) said the provision was not a 
workable requirement for mobile work platforms such as those on powered 
industrial trucks:

    On powered industrial trucks that have elevating platforms, such 
as high-lift order pickers, the anchorage for the lanyard that 
comprises part of the personal fall protection equipment is 
necessarily a part of the overhead guard or some other structural 
member that elevates with the operator platform and through the same 
mechanism (the lift chains) as the platform. This is inherent in 
mobile equipment, which cannot depend on some separate fixed 
anchorage point for the personal fall protection equipment. The 
concern is that the anchorage used for attaching the personal 
protective equipment, since it moves up and down with the operator 
platform, could be considered not ``independent'' of the anchorage 
being used to support the platform. Since OSHA obviously did not 
intend by the proposed revision to eliminate the use of high-lift 
order pickers or other powered industrial truck platforms, it 
appears that 1910.140(c)(12) requires a clarification for mobile 
equipment (Ex. 145).

    OSHA agrees with the issue the commenter raised and exempts mobile 
work platforms on powered industrial trucks from the requirement in 
final paragraph (c)(12) that anchorages be independent. Therefore, OSHA 
has added language to the final rule to address anchorages used to 
attach to personal fall protection equipment on mobile work platforms 
on powered industrial trucks. The new language specifies that those 
anchorages must be attached to an overhead member of the platform, at a 
point located above and near the center of the platform. OSHA modeled 
this language on the anchorage requirements in the national consensus 
standard on powered industrial trucks (ANSI/ITSDF B56.1-2012, Safety 
Standard For Low Lift and High Lift Trucks (Ex. 384; Section 7.37)).
    Paragraph (c)(13) of the final rule adopts strength requirements 
for anchorages for personal fall protection systems, and includes a 
performance-based alternative. The final provision, like the proposal, 
requires that anchorages either (1) be capable of supporting at least 
5,000 pounds for each worker attached, or (2) be designed, installed, 
and used under the supervision of a qualified person as part of a 
complete personal fall protection system that maintains a safety factor 
of at least two. The anchorage strength requirement applies to personal 
fall arrest, travel restraint, and positioning system anchorages, but 
not to window cleaner's belt anchors, which are addressed separately in 
paragraph (e).
    Paragraph (c)(13) is the same as the personal fall protection 
system anchorage requirement in OSHA's Powered Platforms, shipyard 
employment and construction fall protection standards (Sec. Sec.  
1910.66, appendix C, Section (c)(10); 1915.159(a)(9); 1926.502(d)(15)). 
The A10.32-2012 standard also contains similar requirements (Section 
5.1.1). Although the anchorage requirements in Z359.1-2007 and I-14.1-
2001 are similar to the final rule, they differ to some extent. For 
example, the Z359.1 standard requires:

    Anchorages selected for [personal fall arrest systems] shall 
have a strength capable of sustaining static loads, applied in the 
directions permitted by the PFAS, of at least: (a) Two times the 
maximum arrest force permitted on the system, or (b) 5,000 pounds 
(22.2kN) in the absence of certification. When more than one PFAS is 
attached to an anchorage, the anchorage strengths set forth in (a) 
and (b) above shall be multiplied by the number of personal fall 
arrest systems attached to the anchorage (Section 7.2.3).

    The I-14.1 standard requires that all components of personal fall 
arrest systems, including anchorages, comply with the Z359.1 standard, 
with some exceptions, such as window cleaner's belts (Section 
9.2.2(a)).
    OSHA did not receive any comments opposing proposed paragraph 
(c)(13), and Ameren specifically supported the performance language 
alternative: ``Ameren agrees with this language so as to allow use to 
determine suitable anchorage points because of capacity and not be 
restricted due to other designations of the equipment'' (Ex. 189).
    As discussed above, OSHA believes that all of the strength 
requirements in the final rule are necessary to provide a reasonable 
margin of safety for workers. At the same time, the final rule gives 
employers flexibility in meeting the anchorage strength requirement in 
specific circumstances. The final rule does not require a 5,000-pound 
anchorage point in every situation. An employer may use an anchorage 
that meets a different strength, provided that (1) the anchorage is 
part of a complete fall protection system, (2) the personal fall 
protection system maintains a safety factor of at least two, and (3) 
the anchorage is designed, installed, and used under the supervision of 
a qualified person.
    The Agency anticipates that even employers who cannot achieve 
5,000-pound anchorage strength should have no difficulty meeting the 
alternative 2:1 safety factor. For example, I-14.1-2001 requires that 
anchorages for positioning systems be capable of supporting 3,000 
pounds or at least twice the potential impact load of a worker's fall, 
whichever is greater (Section 9.2.3(b)). The I-14.1 requirement has 
been in place for more than 10 years, and employers are familiar with 
the standard.
    Ellis recommended that OSHA require employers using the alternate 
anchorage strength procedures in (c)(13) to document the anchorage 
``with at least a sketch or engineering drawing'' because ``anchorages 
are mostly guesswork'' (Ex. 155). OSHA believes that the requirement in 
paragraph (c)(13), that qualified persons design, install, and 
supervise the use and maintenance of anchorages, is sufficient, and 
will be more effective in protecting workers than documentation by a 
person who may not have the qualifications of a qualified person. 
Qualified persons, as paragraph (b) specifies, must possess the type of

[[Page 82656]]

qualifications (i.e., recognized degree, certificate, or professional 
standing or extensive knowledge, training, and experience) that makes 
them capable of designing anchorages that successfully meet the 
requirements of the final rule. Or, the qualified person must have 
demonstrated ability to solve and resolve the issues relating to the 
subject matter, work, or work project. Final paragraph (c)(13) requires 
that the qualified person supervise the use of the anchorages, which 
will ensure the qualified person oversees maintenance of the anchorages 
so they remain in safe and useable condition. OSHA believes this 
supervision will go further in providing worker protection than 
anchorage sketches or drawings.
    OSHA notes that an employer may use more than one qualified person 
to comply with the final rule. For example, some employers may choose 
to have an outside qualified person design the anchorages to meet the 
requirements of the final rule and an in-house, on-site qualified 
person to supervise their installation and use.
    Paragraph (c)(14) of the final rule, like the proposed rule, 
requires that restraint lines in travel restraint systems be capable of 
sustaining a tensile load of at least 5,000 pounds. OSHA's existing 
fall protection standards do not include any requirements that 
specifically address travel restraint systems or lines. The requirement 
is drawn from two national consensus standards: (1) The A10.32-2012 
standard specifies that component parts of travel restraint systems be 
designed and manufactured to meet the standard's requirements for 
personal fall arrest systems (Section 4.6.1); and (2) the Z359.3-2007 
standard requires that positioning and travel restraint lanyards be 
capable of sustaining a minimum breaking strength of 5,000 pounds 
(Section 3.4.8).
    OSHA believes the strength requirement for travel restraint lines 
in final paragraph (c)(14) is necessary for several reasons. First, the 
requirement ensures that the restraint line provides adequate 
protection if a restraint line is ever used as a lifeline. For example, 
if a travel restraint system is not rigged properly or is inadvertently 
used with a personal fall arrest system, and the worker falls off the 
walking-working surface, the restraint line essentially becomes a 
lifeline. Because of this possibility, OSHA believes it is necessary 
that travel restraint lines have the same 5,000-pound minimum breaking 
strength required of personal fall protection system lifelines and 
lanyards (see paragraph (c)(4)).
    Second, according to CSG (Ex. 329 (1/18/2011, p. 110)) and Mine 
Safety Appliances (MSA) (Ex. 329 (1/18/2011, p. 199)) travel restraint 
systems (including lines and lanyards) currently are designed and 
manufactured to support a 5,000 pound load. Further, MSA said they were 
not aware of any company that still manufacturers travel restraint 
lines that support only 3,000 pounds.
    Finally, setting the strength requirement at 5,000 pounds for 
travel restraint lines makes the provision consistent with other 
strength requirements in Sec.  1910.140 for components of personal fall 
protection systems (e.g., D-rings, snaphooks, carabiners, anchorages 
(paragraphs (c)(7) and (13))). OSHA adopts the provision as discussed.
    Paragraph (c)(15) of the final rule requires that employers ensure 
lifelines are not made of natural fiber rope. Natural fiber rope of the 
same size is weaker than its synthetic counterpart and may burn under 
friction. When the employer uses polypropylene rope, the final rule 
requires that it must contain an ultraviolet (UV) light inhibitor. 
Final paragraph (c)(15) is consistent with OSHA's Powered Platforms, 
shipyard employment, and construction fall protection standards 
(Sec. Sec.  1910.66, appendix C, Section (c)(11); 1915.159(c)(2); 
1926.502(d)(14)). Those standards specify that ropes and straps 
(webbing) used in lanyards, lifelines, and strength components of body 
belts and body harnesses be made from synthetic fibers or, with the 
exception of the construction standard, wire rope; however, those 
standards do not require that lifelines made of polypropylene rope 
contain a UV light inhibitor.
    The final rule provision also is consistent with Z359.1-2007 and 
with A10.32-2012, which provide useful guidance to help employers meet 
the requirement in final paragraph (c)(15). For example, the Z359.1 
standard provides: ``Rope and webbing used in the construction of 
lanyards shall be made from synthetic materials of continuous filament 
yarns made from light and heat resistant fibers having strength, aging, 
and abrasion resistant characteristics equivalent or superior to 
polyamides'' (Section 3.2.3.1). The A10.32 standard specifies, 
``Harnesses, lanyards, lifelines and other load-bearing devices shall 
not be made of natural fibers (including, but not limited to, cotton, 
manila and leather)'' (Section 4.5.5). The I-14.1-2001 standard 
requires that all personal fall arrest systems used in window cleaning 
operations comply with Z359.1, and prohibits ropes made entirely of 
polypropylene (Sections 6.8, 9.2.2(a)). In addition, the standard 
requires that all rope and webbing used in suspending RDS seat boards 
be made of synthetic fiber, preferably nylon or polyester (Section 
14.3(d)).
    Like the Z359.1 standard, OSHA recognizes that degradation due to 
exposure to ultraviolet light can be a serious problem, especially for 
polypropylene rope. However, OSHA believes that polypropylene rope has 
certain advantages compared to other synthetic materials. Polypropylene 
rope is strong and flexible, and may be less costly than rope made of 
other materials. Moreover, many newer polypropylene ropes are made with 
UV light inhibitors, so employers can use polypropylene rope without 
the risk of degradation from UV light. The Agency believes the final 
rule provides adequate protection for workers while embracing 
technological advances that give employers greater flexibility in 
complying with paragraph (c)(15). Additionally, OSHA removed 
``carriers'' from the final provision. Carriers are used exclusively in 
ladder safety systems, which are covered in Sec.  1910.23, and not in 
personal fall protection systems. OSHA did not receive any comments on 
the proposed provision, and adopts it as discussed.
    Paragraph (c)(16) of the final rule, like the proposed rule, 
requires that all personal fall protection systems and components be 
used only for worker fall protection. Paragraph (c)(16) also prohibits 
personal fall protection systems from being used for any other purpose, 
such as hoisting materials or equipment. The final rule applies to all 
personal fall protection systems, including personal fall arrest 
systems, positioning devices and travel restraint systems and 
components such as anchorages, harnesses, connectors, and lifelines.
    The final rule is similar to OSHA's Powered Platforms, shipyard 
employment and, construction fall protection standards (Sec. Sec.  
1910.66, appendix C, Section I, paragraph (c)(6); 1915.159(c)(9); 
1926.502(d)(18)).
    OSHA received one comment on the proposed requirement. Although 
Verallia ``agree[d] with OSHA's goal of using . . . personal fall 
protection equipment only for its intended purpose,'' they said:

    [A]nchorage points--while clearly performing a function related 
to the use of personal fall protection--fall outside the intended 
goal of preserving intact the equipment itself. In other words, 
anchorage points are designed for and have many uses outside of fall 
protection in industrial settings. Their occasional use for tasks 
other than personal fall protection is consistent with their design 
(Ex. 171).


[[Page 82657]]


    OSHA agrees anchorages have uses other than for personal fall 
protection. Anchors are used for suspended work platforms, rope descent 
systems, and other equipment. For example, using a structural beam as 
an anchorage does not mean the structural beam can never be used as a 
structural member. OSHA intends this provision to apply to those 
components that would typically be found in a personal fall protection 
kit, i.e., a body harness, lanyards, and connectors. Structural members 
used as anchorage points will obviously continue to be structural 
members and do not fall under this provision. However, for example, if 
a worker is using appropriate webbing tied around a structural member 
as an anchor point for personal fall protection, that webbing must be 
used only for personal fall protection, both at that time, and in the 
future. The webbing (and harness, lanyard, and connectors) must not be 
used for any other purpose at any other time, such as hoisting 
materials and equipment.
    Paragraph (c)(17) of the final rule, like the proposed rule, 
requires that any personal fall protection system or its component 
subjected to impact loading must be removed from service immediately. 
This requirement applies to impact loading due to a free fall, but not 
to impact loading during static load testing. The final rule also 
specifies that the employer must not use the system or component again 
until a competent person inspects the system or component and 
determines that it is not damaged and is safe to use for worker 
personal fall protection.
    The final rule is the same as the Powered Platforms, shipyard 
employment and construction fall protection standards (Sec. Sec.  
1910.66, appendix C, Section I, paragraph (e)(7); 1915.159(c)(6); 
1926.502(d)(19)). The Z359.1-2007 (Section 5.3.4) and A10.32-2012 
(Section 3.4) standards also require that impact loaded systems and 
components be removed from service; however, neither standard specifies 
requirements that allow or prohibit reuse of such equipment.
    OSHA believes that paragraph (c)(17) will ensure that employers 
implement procedures for inspection and evaluation of impact-loaded 
personal fall protection systems and components to prevent reuse of 
damaged equipment. OSHA believes that the requirements in paragraph 
(c)(17), as well as the other requirements in the final rule, provide 
sufficient safeguards to allow the reuse of impact-loaded personal fall 
protection systems after the competent person inspects and repairs or 
replaces the damaged components.
    The final rule provides the following safeguards to ensure the 
dangers of impact-loaded personal fall protection systems are addressed 
properly before reuse:
     Paragraph (c)(18) of the final rule, discussed below, 
requires that employers ensure personal fall protection systems are 
inspected for damage before each use, and remove defective components 
from service;
     Section 1910.30 of the final rule requires that each 
worker be trained in the proper inspection of fall protection 
equipment; and
     Appendix C to Sec.  1910.140 provides useful information 
on inspecting fall protection equipment and components.
    OSHA requested comment on whether the proposed approach provides 
adequate protection. In particular, OSHA asked for comment on whether 
the final standard should require destruction of ropes, lanyards, 
belts, and harnesses subjected to impact loading (75 FR 28909). Impact 
loading can cause damage to fibers that cannot be discovered easily. 
OSHA notes these components are relatively inexpensive to replace.
    OSHA received comments supporting the proposed requirement (Exs. 
185; 198; 251). ISEA (Ex. 185) and CSG (Ex. 198) both said that 
manufacturers commonly indicate in user instructions and product labels 
how to handle personal fall protection equipment after an impact, and 
recommended that: ``OSHA should err on the side of worker protection 
and recommend that when components of personal fall arrest systems such 
as ropes, lanyards, or harnesses are impact loaded, they should be 
permanently taken out of service and disposed of'' (Ex. 185). ISEA and 
CSG pointed out that some fall protection components have an impact 
load indicator that alerts users when a product must be taken out of 
service (Exs. 185; 198). This device makes it easy for employers to 
know when they need to remove personal fall protection systems and 
components from service and replace them. One commenter on the 1990 
proposed rule said that only manufacturers should inspect systems to 
determine if they are suitable for reuse (Ex. OSHA-S057-2006-0680-
0048).
    By contrast, Edison Electric Institute (EEI) opposed requiring 
removal of equipment subjected to impact loading. EEI said, 
``Inspection by a competent person is adequate to determine whether the 
component is still functional'' (Ex. 207). Similarly, SPRAT opposed the 
destruction of equipment that is ``retired'' (Ex. 205).
    OSHA believes that impact loading may adversely affect the 
integrity of personal fall protection systems, but also recognizes that 
many other factors can affect a system's potential capability for reuse 
after impact loading. These factors include the type of deceleration 
device used, and the length of the fall. For example, a short fall of 
one foot may not damage the harness, but a long fall, such as six feet 
or more, may damage or even destroy the harness. OSHA believes that if 
an impact-loaded system or component is damaged or fails the employer 
must remove it from service immediately so a competent person can 
inspect the system or component and determine whether it can be reused 
for worker fall protection. However, when a competent person's careful 
inspection of the entire system and evaluation of the factors involved 
in the fall indicates no damage has occurred, and the personal fall 
protection system or component continues to meet the strength 
requirement and other criteria necessary for continued use, OSHA does 
not believe it is necessary that employers permanently remove the 
system or component from use. OSHA notes that the employer should be 
allowed to reuse such system and components. In addition, OSHA believes 
that a competent person, as defined in paragraph (b) of the final rule, 
has the ability to carefully inspect the personal fall protection 
system and its components, evaluate the various factors involved in the 
fall, and make a determination about whether the equipment is safe for 
reuse. Moreover, the competent person has the authority to take prompt 
corrective action, including prohibiting the reuse of the equipment or 
any component that may have been damaged.
    Paragraph (c)(18) of the final rule, like the proposal, requires 
that before initial use during each workshift, personal fall protection 
systems must be inspected for mildew, wear, damage, and other 
deterioration. The provision also requires that employers remove from 
service any defective component.
    Final paragraph (c)(18) clarifies two key terms: ``before each 
use'' and ``defective component.'' Proposed paragraph (c)(18) specified 
that workers must inspect personal fall protection systems ``before 
each use.'' The final rule expressly clarifies that OSHA's intention in 
the proposed rule was that workers inspect their personal fall 
protection systems before initial use during each workshift. Thus, if 
the personal fall protection system is used in more than one workshift 
during a day, the system must be reinspected at the start of each of 
those workshifts.

[[Page 82658]]

OSHA also clarifies that the term ``defective component,'' which 
appendix C to Sec.  1910.140 refers to as a ``significant defect,'' 
means damage or deterioration that affects the function or strength of 
the system or component.
    The final rule is generally consistent with OSHA's Powered 
Platforms, construction, and shipyard employment standards (Sec. Sec.  
1910.66, appendix C, Section I(f); 1915.159(c)(5); 1926.502(d)(21)), as 
well as with Z359.1-2007 (Section 6.1) and A10.32-2012 (Section 4.1).
    OSHA believes that paragraph (c)(18), like paragraph (c)(17), will 
ensure that employers have a procedure in place for inspecting personal 
fall protection systems and components and removing defective, damaged, 
or weakened components from service. Appendix C to Sec.  1910.140 
provides useful information to help employers with the inspection 
requirement in the final rule, including a list of the types of defects 
that can require removal. (See appendix C to Sec.  1910.140, Section 
(g)).
    OSHA received only one comment on inspection of personal fall 
protection systems. Verallia recommended that OSHA require ``prior to 
use, each employee must visually inspect the anchorage points for wear 
and obvious deformities'' (Ex. 171). OSHA does not believe it is 
necessary to add the language in Verallia's recommendation because 
paragraph (c)(18) already requires that employers inspect anchorage 
points. Paragraph (c)(18) requires that employers inspect personal fall 
protection systems. The definition of personal fall protection system 
in the final rule identifies personal fall arrest systems, positioning 
systems, and travel restraint systems as examples of personal fall 
protection systems. The definitions of each of those systems explain 
that they consist of various components (``a system of equipment''), 
including anchorages. Therefore, employers must ensure that the 
inspection covers every component of the personal fall protection 
system, including anchorages, so the entire system is safe to use.
    Paragraph (c)(19) of the final rule requires employers to ensure 
that ropes, lanyards, harnesses, and belts used for personal fall 
protection are compatible with the connectors being used. Although the 
final rule does not define ``compatible,'' Z359.0-2012 defines 
compatible as follows:

    Capable of orderly, efficient integration and operation with 
other elements or components in a system, without the need of 
special modification or conversion, such that the connection will 
not fail when used in the manner intended (Section 2.29).

    OSHA believes compatibility between personal fall protection 
components and connectors is essential to prevent hazards such as 
rollout, exceeding system strength, and long free fall distances that 
can increase fall arrest forces significantly. For example, a lifeline 
or harness can disengage from a connector if its size or dimension is 
incompatibly sized or configured for use with the connector.
    In addition, the Agency has found that it is common practice for 
employers to interchange or replace components of personal fall 
protection systems (e.g., lanyards, connectors, lifelines, deceleration 
devices, body harnesses, body belts) with components produced by other 
manufacturers. Final paragraph (c)(19) gives employers flexibility to 
continue this practice when they need to replace personal fall 
protection components. At the same time, the final rule ensures that 
workers are protected from rollout and other fall hazards regardless of 
whether the employers uses replacement components from the same or a 
different manufacturer.
    Appendix C to final Sec.  1910.140 provides important information 
to help employers ensure they maintain compatibility when replacing 
personal fall protection components. For example, the appendix 
cautions: ``Any substitution or change to a personal fall protection 
system should be fully evaluated or tested by a competent person to 
determine that it meets applicable OSHA standards before the modified 
system is put to use'' (Sec.  1910.140, appendix C, Section (d)). OSHA 
notes that final paragraph (c)(19) and appendix C are consistent with 
Z359.1-2007 (Section 7.1.7), which requires that connectors, regardless 
of whether they are integral elements of the personal fall protection 
system, individual components, or replacements produced by the same or 
different manufacturers, must be suitably configured to interface 
compatibly with associated connectors which will be attached to them.
    Final appendix C to Sec.  1910.140 states the ideal way for 
employers to ensure the compatibility of components of personal fall 
protection systems is to supply workers with complete systems (appendix 
C to Sec.  1910.140, Section (d)).
    The final rule is similar to the shipyard employment fall 
protection standard, which requires that system components be 
compatible with ``their hardware'' (Sec.  1915.159(c)(3)). Both Z359.1-
2007 and A10.32-2012 include similar compatibility requirements. For 
example, A10.32 specifies: ``All equipment used in a fall protection 
system shall be compatible to limit force levels, maintain system 
strength, and prevent accidental disengagement'' (Section 1.4.3; see 
also Z359.1-2007 (Section 7.1.1)). These national consensus standards 
also require that competent persons ensure personal fall protection 
systems comprised of components and subsystems produced by different 
manufacturers are compatible (Z359.1-2007 (Section 7.1.10); A10.32-2012 
(Section 7.4)).
    Commenters raised two concerns about proposed paragraph (c)(19). 
First, ISEA and CSG seem to imply that the compatibility requirement in 
final paragraph (c)(19) is not necessary (Exs. 185; 198). For support, 
they point out that Z359.12 (Section 7.1) requires that snaphooks and 
carabiners be designed to prevent ``forced rollout,'' which ISEA and 
CSG appear to believe is an adequate solution without requiring that 
employers also comply with paragraph (c)(19). In addition, ISEA and CSG 
pointed out that manufacturers currently are designing connectors to 
prevent forced rollout. However, the explanatory note in Z359.12 
states:

    While connectors which are compliant with ANSI/ASSE Z359.12 
reduce the possibility or risk of failure as a result of 
incompatible connections, they do not eliminate it (Z359.12-2009 
(Section E7.1)).

    Moreover, OSHA notes that rollout is not the only hazard that 
component incompatibility can cause. The A10.32-2012 standard specifies 
that components of personal fall protection systems must be compatible 
in order ``to limit force levels, maintain system strength, and prevent 
accidental disengagement'' (Section 1.4.3). Accordingly, OSHA believes 
the component compatibility requirement in final paragraph (c)(19) is 
necessary because it will protect workers from all of those hazards.
    Second, ASSE argues that it is not feasible to eliminate 
incompatible connections:

    The reality is that there are too many non-certified anchorages 
and structural variations where gate loading or pressure on the 
connector will occur.
    It is not enough just to require a locking type snap hook. 
Connectors that have significantly stronger gates are readily 
available and have been for many years to the point where ANSI has 
made it a requirement for construction and design of connectors. 
Connectors tested and approved to the ANSI Z359.12 standard provide 
workers with an additional level of security that would help prevent 
fatalities (Ex. 127).

    OSHA does not agree with, and national consensus standards do not 
support, ASSE's argument. The Z359.12-2012 and A10.32-2012 standards 
include component

[[Page 82659]]

compatibility requirements. In addition, the final rule addresses the 
conditions that ASSE identifies as making the elimination of 
incompatible connections infeasible. For example, like the ANSI/ASSE 
standards, the final rule requires that anchorages, connectors, and 
other components be capable of supporting 5,000 pounds (Sec.  
1910.140(c)(4), (c)(7), and (c)(13)(i)). In addition, final Sec.  
1910.27(b)(1) requires that anchorages be certified as meeting the 
5,000-pound requirement. The final rule also incorporates a number of 
other provisions in Z359.12-2012 to ensure workers have ``an additional 
level of security that would help prevent fatalities.''
    ASSE also maintains that the requirement in proposed (c)(19) is not 
feasible because ``we continue to see fatalities related to 
incompatible connections and gate failure'' after OSHA included a 
connector compatibility requirement in Sec.  1910.66, appendix C, and 
the construction fall protection standard (29 CFR part 1926, subpart M) 
(Ex. 127). OSHA does not agree with ASSE's conclusion. The fact that 
accidents, fatalities, injuries, or illnesses may occur after OSHA 
implements a standard does not mean that the controls the standard 
requires are not feasible. Rather, it is more likely that those 
incidents are the result of noncompliance with the connector 
compatibility requirements in Sec.  1910.66 and the construction fall 
protection. Accordingly, the final rule adopts the proposed requirement 
that employers must ensure ropes, belts, lanyards, and harnesses used 
for personal fall protection are compatible with all connectors used, 
regardless of whether the components are integral elements of the 
personal fall protection system, individual components, or replacements 
produced by the same or different manufacturers.
    Paragraph (c)(20) of the final rule, like the proposal, requires 
that employers ensure all ropes, lanyards, lifelines, harnesses, and 
belts used for personal fall protection systems are protected from 
being cut, abraded, melted, or otherwise damaged. OSHA believes that 
these components of personal fall protection systems need to be 
protected from the specified hazards, which could cause damage and 
deterioration that results in components losing strength and failing.
    Final paragraph (c)(20) is broader than the requirements in OSHA's 
shipyard employment and construction fall protection standards 
(Sec. Sec.  1915.159(c)(4), 1926.502(d)(11)), which only address 
protecting lanyards and lifelines from damage. By contrast, Appendix C 
of the Powered Platforms standard specifies that any component of a 
personal fall arrest system with any significant defect which might 
affect its efficiency must be withdrawn from service immediately, or 
destroyed (Sec.  1910.66, appendix C, Section III(f)). The Z359.1-2007 
and A10.32-2012 standards contain several provisions requiring 
lifelines, lanyards, ropes, webbing, and other fall protection system 
components to be protected from the types of damage the final rule 
specifies.
    In addition to protecting fall protection equipment components from 
cuts, abrasions, and melting, the final rule requires that employers 
protect fall protection equipment from other damage (i.e., ``otherwise 
damaged''). Although the final rule does not define ``otherwise 
damaged,'' OSHA's other fall protection standards and the national 
consensus standards provide useful guidance about the types of damage 
that employers need to consider. For example, the shipyard employment 
standard requires equipment be protected from ``cuts, abrasions, burns 
from hot work operations and deterioration from acids, solvents, and 
other chemicals'' (Sec.  1915.159(c)(4)). Appendix C to the Powered 
Platforms standard lists a number of hazards: ``Any components with any 
significant defect, such as cuts, tears, abrasions, mold, or undue 
stretching; . . . damage due to deterioration; contact with fire, 
acids, or other corrosives; . . . wearing or internal deterioration of 
ropes alterations'' (Sec.  1910.66, appendix C, Section III(f)).
    The A10.32-2012 standard requires that employers protect fall 
protection equipment from abrasion, cutting, welding, electrical, and 
chemical hazards (Section 7.5). Similarly, Z359.1 requires that fall 
protection equipment be made of ``abrasive and heat resistant 
materials'' (Sections 3 and 5). OSHA did not receive any comments on 
the proposed provision, and adopts paragraph (c)(20) with the minor 
revisions mentioned above. In addition, appendix C to Sec.  1910.140 
includes many hazards employers should consider when inspecting 
personal fall protection systems (appendix C to Sec.  1910.140, Section 
(g)).
    Paragraph (c)(21) of the final rule, like the proposed rule, 
requires that employers provide for the prompt rescue of workers in the 
event of a fall. This requirement is necessary because workers 
suspended after a fall are in danger of serious injury due primarily to 
suspension trauma.
    The final rule is consistent with the rescue requirements in OSHA's 
Powered Platforms, shipyard employment, and construction fall 
protection standards (Sec. Sec.  1910.66, appendix C, Section I(e)(8); 
1915.159(c)(7); 1926.503(d)(20)). Those standards require that 
employers ``provide for prompt rescue of employees in the event of a 
fall or shall assure the self-rescue capability of employees'' (Powered 
Platforms (Sec.  1910.66, appendix C, Section I(e)(8)).
    The final rule also is drawn from three national consensus 
standards. The A10.32-2012 standard specifies that employers develop a 
``project-specific'' rescue plan that provides an appropriate form of 
employee rescue (Section 7.2.2.). The standard also requires that the 
rescue plan include providing adequate rescue equipment and training 
workers in self-rescue or alternate means. The Z359.4-2007 standard 
provides useful information to assist employers in planning for rescues 
in the event of a fall. Finally, Z359.1-2007 requires that worker 
training address fall rescue (Section 7.3.2).
    Paragraph (c)(21) of the final rule sets forth two fundamental 
points: (1) Employers must provide for the rescue of workers when a 
fall occurs, and (2) the rescue must be prompt. With regard to the 
first point, the final rule requires that employers must ``provide'' 
for rescue, which means they 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 to Sec.  1910.140, Section (h)) as 
does Z359.4-2007. 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 Bulletin on Suspension Trauma/Orthostatic 
Intolerance identifies factors that employers should consider in 
developing and implementing a rescue plan, including recognizing the 
signs and symptoms of suspension trauma and factors that can increase 
the risk of trauma, rescuing unconscious workers, monitoring suspended 
and rescued workers, providing first aid for workers showing signs and 
symptoms of orthostatic intolerance (see SHIB 03-24-

[[Page 82660]]

2004, updated 2011).\77\ ISEA supported requiring employers to have a 
rescue plan and make available equipment and personnel to provide for 
prompt rescue after a fall (Ex. 185).
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    \77\ Available from OSHA's Web site at: https://www.osha.gov/dts/shib/shib032404.html.
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    OSHA notes that although an increasing number of employers provide 
devices that allow workers to rescue themselves, where self-rescue is 
not possible, the employer must ensure that appropriate rescue 
personnel and equipment is available for prompt rescue. For example, 
unconscious workers will not be able to move so they cannot pump their 
legs to maintain circulation or relieve pressure on their leg muscles. 
Workers who are seriously injured or in shock also may have difficulty 
effecting self-rescue.
    On the second point, the final rule requires that employers provide 
``prompt'' rescue of workers who are suspended after a fall. A number 
of commenters asked OSHA to clarify the meaning of ``prompt'' rescue, 
for example, asking whether it means ``immediately'' or ``quickly'' 
(Exs. 145; 185; 198). ISEA and CSG urged OSHA to require that suspended 
workers be rescued ``quickly,'' pointing out the life-threatening 
dangers of suspension trauma and orthostatic intolerance (Exs. 185; 
198). In 2000, OSHA adopted the language ISEA and CSG recommends in 
answering the question of prompt rescue as it applies to the 
construction fall protection standard: ``[T]he word ``prompt'' requires 
that rescue be performed quickly--in time to prevent serious injury to 
the worker'' (Letter to Mr. Charles E. Hill, August 14, 2000).\78\
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    \78\ Available from OSHA's Web site at: https://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_id=24110).
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    OSHA's definition of ``prompt'' is performance based. 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 
mitigate the severity of the injury and increase the survivability of 
the worker. OSHA's performance-based definition recognizes, and takes 
into account, the life-threatening dangers of prolonged suspension:
    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).

Because of the potential for severe and even fatal injuries from 
prolonged suspension, OSHA believes that employers can ensure their 
rescue operations are effective if they model them on their first-aid 
plans. To illustrate, in the final rule revising general workplace 
conditions in shipyard employment (29 CFR part 1915, subpart F), which 
requires that employers provide ``readily accessible'' first aid, OSHA 
defined ``readily accessible'' as ``capable of being reached quickly 
enough to ensure that medical service interventions are effective,'' 
and noted that ``medical services and first aid must be provided in a 
timeframe that will ensure their effectiveness in treating an injured 
or ill employee. Medical services that can be delivered quickly enough 
to the employee to be effective would be considered readily 
accessible'' (76 FR 24576, 24600 (5/2/2011)). (For a detailed 
discussion of effective emergency aid and first aid, see the preamble 
of the shipyard employment standard (76 FR 24599-664)).

    OSHA also finds that the emergency-aid and first-aid response needs 
to be available within a few minutes ``in workplaces where serious 
accidents such as those involving falls . . . are possible'' (Letter to 
Mr. Charles Brogan, January 16, 2007).\79\ As ISEA pointed out, the 
Z359.4-2007 standard recommends that contact be made within six minutes 
of a fall.
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    \79\ Available from OSHA's Web site at: https://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_id=25627.
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    In summary, prompt rescue means employers must be able to rescue 
suspended workers quickly enough to ensure the rescue is successful--
quickly enough to ensure that the worker 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 minimized. 
OSHA believes the performance-based approach in the final rule ensures 
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.
    OSHA also received several comments on what the final rule requires 
to protect workers from orthostatic intolerance. ITA requested that 
OSHA clarify whether the final rule requires workers to carry self-
rescue equipment (Ex. 145). ISEA and CSG recommended that OSHA require 
employers to equip workers with suspension-relief devices and revise 
the definition of ``personal fall arrest system'' to include those 
devices. They said there are widely available devices that permit a 
suspended worker to relieve pressure from the harness and to ``maintain 
circulation in the large muscles of legs, reducing the potential for 
suspension trauma until help arrives'' (Exs. 185; 198). According to 
ISEA and CSG, the devices are lightweight, portable, and low cost, and 
workers can carry them as part of the personal fall arrest system. OSHA 
agrees that the benefits these devices offer are promising, and 
recommends that employers provide them, particularly in those 
situations where self-rescue may not be possible.
    Paragraph (c)(22) of the final rule requires that workers wear 
personal fall protection systems with the attachment point of the body 
harness in the center of the worker's back near shoulder level. The 
final rule includes one exception--the attachment point may be located 
in the pre-sternal position if the free fall distance is limited to 2 
feet or less.
    The final rule differs from OSHA's Powered Platforms, construction, 
and shipyard employment fall protection standards, which do not permit 
the attachment point to be located in the pre-sternal position 
(Sec. Sec.  1910.66, appendix C, Section I(e)(4); 1915.159(c)(1)(i); 
1926.502(d)(17)). OSHA drew the exception for pre-sternal positioning 
in final paragraph (c)(22) from Z359.1-2007, which permits a front-
mounted attachment point when the maximum free fall distance is two 
feet and the maximum arrest force is 900 pounds (Section 3.2.2.5a). A 
note to that section explains: ``The frontal attachment element is 
intended for the use in rescue, work position, rope access, and other 
ANSI/ASSE Z359.1 recognized applications where the design of the 
systems is such that only a limited free fall of two feet is 
permitted'' (Section E3.2.2.5a). The I-14.1-2001 standard incorporates 
this requirement from Z359.1 (Section 9.2).

[[Page 82661]]

    The final rule differs from the proposed rule in two respects. 
First, the language ``or above the employee's head'' has been 
eliminated from the first sentence of the proposed provision because 
OSHA believes this language is inaccurate. A properly sized and 
adjusted harness should not allow the attachment point to be above the 
wearer's head. Second, the proposal would have required that front-
mounted attachment points be limited to situations where the maximum 
fall arrest force does not exceed 900 pounds. OSHA deleted this 
requirement in this final rule because the Agency does not believe that 
the requirement is necessary. Final paragraph (c)(22) permits pre-
sternal attachment only when the maximum free fall limit is two feet. 
OSHA believes this limit is sufficient to ensure fall arrest forces are 
reduced significantly in the event of a fall. ISEA (Ex. 185) and CSG 
(Ex. 198) opposed the 900-pound fall arrest requirement, which they 
said was ``too prescriptive and restrictive.''
    Several commenters supported allowing a front-mounted attachment in 
certain situations, and OSHA did not receive any comments opposing its 
use. ISEA (Ex. 185) and CSG (Ex. 198) supported allowing front-mounted 
attachment points because it allowed workers to ``conduct a variety of 
tasks, such as rotating and leaning.'' AWEA also supported pre-sternal 
connection points, noting, ``Rope access workers around the world have 
been employing this technique for decades with excellent results'' (Ex. 
329 (1/21/2011, p. 22)).
    OSHA believes that allowing pre-sternal attachment when the free 
fall distance is limited to two feet will have only a minimal effect on 
the distribution of fall arrest forces, thereby reducing the risk of 
serious neck and back injury. Such use will make self-rescue easier in 
specific situations, such as confined spaces, window cleaning, and 
climbing activities because it is easier to work in front of the body 
than work behind one's body. In addition, permitting a front-mounted 
attachment point provides greater flexibility for employers in certain 
activities, such as climbing or using rope descent systems for window 
washing. Accordingly, the final rule retains the proposed exception for 
front-mounted attachment points when the maximum free fall distance is 
two feet.

Paragraph (d)--Personal Fall Arrest Systems

    Paragraph (d) of the final rule establishes specific requirements 
for using personal fall arrest systems. A personal fall arrest system 
is one type of personal fall protection system. The final rule defines 
a personal fall arrest system as a system used to arrest a worker in a 
fall from a walking-working surface. A personal fall arrest system 
consists of a body harness, anchorage, and a connector. The means of 
connection may include a lanyard, deceleration device, lifeline, or a 
suitable combination of these. OSHA notes that the provisions in 
paragraph (d) apply in addition to those provisions in paragraph (c), 
which apply to all types of personal fall protection systems.
    Paragraph (d) of the final rule includes some changes in the 
regulatory text from the proposal that clarify and simplify the 
language. Those changes do not affect the meaning or purpose of the 
provisions in paragraph (d). OSHA believes that the changes make the 
requirements in paragraph (d) easier for employers to understand, which 
should increase worker safety, and compliance with the final rule. 
Paragraph (d) consists of two primary components: Paragraph (d)(1) 
establishes performance criteria for personal fall arrest systems, 
while paragraph (d)(2) addresses the use of personal fall arrest 
systems. OSHA based the requirements for personal fall arrest systems 
on OSHA's Powered Platforms, construction, and shipyard employment fall 
protection standards (Sec. Sec.  1910.66, appendix C; 1915.159; 
1926.502(d)), as well as on several national consensus standards, 
including Z359.1-2007, A10.32-2012, and I-14.1-2001.
    System performance criteria. The requirements in final paragraph 
(d)(1), with one exception, are almost identical to the requirements in 
OSHA's Powered Platforms, shipyard employment, and construction fall 
protection standards (Sec. Sec.  1910.66, appendix C, Section I(d)(1); 
1915.159(b)(6); 1926.502(d)(16)).\80\
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    \80\ OSHA first promulgated these performance requirements in 
the Powered Platforms rulemaking (54 FR 31407 (7/28/1989)). In the 
preamble to that final rule, OSHA said that it intended to apply a 
future rule to all uses of personal fall arrest systems in general 
industry, including powered platforms, and that Appendix C to that 
rule would be superseded by the new rule (54 FR 31445-46). This 
final rule, like the proposal (75 FR 29146), removes appendix C to 
OSHA's Powered Platform rule (Sec.  1910.66). Final Sec.  1910.140 
addresses personal fall arrest systems used in all general industry, 
including powered platforms.
---------------------------------------------------------------------------

    Paragraph (d)(1)(i) of the final rule requires that employers 
ensure personal fall arrest systems limit the maximum fall arrest 
forces on a worker to 1,800 pounds. OSHA discussed the requirement 
extensively in the preamble to the Powered Platforms final rule, noting 
that the Agency proposed ``a force limit of 10 times the worker's 
weight or 1,800 pounds (8 kN) whichever is less'' (54 FR 31450). OSHA 
explained that the Powered Platforms proposed rule was consistent with 
ANSI A10.14-1975 and a report by the National Bureau of Standards (now 
the National Institute for Science and Technology) (54 FR 31450). In 
addition, OSHA said comments from the United States Technical Advisory 
Group, an advisory group representing both government and private 
interests, also supported the 1,800-pound maximum fall arrest limit for 
personal fall arrest systems.
    When the Z359.1 standard was first published in 1992, it also 
incorporated the 1,800-pound maximum fall arrest force for personal 
fall arrest systems used with body harnesses, and retained the 
requirement in every update since 1992. The updated versions of Z359.1 
(1992, 2002, and 2007) each explained the basis for the 1,800-pound 
maximum arresting force (MAF) limit as follows:

    The 1,800 pound (8 kN) MAF criteria included in this standard is 
based on the following considerations. In the mid-1970's medical 
information developed in France confirmed earlier United States 
research which observed that approximately 2,700 pounds (12 kN) is 
the threshold of significant injury incidence for physically fit 
individuals subjected to drop impacts when wearing harnesses. The 
French arbitrarily halved the above force and established 1,350 
pounds (6 kN) as their national standard for MAF in PFAS. Canada's 
Ontario Ministry of Labor reviewed this information and elected to 
establish 1,800 pounds (8 kN) for MAF. This MAF has been in effect 
since 1979 in the Ontario Provincial standard. Since that time there 
have been no reported deaths or serious injuries associated with the 
arresting of accidental falls of individuals. In addition, ISO/TC94/
SC4, in working drafts, has established the 1,800 pounds (8 kN) 
limit on MAF. On the basis of this information, 1,800 pounds (8 kN) 
is considered the appropriate MAF for inclusion in this standard 
where harnesses are to be used in arresting falls (Section E3.1.2).

    Based on this research, OSHA believes that the 1,800 pound fall 
arrest force will adequately protect workers. OSHA did not receive any 
comments opposing the proposed provision, and is adopting it in the 
final rule with only minor editorial changes.
    Paragraph (d)(1)(ii) limits the maximum deceleration distance to 
3.5 feet. This requirement pertains only to the operation of the 
deceleration device itself and not to the 6-foot free fall distance 
specified in paragraph (d)(2)(ii). The 3.5-foot deceleration distance 
in this paragraph is in addition to the 6-foot free fall distance. 
Accordingly, once the free fall ends and the deceleration device begins 
to

[[Page 82662]]

operate, the personal fall arrest system must bring the worker to a 
complete stop within 3.5 feet. Combining the free fall distance with 
the deceleration distance means that the total maximum distance a 
worker may travel during a fall could be 9.5 feet.
    The final rule is the same as the requirement in the Powered 
Platforms, construction, and shipyard employment fall protection 
standards (Sec. Sec.  1910.66, appendix C, Section I (d)(1)(iii); 
1915.159(b)(6)(iii); 1926.502(d)(16)(iv); also see 54 FR 31450 and 59 
FR 40708). Paragraph (d)(1)(ii) also is consistent with Z359.1-2007 
(Section 3.1.2). In addition, the 3.5 deceleration distance has been an 
industry and manufacturer standard for years. OSHA did not receive any 
comments on the proposed requirement, and the final rule is adopting it 
as proposed with only minor changes.
    Paragraph (d)(1)(iii) requires personal fall arrest systems to have 
sufficient strength to withstand twice the potential impact energy of 
the worker free falling a distance of 6 feet, or the free fall distance 
permitted by the system. In the final rule, OSHA has clarified the 
provision by removing the proposed language ``whichever is less.'' Both 
ways of meeting the standard are acceptable and the removed language is 
unnecessary. OSHA notes that the alternative free fall distance is the 
one the manufacturer lists in the instructions or specifications for 
the specific personal fall arrest system.
    Compliance with this requirement ensures that the personal fall 
arrest system will not fail even if subjected to twice the design shock 
load. For example, a personal fall arrest system harness that just 
meets the maximum permitted arresting force allowed in final paragraph 
(d)(1)(i) must be able to withstand an impact force of 3,600 pounds, 
which is twice the 1,800-pound potential arresting force of a worker 
using the system falling up to 6 feet. The Agency determined that a 
safety factor of two is necessary to ensure that the personal fall 
arrest system will not fail even if there is unavoidable wear on the 
system as a result of normal use. In practice, fall arrest forces 
should never approach the design shock load because the free fall 
distance likely will be 6 feet or less, and because lifelines which 
absorb energy, often will be used. OSHA also determined that a safety 
factor of two provides adequate protection and makes the final rule 
consistent with the approach in OSHA's Powered Platforms, construction, 
and shipyard employment fall protection standards.
    Paragraph (d)(1)(iv) is a new paragraph added to the final rule 
requiring that fall arrest systems be capable of sustaining the worker 
within the system or strap configuration without making contact with 
the worker's neck and chin area. The National Institute for 
Occupational Safety and Health (NIOSH) recommended adding this 
provision, saying: ``[S]tudies have shown that during suspended 
condition, the chest strap and ring of the harness can ride up on the 
worker's neck if the harness does not fit properly, posing a risk of 
injury to the worker [Hsiao et al., 2007; Hsiao et al., 2009]'' (Ex. 
164).
    NIOSH also noted that ``individuals with soft hip and thigh 
musculature are at increased risk of chest and neck strap interference 
to the neck and chin area when suspended after a successful arrest of 
fall'' (Ex. 164). OSHA agrees with NIOSH that a specific requirement is 
needed to ensure workers are not injured while using a personal fall 
arrest system. If employers select personal fall arrest systems that do 
not fit workers properly or fail to train workers in how to use systems 
properly, the system may not keep the worker safe within the strap 
configuration or body harness if a fall occurs, or may injure the 
worker's neck and chin area.
    OSHA does not believe that adding the requirement imposes any new 
burden on employers, but rather reinforces other requirements with 
which the employer must comply. Specifically, the general requirements 
that apply to all PPE, including personal fall arrest systems, require 
that employers ``[s]elect PPE that properly fits each affected 
employee'' (29 CFR 1910.132(d)(1)(iii)). If the personal fall arrest 
system does not fit properly, the worker may not be protected 
adequately if a fall occurs. OSHA also notes that applicable training 
requirements in its PPE standard require employers to train workers in 
``[h]ow to properly don, doff, adjust, and wear PPE'' (29 CFR 
1910.132(f)(1)(iii)).
    Final paragraph (d)(1)(v), proposed as a note to paragraph (d)(1), 
makes clear that personal fall arrest systems meeting the criteria and 
protocols set out in appendix D to Sec.  1910.140 will be deemed to be 
in compliance with the requirements of paragraphs (d)(1)(i) through 
(iii) when used by a worker who has a combined tool and body weight of 
less than 310 pounds. Appendix D provides one method that will allow 
employers to evaluate the ability of the personal fall arrest system to 
meet the necessary criteria. However, appendix D is restricted to 
situations in which the total body and tool weight is less than 310 
pounds because the test methods were designed for that weight. If a 
personal fall arrest system needs to support a greater weight, the test 
methods in appendix D may still be used, provided the employer modifies 
them to account for the additional weight, such as by using a heavier 
or lighter test weight to reflect the heavier or lighter weight of the 
worker. Ellis supported using the 310-pound weight in final paragraph 
(d) and in the test methods specified by appendix D to Sec.  1910.140 
(Ex. 155).
    System use criteria. Final paragraph (d)(2) establishes criteria 
for the use of personal fall arrest systems. In paragraph (d)(2)(i), 
OSHA requires that, for horizontal lifelines that may become vertical 
lifelines, the device used to connect to the horizontal lifeline must 
be capable of locking in both directions on the lifeline. OSHA believes 
this requirement is necessary because a horizontal lifeline could 
become a vertical lifeline if the support lines on one end of a 
suspended scaffold or similar work platform fail. In this case, if the 
rope grab does not lock in both directions on the now vertical 
lifeline, it could fail to hold, allowing the worker to fall. OSHA drew 
this requirement from the Powered Platforms standard (Sec.  1910.66, 
appendix C, Section (I)(e)(2) and the construction standard (Sec.  
1926.502(d)(7)). OSHA did not receive any comments on the proposed 
provision and is adopting it without substantive change.
    Paragraph (d)(2)(ii) requires the personal fall arrest system to be 
rigged so that a worker cannot free fall more than 6 feet, nor contact 
a lower level.\81\ The system strength and deceleration criteria for 
personal fall arrest systems are based on a maximum free fall distance 
of 6 feet. OSHA based this provision on the Powered Platforms, 
construction, and shipyard employment fall protection standards 
(Sec. Sec.  1910.66, appendix C, Section (I)(e)(3);

[[Page 82663]]

1915.159(b)(6)(i); 1926.502(d)(16)(iii)). The final rule also is 
similar to Z359.1-2007 (Section 7.2) and A10.32-2012 (Section 5.2.1).
---------------------------------------------------------------------------

    \81\ In subpart M, Interpretations and Clarifications--Fall 
Protection, OSHA stated that if the employer has documentation to 
demonstrate that these maximum arresting forces are not exceeded and 
that the personal fall arrest system will operate properly, OSHA 
will not issue a citation for violation of the free fall distance.
    U.S. manufacturers of fall protection equipment test their 
equipment in accordance with test procedures prescribed in ANSI 
standards (ANSI A10.32 and ANSI Z359) which calls for equipment to 
be tested based on a 6-foot free fall distance. Unless the equipment 
has been tested for a free fall greater than 6 feet, the results are 
unknown. Therefore, if an employer must exceed the free fall 
distance, the employer must be able to document, based on test data, 
that the forces on the body will not exceed the limits established 
by the standard, and that the personal fall arrest system will 
function properly.
    See interpretation M-3 on OSHA's Web site: https://www.osha.gov/Publications/Const_Res_Man/1926m_interps.html.
---------------------------------------------------------------------------

    In the final rule, OSHA added an exception that permits a free fall 
to be more than 6 feet provided the employer can demonstrate the 
manufacturer designed the system to allow a free fall of more than 6 
feet and tested the system to ensure a maximum arresting force of 1,800 
pounds is not exceeded. If the system is not designed for such a 
purpose, allowing a longer free fall distance could mean the strength 
and deceleration criteria are not adequate to protect the worker. This 
added language is consistent with OSHA's interpretation of 29 CFR part 
1926, subpart M.\82\ OSHA did not receive any comments on the proposed 
provision and is adopting it as discussed.
---------------------------------------------------------------------------

    \82\ See interpretation M-3 on OSHA's Web site: https://www.osha.gov/Publications/Const_Res_Man/1926m_interps.html.
---------------------------------------------------------------------------

    Body belts. Paragraph (d)(3) of the final rule prohibits employers 
from using body belts as part of a personal fall arrest systems. The 
final provision is consistent with A10.32-2012 (Section 1.4.1). OSHA 
notes that both the construction industry and shipyard employment 
standards already prohibit the use of body belts as part of personal 
fall arrest systems (Sec. Sec.  1915.159; 1926.502(d)). Since 1998, 
those fall protection standards have prohibited the use of body belts 
in personal fall arrest systems because, as discussed in the final rule 
to Sec.  1926.502, workers wearing them have been seriously injured by 
the impact loads transmitted and by the pressures imposed while 
suspended after fall arrest. OSHA does not believe that employers will 
have any difficulty complying with this provision because virtually all 
personal fall arrest systems manufactured and in use in the United 
States are equipped with body harnesses, not body belts. ISEA, the only 
commenter on this provision, supported the ban (Ex. 185) and the Agency 
adopts the provision as proposed.
Paragraph (e)--Positioning Systems
    Paragraph (e) establishes specific requirements for positioning 
systems, including window cleaner's positioning systems. These 
requirements apply in addition to the general requirements in paragraph 
(c), which apply to all types of personal fall protection systems. 
Positioning systems, which sometimes are called ``work-positioning 
systems,'' are a type of personal fall protection system. The final 
rule defines positioning system as a system of equipment and connectors 
that, when used with its body harness or body belt, allow a worker to 
be supported on an elevated vertical surface (e.g., wall, window sill, 
utility pole) and work with both hands free.
    OSHA received several general comments on the proposed requirements 
for positioning systems. For example, Ellis recommended that workers 
who use positioning systems should have additional fall protection (Ex. 
155). OSHA notes that workers using positioning systems are attached to 
two separate anchor points. If one anchor were to fail, the worker 
would still be protected from falling by the attachment to the other 
anchor.
    Weatherguard said, ``If OSHA does not want to promulgate the 
preciseness that is required to accomplish this, a reference to the I-
14 Standard would direct readers to what they need to have for 
compliance'' (Ex.168). Regarding Weatherguard's recommendation, OSHA 
notes that the Agency drew a number of requirements from I-14.1-2001, 
and this preamble explains those provisions so employers know what 
action is necessary to comply with the final rule.
    The Tree Care Industry Association (TCIA) expressed concern that 
workers in their industry would not be allowed to use positioning 
systems as these systems were defined in the proposed rule (Ex. 174). 
OSHA notes that the TCIA is commenting on the proposed revision to 
Sec.  1910.67(c)(2)(v), which permits workers to use positioning 
systems or personal fall arrest systems when working in aerial lifts. 
TCIA said:

    Line clearance tree trimmers and other arborists often work in 
aerial lifts that are elevated to work positions directly above high 
voltage wires, trees, buildings and other structures to trim trees. 
Notably, this work position is not typical for a lineman either 
building or maintaining some part of an electrical system. There is 
a unique and unavoidable job hazard intrinsic in the typical work 
position of the line clearance tree trimmer that is inadequately 
addressed by OSHA's current fall protection proposal. To best 
address this hazard and obtain the greatest protection of affected 
workers and also to allow for the self-rescue of an aerial lift 
operator who has fallen, OSHA should allow the use of a body belt 
and two- to three-foot lanyard. This PPE combination provides for 
the shortest overall fall distance, and thus provides the greatest 
protection against fatally dropping into nearby electric wires and 
secondarily, any other potentially injurious object at a lower 
level. The short lanyard minimizes free fall, thereby reducing the 
arresting force in the system. Finally, the attachment at the 
operator's waist allows for the possibility of self-rescue.
    A narrow requirement governing all situations, such as the one 
OSHA has proposed, does not promote worker safety to the extent that 
it could or should. It is important for OSHA to preserve the 
performance-based nature of subpart I requirements and allow the 
employer to assess the hazards and choose the fall protection that 
in its estimation will provide the greatest measure of safety in a 
given situation. The hazard we have illustrated could be addressed 
with a simple note under 1910.67(c)(2)(v): ``NOTE: If the employer 
can demonstrate that a greater hazard to the aerial lift operator is 
created by contact with structures or electrical conductors below 
the elevated lift, then a body belt and lanyard of up to three feet 
in length may be employed for fall protection'' (Ex. 174).

    Positioning systems, as defined in Sec.  1910.140(b), cannot be 
used in aerial lifts because the workers are not on a vertical surface 
such as a wall, but rather on the horizontal surface of the aerial lift 
bucket. Therefore, OSHA is revising the requirement in Sec.  
1910.67(c)(2)(v) to allow workers to use either travel restraint or 
personal fall arrest systems.
    OSHA also addressed the issue of fall protection systems for 
workers performing construction activities in aerial lifts in a 
memorandum dated August 22, 2011.\83\ That memorandum established the 
same policy regarding fall protection for construction workers in 
aerial lifts as the requirement specified by this final rule for 
general industry workers in aerial lifts. The applicable portion of 
that memorandum states:
---------------------------------------------------------------------------

    \83\ Available from OSHA's Web site at: https://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_id=27731.

    As has been the Agency's longstanding policy, an employer may 
comply with OSHA's fall protection requirements for aerial lifts in 
one of three ways:
    1. Use of a body belt with a tether anchored to the boom or 
basket (fall restraint system),
    2. Use of a body harness with a tether (fall restraint system), 
or
    3. Use of a body harness with a lanyard (fall arrest system).

    Ellis said that OSHA's policy provided a more complete answer to 
the issue of fall protection for workers in aerial lifts, and 
recommended that OSHA add the language to the final rule (Ex. 155). 
OSHA does not believe such a revision is necessary because the final 
rule already makes clear that personal fall arrest systems can only be 
used with a body harness and that travel restraint systems may use a 
body harness or body belt.
    System performance requirements. Final paragraph (e)(1) establishes 
performance criteria for positioning systems. Paragraph (e)(1)(i), like 
the proposed rule, requires employers to

[[Page 82664]]

ensure that positioning systems, except window cleaner's positioning 
systems, are capable of withstanding, without failure, a drop test 
consisting of a 250-pound weight dropped 4 feet. Although the Z359.3-
2007 standard requires a 4-foot drop test with a 300-pound weight, OSHA 
is maintaining the 250-pound weight in order to make the final rule 
consistent with OSHA's construction industry rule. Many employers use 
the same personal fall arrest system for performing both general 
industry and construction activities. If OSHA were to adopt the weight 
that Z359.3-2007 incorporates, employers may not be able to use the 
same equipment for both types of activities. OSHA believes this could 
lead to confusion and non-compliance. OSHA did not receive any comments 
on the proposed provision and finalizes the provision as proposed.
    Paragraph (e)(1)(ii)(A) of the final rule, like the proposed rule, 
requires employers to ensure that window cleaners' positioning systems 
are capable of withstanding, without failure, a drop-test consisting of 
a 6-foot drop of a 250-pound weight. Paragraph (e)(1)(ii)(B) requires 
that these systems limit the initial fall arresting force on the 
falling worker to not more than 2,000 pounds, with a duration not 
exceeding 2 milliseconds, and any subsequent fall arrest forces do not 
to exceed 1,000 pounds. Window cleaners' positioning systems have a 
potential for greater free fall distances. As such, the final rule 
requires a more rigorous drop test for these systems than for other 
positioning devices. The rigorous drop test for window cleaners' 
positioning systems, combined with the limit on initial arresting 
forces ensures workers will not be injured if a free fall occurs. The 
final rule uses the same approach for positioning systems as the 
shipyard employment standard (29 CFR 1915.160(b)(2)).
    Final paragraph (e)(1)(iii), proposed as a note, is applicable to 
paragraphs (e)(1)(i) and (ii) and explains that positioning systems, 
including window cleaners' positioning systems, meeting the tests 
methods and procedures outlined in appendix D to Sec.  1910.140 are 
considered to be in compliance with these provisions. The proposed rule 
included two notes and, for simplicity, the final rule combined these 
notes into one provision in the actual regulatory text.
    Weatherguard recommended that OSHA reference the I-14.1-2001 
standard in the final rule (Ex. 168). The final rule uses provisions 
from that standard both as a basis for a number of requirements and in 
the reference section as a resource for further information. There were 
no other comments and the provisions are finalized as discussed.
    Paragraph (e)(1)(iv) addresses criteria applicable to lineman's 
body belt and pole strap systems. Although positioning equipment used 
in electric power transmission and distribution work is not to be used 
as insulation from live parts, when a worker is working near live 
parts, it is possible that the lineman's body belt and pole strap 
systems may come into contact with them. As such, it is important that 
these systems provide some level of insulation.
    Paragraphs (e)(1)(iv)(A) through (C) require employers to ensure 
that a lineman's body belt and pole strap system be capable of passing 
dielectric and leakage current tests, as well as a flammability test. 
The requirements in paragraphs (e)(1)(iv)(A) and (B), like the proposed 
rule, are consistent with those in Sec. Sec.  1910.269(g)(2)(iii)(G) 
and 1926.954(b)(2)(vii). OSHA notes that the voltages listed in these 
paragraphs are alternating currents. OSHA included these tests in the 
final rule because the Agency believes that requiring positioning 
straps to be capable of passing the electrical tests in final 
paragraphs (e)(1)(iv)(A) and (B) will provide an additional measure of 
protection to workers, for example, if a conductor or other energized 
part slips and lands on the strap or if the strap slips from the 
worker's hand and lands on an energized part. The requirements of final 
paragraphs (e)(1)(iv)(A) and (B) are the same as those in revised Sec.  
1910.269 (79 FR 20316 (4/11/2014)). Additionally, the tests in the 
final rule are equivalent to the ones ASTM F887-12e1 (Section 15.3.1 
and Note 2) requires.
    Paragraph (e)(1)(iv)(C) is a new paragraph that OSHA added to the 
final rule requiring that lineman's body belt and pole strap systems 
meet the flammability test in Table I-7. This test is equivalent to the 
one in 29 CFR 1926, subpart V. The flammability test in Table I-7 
specifies the step-by-step process employers must ensure is followed 
when lineman's body belt and pole strap systems are tested. The table 
also includes the specific criteria the strap must meet to pass the 
flammability test.
    OSHA added the flammability test to the final rule because 
employees working near energized parts must be provided with the same 
level of protection regardless of whether they are performing general 
industry or construction activities. OSHA believes lineman's body belt 
and pole strap systems already meet these requirements, so the final 
rule will not impose additional costs and burdens on employers.
    The proposal contained notes indicating that positioning straps 
which passed direct current tests at equivalent voltages would be 
considered to be in compliance with paragraphs (e)(1)(iii)(A) and (B). 
Because these notes were more in the nature of guidance, OSHA did not 
carry them forward in the final regulatory text. Nonetheless, this is 
still a way that employers may demonstrate compliance with the 
requirements of paragraphs (e)(1)(iii)(A) and (B) of the final rule.
    System use criteria for window cleaners' positioning systems. The 
requirements in paragraph (e)(2) of the final rule, like the proposed 
rule, contain criteria applicable only to window cleaners' positioning 
systems and components (i.e., window cleaners' belts and window 
cleaners' belt anchors). There are no specific requirements for this 
type of personal fall protection system in existing OSHA standards. 
Currently, OSHA enforces the general requirement to have fall 
protection under Sec.  1910.132 (Personal Protective Equipment) as well 
as under section 5(a)(1) (``general duty clause'') of the OSH Act (29 
U.S.C. 654) while performing window cleaning operations and relies on 
national consensus standards for criteria that such systems need to 
meet. OSHA believes that including requirements specific to window 
cleaners' positioning systems in this final rule will enhance 
compliance by clarifying exactly what requirements apply to these 
systems.
    OSHA drew the requirements in paragraph (e)(2) from the I-14.1-2001 
standard that addresses the design, strength, and installation of 
window cleaners' positioning systems. OSHA believes that these 
criteria, in conjunction with the general requirements in paragraph (c) 
that are applicable to all personal fall protection systems, provide a 
reasonable and necessary level of safety for workers using these 
systems. OSHA believes that window cleaners' positioning systems and 
their associated anchors are not used as commonly as they once were. 
However, since these systems are still used on some buildings, OSHA 
finds that these minimum requirements are still necessary to ensure 
workers are protected during window cleaning operations.
    Final paragraph (e)(2)(i)(A) requires the employer to ensure that 
window cleaners' belts are designed and constructed so belt terminals 
will not pass through the fastenings on the body belt or harness if a 
terminal comes loose

[[Page 82665]]

from the window anchor. OSHA believes this requirement is necessary 
because, if the belt terminal comes loose from the window anchor, the 
worker will likely fall if the belt is not designed to keep the belt 
terminals from pulling through the fastenings on the waist belt. There 
were no comments on the proposed provision and it is finalized with 
only minor revisions for clarity.
    Final paragraph (e)(2)(i)(B), like the proposed rule, requires the 
employer to ensure that window cleaners' belts be designed and 
constructed so the length of the runner from the tip of one terminal 
end to the tip on the other end does not exceed eight feet. This 
requirement is consistent with I-14.1-2001 (Section 10.2.9(c)) and OSHA 
believes it is necessary to limit the length of runners to 8 feet so 
that workers are not leaning too far back from the window they are 
cleaning. Leaning too far back may cause the worker to lose balance and 
become inverted, possibly striking the building and becoming injured. 
There were no comments on the proposed provision and it is finalized 
without revision.
    Final paragraph (e)(2)(ii) requires the employer to ensure that 
window anchors used for attaching window cleaners' belts are installed 
in the side of window frames or mullions at a height not less than 42 
inches and not more than 51 inches above the window sill. This 
requirement is consistent with I-14.1-2001 (Section 10.2.5) and OSHA 
believes it is widely accepted within the industry. Prior to the I-14.1 
standard, the provision was also present in the ANSI/ASME A39.1 
standard, which dates back to 1933. There were no comments on the 
proposed provision and it is finalized with only minor revisions for 
clarity.
    Final paragraph (e)(2)(iii) requires that employers ensure window 
anchors are capable of supporting a minimum load of 6,000 pounds. It is 
consistent with I-14.1-2001 (Section 10.2.4). The final provision is 
similar to the proposal but it does not include the proposed 
requirement that the structures to which window anchors are attached 
also must support a 6,000-pound minimum load requirement.
    Weatherguard opposed the proposed requirement, saying:

    [This requirement was] not consistent with the current codes and 
standards. The requirement that has been in place for at least the 
last 60 years is that the anchor be capable of supporting a 6,000-
pound load without fracture in the direction that it may be loaded. 
The structure to which it is attached does not have that requirement 
(Ex. 168).

    OSHA agrees with Weatherguard. In order for the anchor to support 
the minimum 6,000 pound load, so must the structure to which it is 
attached. Therefore, OSHA removed the language because it is not 
necessary.
    Final paragraph (e)(2)(iv) like proposed paragraph (e)(2)(vi), 
requires employers to ensure that window anchors are not used for any 
purpose other than attaching window cleaners' belts. Window anchors are 
built for the specific purpose of supporting a worker using a window 
cleaner's positioning system and OSHA believes they must only be used 
for their intended purpose. Using the anchors for other purposes may 
cause deterioration that could result in failure of the anchor when 
window cleaners then use the anchors. The requirement is consistent 
with I-14.1-2001 (Section 10.2.1). There were no comments on this 
provision and it is finalized with only minor editorial revisions for 
clarity.
    Final paragraph (e)(2)(v), like the proposed rule, requires 
employers to ensure window anchors that have damaged or deteriorated 
fastenings or supports are removed, or the window anchor head is 
detached so the anchor cannot be used. If damaged or deteriorated 
anchors are not removed and replaced, the anchor may fail or break when 
a window cleaner's positioning system is attached, which could lead to 
the worker falling and being seriously injured or killed. There were no 
comments on this provision and it is finalized with editorial revisions 
for clarity.
    Final paragraph (e)(2)(vi), like proposed paragraph (e)(2)(iv), 
requires employers to ensure rope that has wear or deterioration that 
affects its strength is not used. OSHA believes that deterioration or 
wear that significantly reduces a rope's strength may lead to worker 
death or injury if that rope fails. OSHA realizes that some minimal 
wear may occur on the sheath of modern kernmantle rope during normal 
use. That type of wear is expected during the life of the rope, 
however, if the sheath is so damaged as to expose the core of the rope 
(which could lead to damage), or other such damage affects the strength 
of the rope, that rope must be retired and no longer used by workers. 
There were no comments on this provision and it is finalized with minor 
editorial revisions for clarity.
    Final paragraph (e)(2)(vii), like the proposed rule, requires 
employers to ensure both terminals of the window cleaner's belt are 
attached to separate window anchors during any cleaning operation. When 
the worker is moving into position, entering, or exiting the building 
or structure before or after cleaning, or traversing to another window, 
it is not always possible to have both terminals attached to separate 
window anchors; however, while cleaning the window the terminals must 
be attached to separate anchors. This requirement is consistent with I-
14.1-2001 (Section 5.3.9). There were no comments on this provision and 
it is carried forward to the final rule with only minor editorial 
changes.
    Final paragraph (e)(2)(viii) requires employers to ensure that no 
employee works from a window sill or ledge on which there is snow, ice, 
or any other slippery condition, or one that is weakened or rotted. As 
in other OSHA requirements (e.g., Sec.  1910.22(a), (b), and (d)) the 
Agency believes that clean, dry, and firm footing is essential to 
avoiding slips and falls that may cause injury to workers. This final 
provision is consistent with I-14.1-2001 (Section 5.3.2). There were no 
comments on this provision and it is adopted with minor revisions to 
provide more clarity.
    Final paragraph (e)(2)(ix) of the final rule prohibits employers 
from allowing window cleaning work on a window sill or ledge unless:
     The sill or ledge is a minimum of 4 inches wide and slopes 
no more than 15 degrees below horizontal (final paragraph 
(e)(2)(ix)(A)); or,
     The 4-inch minimum width of the sill or ledge is increased 
0.4 inches for every degree the sill or ledge slopes beyond 15 degrees, 
up to a maximum of 30 degrees (final paragraph (e)(2)(ix)(B)).
    OSHA believes that this requirement presents the minimum sill or 
ledge width necessary for workers using window cleaners' positioning 
systems to safely perform their tasks. This provision is consistent 
with the A39.1 standard (Section 3.8). No comments were received on 
this provision and it is adopted with minor revisions for clarity.
    Final paragraph (e)(2)(x) requires employers to ensure that the 
worker attaches at least one belt terminal to a window anchor before 
climbing through the window opening, and keeps at least one terminal 
attached until completely back inside the window opening. This 
provision ensures that the worker is securely attached to at least one 
anchor before going outside the building and being exposed to a fall. 
This provision has been revised from the proposed rule for clarity and 
is also consistent with I-14.1-2001 (Section 5.3.8 and 5.3.10). No 
comments were received on this provision and it is adopted as 
discussed.
    Final paragraph (e)(2)(xi), like proposed paragraph (e)(2)(xi)(A), 
requires that employers ensure workers travel from one window to 
another by returning inside the window opening

[[Page 82666]]

and repeating the belt terminal attachment procedures at each window as 
described in final (e)(2)(x), except as provided in paragraph 
(e)(2)(xii). OSHA believes that it is safer for workers to return to 
the inside of the building after cleaning a window and re-exit the 
building at the next window to be cleaned (when using a window 
cleaner's positioning system) in the vast majority of circumstances. In 
certain circumstances, the Agency allows travel outside the building, 
which are described in final paragraph (e)(2)(xii). This provision has 
been revised from the proposed rule for clarity and also is consistent 
with I-14.1-2001 (Section 5.3.11). OSHA notes that final paragraph 
(e)(2)(xii), discussed below, allows workers to move from one window to 
another while outside the building in certain circumstances. OSHA did 
not receive any comments on the proposed rule and adopts it with 
editorial clarifications.
    Final paragraph (e)(2)(xii), similar to proposed paragraph 
(e)(2)(xi)(B), specifies that employers may allow workers to move from 
one window to another while outside of the building provided:
     At least one window cleaner's belt terminal is attached to 
a window anchor at all times (final paragraph (e)(2)(xii)(A));
     The distance between window anchors does not exceed 4 feet 
horizontally. The distance between window anchors may be up to 6 feet 
horizontally if the window sill or ledge is at least 1 foot wide and 
the slope is less than 5 degrees below horizontal (final paragraph 
(e)(2)(xii)(B));
     The sill or ledge between windows is continuous (final 
paragraph (e)(2)(xii)(C)); and
     The width of the window sill or ledge in front of the 
mullions is at least six inches wide (final paragraph (e)(2)(xii)(D)).
    OSHA believes that all of these conditions must be present and 
requirements must be met to ensure workers are protected from falling 
when they move from window to window on the outside of the building. 
These requirements, for example, ensure that workers always have a 
continuous walking-working surface (i.e., window sill or ledge) when 
they move from one window to another and the width and angle of that 
surface is sufficient so workers are able to maintain firm footing 
while traversing between windows. The final rule is consistent with I-
14.1-2001 (Section 5.3.11).
    Final paragraph (e)(2)(xii) differs from the proposed rule in two 
respects. First, the final rule deletes the proposed requirement 
prohibiting workers from moving from one window to another on the 
outside of the building if a window unit is not ``readily accessible.'' 
Final paragraph (e)(2)(xii)(B) more clearly specifies what OSHA intends 
by window units being readily accessible; therefore, OSHA does not 
believe the proposed provision is necessary. Second, the final rule 
reorganizes and restates the proposed requirement so it is easier for 
employers to understand and follow. OSHA did not receive any comments 
on the proposed rule and adopts as discussed.
Appendices to Sec.  1910.140 (Non-Mandatory)
    OSHA added two appendices to Sec.  1910.140 that provide 
information, guidance, and examples pertaining to the types of personal 
fall protection systems this section regulates. These appendices are 
not mandatory; i.e., they do not establish any additional obligations, 
nor impose or detract from any obligations, in Sec.  1910.140.
    Appendix C provides information and guidance concerning the use of 
personal fall protection systems. The information includes 
considerations for planning, selection of personal fall protection 
systems, worker training, and maintenance and inspection of personal 
fall protection systems. Appendix D provides test methods for personal 
fall arrest and positioning systems.
    OSHA drew the appendices from the OSHA construction fall protection 
standards (29 CFR part 1926, subpart M), which the Agency issued in 
1994. OSHA based the appendices in the construction fall protection 
standards on national consensus standards. In addition, experts on 
OSHA's construction staff, including engineers, assisted in developing 
the guidance and test methods in the appendices.
    OSHA revised the proposed appendices for several reasons. First, 
some of the language and terms in the proposed appendices were geared 
to the construction industry. For example, the proposed appendices used 
``rebar hooks,'' which are not used in general industry. OSHA revised 
the appendices to incorporate language and terms that are familiar to 
general industry employers and workers and are used in the regulatory 
text of Sec.  1910.140.
    Second, OSHA updated the proposed appendices with information that 
has become available since OSHA published the construction fall 
protection standard. For example, Appendix C includes information about 
the danger of orthostatic intolerance due to prolonged suspension in a 
personal fall protection system.
    Third, OSHA also made changes to the proposed appendices to 
incorporate recommendations commenters suggested. Those additions are 
discussed below.
    Fourth, OSHA reorganized some of the sections of Appendix C so they 
follow the same order as the regulatory text of Sec.  1910.140. The 
Agency believes this reorganization will help employers locate more 
quickly the information they need to comply with the final rule.
    Finally, OSHA made revisions to the appendices to comply with the 
goals of the Plain Writing Act of 2010 (PWA) (Pub. L. 111-274, enacted 
January 5, 2010). It was only after OSHA published the proposed rule 
and appendices that the requirements of the PWA applied to the Agency. 
The PWA requires that OSHA use plain writing in every ``covered 
document'' of the Agency that it issues or substantially revises (Pub. 
L. 111-274, sec. 4(b)). The PWA defines covered documents as ``any 
document that explains to the public how to comply with a requirement 
that the Federal Government administers or enforces'' (Pub. L. 111-274, 
sec. 3(2)(iii)). Since the purpose of these non-mandatory appendices is 
to help employers comply with the new rule, they meet the PWA's 
definition of ``covered documents.'' OSHA believes the revisions to the 
proposed appendices will make them easier to understand and use, 
thereby increasing compliance with the final rule.
Appendix C to Subpart I of Part 1910--Personal Fall Protection Systems 
Non-Mandatory Guidelines
    OSHA requested comment on whether any of the provisions in appendix 
C should be included in the regulatory text of Sec.  1910.140, and 
whether the appendices should include other information.
    NIOSH recommended that OSHA consider adding the following 
information to appendix C regarding harness sizes: ``The employer 
should ensure sufficient body harness sizes and configurations to 
accommodate diverse body sizes and shapes in the workforce.'' NIOSH 
added:

    There have been significant changes in body dimensions among the 
U.S. civilian population over the last several decades. The diverse 
workforce in the construction workforce by gender and ethnicity 
showed a greater variation in range of body dimensions and shapes 
compared to that in the 1970s and 1980s [citations omitted]. The 
modern full body harness has evolved to become a more comfortable, 
easy-to-use body support system that offers a high level of security 
for a variety of work tasks at height [citations omitted]. 
Sufficient body harness sizes and configurations to accommodate 
diverse body

[[Page 82667]]

sizes and shapes in the workforce are a critical step to reduce the 
risk of injury that results from poor user fit and improper size 
selection. The overall combination of a worker's body dimensions 
governs the best fit body harness size; body weight and stature 
alone do not define the best fit (Ex. 164).

OSHA agrees with NIOSH's suggestion and added information to Appendix C 
recommending that employers consider a broader anthropometric range 
when selecting personal fall protection systems, including harnesses.
    Many commenters from the outdoor advertising industry (Exs. 75; 80; 
81; 82; 87; 90; 92; 102; 104; 119; 120; 143) opposed including a list 
of ``approved equipment'' in Appendix C because employers should be 
able to use newer or improved safety devices as they become available 
rather than waiting for devices to be approved in a ``lengthy 
bureaucratic process.'' For example, Chris McGinty said:

    [T]here is some consideration of the creation of a ``list'' of 
approved equipment. I suggest that this would be an error due to the 
reality of a safety products industry that is constantly designing, 
testing and introducing improved or enhanced safety devices. . . . 
By trying to control the exact brands and models allowable, such a 
program would invariably be months behind technology and might 
indirectly lead to losses (Ex. 143).

    Appendices C and D do not include a list of approved equipment, 
systems, components, or devices. In 1999, the Agency reiterated its 
long held position regarding equipment approval:

    OSHA does not approve, endorse, or recommend any particular 
manufactured product because the manufacturer cannot ensure how the 
product will be used. The final determination of compliance with 
OSHA's standards must take into account all factors pertaining to 
the use of such product at a particular worksite with respect to 
employee safety and health. This must include an evaluation, through 
direct observation, or employee work practices and all conditions in 
the workplace. Therefore, under the Occupational Safety and Health 
Act of 1970, only the employer is responsible for compliance with 
the Act and for the safe use of any product by their employees 
(letter to Ron Oxentenko from Richard Fairfax, Directorate of 
Compliance Programs, September 17, 1999).\84\
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    \84\ Available on OSHA's website at: https://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_id=22784.

    The final rule lists the requirements that employers are 
responsible for ensuring their personal fall protection systems meet. 
Appendices C and D both provide guidance that employers may use in 
evaluating whether the personal fall protection system they are 
considering will meet the requirements in the final rule.
    Regarding paragraph (h) of appendix C, ITA expressed concern about 
mentioning self-rescue equipment (e.g., equipment with descent 
capability). ITA was concerned that referring to such equipment would 
emphasize employee rescue in the design of PPE when, for example, PPE 
used on powered industrial truck platforms does not currently include 
self-rescue equipment. ITA believes any mention of self-rescue 
equipment in Appendix C would have a significant impact in the market, 
and cautioned OSHA to ensure that such an impact would not occur (Ex. 
145).
    OSHA does not agree that mentioning self-rescue equipment will 
cause a significant impact on the market. This equipment has been 
marketed and readily available for a number of years. OSHA's Powered 
Platforms standard, issued in 1989, requires that employers provide for 
prompt rescue or ``shall assure the self-rescue capability of 
employees'' (Sec.  1910.66, appendix C, Section I(e)(8)). The 
construction (1994) and shipyard employment (1996) standards contain 
the same requirement (Sec. Sec.  1926.502(d)(20); 1915.159(c)(7)).
    In 2000, OSHA responded to an inquiry from Mr. Charles Hill with 
Southwestern Bell Telephone Company, chair of the National 
Telecommunications Safety Panel, about whether employers must provide 
self-rescue equipment when working in bucket trucks and aerial lifts. 
In 2004, OSHA published a Safety and Health Information Bulletin on 
Suspension Trauma/Orthostatic Intolerance (SHIB 3-24-2004, updated 
2011) that identified self-rescue equipment. The proposed rule also 
discussed self-rescue equipment for personal fall protection systems 
(75 FR 28910).
    OSHA believes that employers, including members of ITA, are aware 
of self-rescue equipment and likely have been aware of such equipment 
for some time. In the past decade, OSHA has not seen any data 
suggesting that employer awareness of self-rescue equipment has 
resulted in an adverse impact on the market, nor did ITA provide such 
data in its comment. Therefore, OSHA does not believe there is likely 
to be an adverse impact now.
    ITA also requested OSHA ``clarify the circumstances when [self-
rescue equipment is] deemed to be necessary'' (Ex. 145). OSHA stresses 
that neither the final rule nor the appendices require that employers 
provide self-rescue equipment. Rather, the final rule requires that 
employers provide for ``prompt rescue'' of workers in the event of a 
fall. To ensure rescue is prompt, employers may use self-rescue 
equipment, but they also may provide prompt rescue through other means 
(see detailed discussion of ``prompt'' rescue in the explanation of 
Sec.  1910.140(c)(21) above).
    With regard to paragraph (i) of Appendix C on ``Tie-off 
considerations'', Ellis suggested that OSHA ``point out the drastic 
consequences of allowing a SRL [self-retracting lifeline or lanyard] 
cable or web that passes over almost any edge except wood will break 
unless there is an energy absorber at the hook end'' (Ex. 155). OSHA 
agrees that the potential for breakage is greater in the circumstance 
Ellis describes and believes the language of paragraph (i)(2) of 
appendix C adequately addresses his concern. OSHA believes that system 
manufacturers also include such a warning in their instructions and 
recommendations.
    Regarding paragraph (j) of appendix C, Verallia commented that 
recommending use of ``extreme care'' for horizontal lifelines is ``too 
subjective and vague'' to be consistently applied or enforced, and that 
OSHA should clarify or remove the language. OSHA disagrees with this 
comment. The paragraph on horizontal lifelines says employers should 
use extreme care in doing a specific task, using multiple tie-offs in 
horizontal lifelines. The paragraph then explains specifically why 
employers need to use extreme care (i.e., the movement of one employee 
falling from a horizontal lifeline may cause other employees to fall). 
OSHA also explains what employers should do to minimize the hazard. 
Finally, because of the hazards associated with horizontal lifelines, 
OSHA explains that qualified persons must design, install, and 
supervise the use of personal fall protection systems that use 
horizontal lifelines (Sec.  1910.140(c)(11)(i)). OSHA believes the 
appendix and standard are clear, and that employers will be able to 
understand and comply with the requirements on horizontal lifelines in 
Sec.  1910.140(c)(11).
    In addressing paragraph (n) of appendix C, Verallia asserted that 
the statement in this paragraph notifying employers that they should 
``be aware'' that a personal fall protection system's maximum fall 
arrest force is evaluated under normal use conditions is too vague, and 
recommended that this statement be clarified if an employer is going to 
be potentially subject to enforcement for lack of awareness. OSHA does 
not agree with Verallia's comment. Not only does paragraph (n) indicate 
that employers need to understand that testing personal fall

[[Page 82668]]

protection systems is to be performed under normal conditions, but 
appendix C also reminds employers of this testing requirement. OSHA 
believes the multiple references to testing personal fall protection 
systems under normal use conditions are clear and understandable. OSHA 
also notes that the appendices to Sec.  1910.140 are not mandatory.
Appendix D to Subpart I--Test Methods and Procedures for Personal Fall 
Protection Systems Non-Mandatory Guidelines
    OSHA asked for comment on test methods in appendix D, and whether 
the Agency should include any test methods in the regulatory text of 
Sec.  1910.140 or test methods and procedures in Appendix D, and 
whether any of the test methods need updating.
    Ameren recommended that OSHA delete the test methods in appendix D 
because product testing rests with the manufacturer instead of the end 
user. Ameren also said that that if OSHA believes it is necessary for 
employers to test their personal fall arrest systems, appendix D should 
add an option allowing employers to test systems ``per manufacturer's 
instructions'' (Ex. 189). Ameren explained:

    Testing of fall protection lies more with the manufacturer of 
the equipment and less with the end user, whereas the inspection and 
checking of the equipment lies with the user. As long as a 
manufacturer is required to meet certain standards prior to selling 
their products, there should be no need for post purchase testing, 
hence no requirement for detailed, outlined testing instructions for 
the employer (Ex. 189).

OSHA does not agree with Ameren's recommendation for several reasons. 
First, although the final rule does not require that employers 
personally test the personal fall protection systems they use, some 
employers conduct their own tests to ensure that systems and equipment 
meet the requirements of OSHA standards. Appendix D gives those 
employers the information and flexibility they need to conduct tests on 
personal fall protection systems.
    Second, the final rule and appendices do not require employers to 
test personal fall protection systems. Employers are free to select 
personal fall protection systems that manufacturers have tested rather 
than testing them themselves. However, employers are ultimately 
responsible for ensuring that the systems they provide to their workers 
meet the requirements of Sec.  1910.140. Manufacturer instructions and 
specifications often will explain that equipment or systems have been 
tested and meet the requirements of an OSHA or national consensus 
standard. However, when the manufacturer has not tested the system 
according to appendix D or other recognized test methods, or does not 
affirm that the system meets the requirements of Sec.  1910.140, then 
employers cannot use the system without verifying independently that it 
meets the requirements of Sec.  1910.140. Using such a system without 
verifying its safety puts workers at risk of harm.
    Finally, OSHA stresses that appendix D and the test methods in it 
are not mandatory. Employers are free to use personal fall protection 
systems that have been tested using other methods, provided those test 
methods ensure the systems meet the requirements in Sec.  1910.140.
    Penta Engineering Group, Inc. recommended that OSHA add several 
test methods in appendix D:

    ANSI/IWCA 1-14.1-2001 requires testing anchors by applying a 
minimum static load of twice the design load in each (primary) 
direction that the load might be applied and that this outlines a 
good generic method adequate for load testing tie-back safety 
anchors at most buildings. Also included in the ANSI/IWCA I-14.1-
2001 is that any testing procedure should be developed and performed 
under the direction of a registered professional engineer. This 
language should also be part of the proposed rule (Ex. 193.)

OSHA does not believe it is necessary to add test methods in I-14.1 to 
appendix D. The test methods in appendix D are not mandatory, and 
personal fall protection systems can be tested using other recognized 
tests, such as those tests specified in national consensus standards 
such as I-14.1, provided those test procedures ensure that the systems 
meet the requirements in Sec.  1910.140. OSHA also does not believe it 
is necessary to include in the final rule or in Appendix D Penta's 
recommendation that tests methods be developed and performed under the 
direction of a registered professional engineer. The test methods in 
appendix D were developed by experts, including engineers. OSHA 
believes that testing organizations and manufacturers also test systems 
under the supervision of experts and qualified persons, which likely 
include engineers.
    SPRAT offered another suggestion regarding test methods. They 
recommended that OSHA accept markings on equipment as meeting the ANSI 
Z359 family of standards. They said this would help to ensure test 
methods and equipment are consistent with and meet current national 
consensus standards.
    OSHA does not agree. The Agency does not have the resources to 
ensure all manufacturers accurately mark their products. As noted in 
the final rule and appendices, employers and manufacturers are not 
required to use the test methods in appendix D. They are free to test 
personal fall protection systems using other recognized test methods 
and procedures, including those specified by ANSI and other national 
consensus standards, provided those test methods ensure that the 
systems meet the requirements in Sec.  1910.140.
    Verallia recommended adding a requirement to paragraph (b)(2) of 
appendix D requiring that each employee visually inspect anchorage 
points prior to use (Ex. 171). OSHA does not believe that Verallia's 
recommendation is appropriate for appendix D. Appendix D addresses 
methods employers and manufacturers may use for testing personal fall 
protection systems to ensure they meet the requirements in Sec.  
1910.140 prior to the purchase and use of the systems. Verallia's 
recommendation applies to use of personal fall protection systems after 
the systems are in use in the workplace. However, OSHA notes that 
paragraph (c)(18) of the final rule addresses Verallia's recommendation 
by requiring that the employer ensure the entire personal fall 
protection system, which the final rule defines to include the 
anchorage, be inspected before initial use in each workshift. In 
addition, OSHA added language to Appendix C mentioning this 
requirement, and included anchorages as one of the examples.

C. Other Revisions to 29 CFR Part 1910

    The final rule also includes changes to provisions in subparts F, 
N, and R of 29 CFR part 1910. Primarily, the changes are technical in 
nature and are necessary so all sections in part 1910 conform to final 
subparts D and I.
    Most of the changes in subparts F, N, and R update references to 
final subparts D and I. For example, existing Sec.  1910.265(f)(6)--
Sawmills, requires that ladders comply with existing Sec.  1910.27 
(Fixed ladders). However, the final rule reorganizes subpart D and the 
ladder requirements are no longer in Sec.  1910.27. Instead, 
requirements applicable to ladders are contained in other sections of 
final subpart D (i.e., Sec. Sec.  1910.22, 1910.23, 1910.28, 1910.29). 
To ensure that employers comply with all of the applicable general 
industry ladder requirements, the final rule revises Sec.  
1910.265(f)(6) to specify that ladders must comply with 29 CFR part 
1910, subpart D.
    Some changes in subparts F, N, and R replace existing references 
with

[[Page 82669]]

references to final subparts D and I. For instance, existing Sec.  
1910.66--Powered platforms for building maintenance, specifies that 
employers provide personal fall arrest systems that comply with 
Appendix C of that section (existing paragraph (f)(5)(ii)(L)). Appendix 
C established provisions for the use of personal fall arrest systems 
because, at the time OSHA promulgated Sec.  1910.66, the general 
industry fall protection requirements did not allow employers to use 
personal fall arrest systems, as defined in final Sec. Sec.  1910.21(b) 
and 1910.140(b). Final subpart D adds provisions allowing employers to 
use personal fall arrest systems, and final subpart I establishes 
performance, use, and care criteria for those systems. In conjunction 
with those revisions to subparts D and I, OSHA revises Sec.  1910.66 to 
specify that employers comply with the requirements in final subpart I 
instead of those in appendix C. With the addition of the personal fall 
arrest system provisions to final subpart I, Sec.  1910.66 Appendix C 
is no longer necessary; accordingly, the final rule deletes it.
    Similarly, in final Sec.  1910.269(c)(2)(i) OSHA replaces 
references to personal fall arrest system provisions in 29 CFR part 
1926, subpart M--Fall Protection, with citations to the personal fall 
protection requirements in final subpart I.
    Finally, the final rule revises subpart F (Sec.  1910.67(c)(2)(v)) 
to require that employees wear either a personal fall arrest system or 
travel restraint system that complies with final subpart I when they 
are working from an aerial lift. Existing Sec.  1910.67(c)(2)(v) allows 
employees to wear a body belt and lanyard for fall protection in aerial 
lifts while the proposed rule would have required that aerial lift 
operators use a ``positioning system'' or personal fall arrest system. 
Neither the existing nor proposed rules are consistent with OSHA 
general industry (Sec. Sec.  1910.140 and 1910.269) and construction 
standards (Sec. Sec.  1926.453, 1926.502, and 1926.954). To resolve 
this discrepancy, in final Sec.  1910.67(c)(2)(v) OSHA revises the 
existing and proposed rules in two ways.
    First, final Sec.  1910.67(c)(2)(v) eliminates the existing 
requirement, which specifies that employees use body belts and lanyards 
for fall protection when working from aerial lifts, because it is not 
consistent with final subpart I (final Sec.  1910.140(d)(3)). Final 
subpart I, like the construction fall protection standard (Sec.  
1926.502(d)), prohibits the use of body belts as part of a personal 
fall arrest system. OSHA has determined, as the Agency did in the 
construction fall protection rulemaking (59 FR 40672 (8/9/1994)), that 
body belts must be prohibited because they do not afford a level of 
protection equivalent to body harnesses and present unacceptable risks 
in fall arrest situations. Specifically, as OSHA discussed in the 
explanation of Sec.  1910.140, fall arrest forces are more concentrated 
for a body belt than a body harness, therefore, the risk of injury in a 
fall is much greater when workers use a body belt. In addition, in a 
fall, workers are more likely to slip out of a body belt than a body 
harness and be killed or seriously injured. Moreover, if a fall occurs, 
the hazards associated with prolonged suspension in a body belt are 
substantially more severe than suspension trauma associated with body 
harnesses. (Also see discussion of the prohibition of body belts in the 
preamble revising the general industry and construction Electric Power 
Generation, Transmission, and Distribution and Electric Protective 
Equipment standards (hereafter referred to as ``subpart V'') (79 FR 
20316, 20383-88 (4/11/2014)).
    To make final Sec.  1910.67(c)(2)(v) consistent with final subpart 
I, OSHA replaces the existing provision with the requirement that 
workers use a personal fall arrest system or travel restraint system 
that meets the requirements of final subpart I when working from an 
aerial lift. This revision also makes final Sec.  1910.67 consistent 
with the construction aerial lift (Sec.  1926.453(b)(2)(v) note 1) and 
fall protection standards (Sec.  1926.502(d)) as well as subpart V 
(Sec. Sec.  1910.269(g)(2)(iv)(C)(1) and 1926.954(b)(3)(iii)(A) (79 FR 
20640, 20700)).\85\
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    \85\ Since final Sec.  1910.67(c)(2)(v) and Sec.  
1910.269(g)(2)(iv)(C)(1) are consistent, OSHA is eliminating the 
sentence in Sec.  1910.269(g)(2)(iv)(C)(1) stating that final Sec.  
1910.67(c)(2)(v) does not apply. OSHA believes the sentence is not 
necessary and deleting it eliminates any potential for confusion.
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    OSHA notes that final subpart I (final Sec.  1910.140(b) and 
(d)(3)), like the construction aerial lift and fall protection 
standards, allows the use of body belts with a travel restraint system 
when employees work from an aerial lift (See also letter to Mr. Jessie 
L. Simmons (5/11/2001) \86\). OSHA allows the use of a body belt with a 
travel restraint system because the system ``prevents a worker from 
being exposed to any fall'' (Letter to Mr. Charles E. Hill (8/14/
2000)). To ensure that employees using travel restraint systems in 
aerial lifts are protected, the employer must ensure the lanyard and 
anchor are arranged so workers are not potentially exposed to falling 
any distance.
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    \86\ Letter available on OSHA's Web site at: https://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_id=24360.
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    Second, final Sec.  1910.67(c)(2)(v) revises the proposed rule to 
require that employees must use a personal fall arrest system or travel 
restraint system when working in an aerial lift. The proposed rule 
specified, mistakenly so, that employees use a personal fall arrest 
system or ``positioning system'' for fall protection when they work 
from an aerial lifts. In actuality, OSHA does not permit employees to 
use positioning systems when working from an aerial lift (Letters to 
Mr. Jessie L. Simmons (5/11/2001) and Mr. Charles E. Hill (8/14/2000)). 
A positioning system is defined in the proposed and final rules as a 
system that support employees on an elevated ``vertical'' surface, such 
as a wall or window sill (final Sec. Sec.  1910.21(b) and 1910.140(b)). 
However, employees working from aerial lifts are on horizontal 
surfaces. Positioning systems are ``designed specifically to stop a 
worker from falling from a static, head-up position'' (Letter to Mr. 
Jessie L. Simmons (5/11/2001)); however, falls from a horizontal 
surface, such as an aerial lift, can begin with the worker in other 
than a static, head-up position (Letter to Mr. Jessie L. Simmons (5/11/
2001); also see, 79 FR 20384). The final rule corrects the proposed 
rule and, in so doing, makes final Sec.  1910.67(c)(2)(v) consistent 
with subpart V (Sec. Sec.  1910.269(g)(2)(iv)(C)(1) and 
1926.954(b)(3)(iii)(A) (79 FR 20640, 20700)).\87\
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    \87\ Stakeholders commenting to the proposed rule appeared to 
recognize that OSHA's reference to positioning systems might be an 
error (Exs. 174; 183). For example, ULCC pointed out that the 
proposed definition of positioning systems does not appear to be 
applicable to line clearance work from aerial lifts because 
employees are not working on an elevated vertical surface (Ex. 83).
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    OSHA received several comments on the proposed revision of Sec.  
1910.67(c)(2)(v) (Exs. 59; 174; 183; 207). Darren Maddox, with Central 
Alabama Electric Coop (CAEC), supported requiring the use of personal 
fall arrest systems when employees work from aerial lifts (Ex. 59). He 
pointed out positioning straps do not provide fall protection, and that 
CAEC's employees now use personal fall arrest systems when working in 
aerial lifts (Ex. 59). Edison Electric Institute, on the other hand, 
said OSHA should not require fall protection for employees working in 
bucket trucks (Ex. 207).
    The Utility Line Clearance Coalition (ULCC) and Tree Care Industry 
Association (TCIA) both recommended

[[Page 82670]]

that OSHA allow employers to use body belts and short lanyards (3-foot 
maximum length) when their employees work from aerial lifts (Exs. 174; 
183). TCIA contended that arborists and line-clearance tree trimmers 
(collectively referred to as ``line-clearance arborists'') often work 
in aerial lifts above high voltage wires and using body belts and 
lanyards provides the ``greatest protection'' against falling into 
energized power lines (Ex. 174). In addition, they said using a body 
belt with a short lanyard (i.e., 3 feet) \88\ ``provides for the 
shortest overall fall distance,'' which reduces free fall distances, 
and thus, fall arrest forces, as well as minimizing the risk of falling 
into power lines (Ex. 174). TCIA also said that body belts attached at 
the waist allow for ``the possibility of self-rescue,'' but did not 
provide further explanation (Ex. 174).
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    \88\ OSHA notes that final Sec.  1910.140(e)(1)(i)(B) requires 
that positioning systems must be rigged to prevent the worker from 
free falling more than 2 feet. Therefore, TCIA's recommendation that 
line-clearance arborists be allowed to use 3-foot lanyards is not 
permitted under the final rule. OSHA also notes that as of April 1, 
2015, Sec.  1926.954(b)(3)(iv) requires that work-positioning 
systems be rigged so workers cannot free fall more than 2 feet.
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    ULCC raised similar arguments supporting the use of body belts and 
lanyards when line-clearance arborists work from aerial lifts, 
particularly above power lines. They contended that using belts and 
lanyards in those situations has not resulted in undue risk to 
employees and requiring that employees use body harnesses, which 
typically have longer lanyards, would increase the risk of contact with 
power lines (Ex. 183). ULCC also argued that using body harnesses puts 
line-clearance arborists at greater risk of injury from falling into 
tree limbs and stubs from ``reduction cuts'' (Ex. 183). In addition, 
they contended line-clearance arborists feeding limbs and brush into 
chippers are a greater risk of serious injury or death because longer 
lanyards typically used with body harness could get dragged into the 
chipper.
    ULCC also argued that the proposed rule does not provide an 
explanation for eliminating the use of body belts and lanyards when 
working from aerial lifts and fails to provide fall protection options 
for line-clearance work performed from aerial lifts.
    TCIA and ULCC raised these same issues and arguments in the subpart 
V rulemaking and OSHA addressed them in great detail in the preamble to 
that final rule (79 FR 20383-88). OSHA did not find TCIA's and ULCC's 
arguments in the subpart V rulemaking to be convincing and nothing in 
their comments in this rulemaking changes OSHA's conclusion. Since 
TCIA's and ULCC's comments in this rulemaking are the same as those 
they made in the subpart V rulemaking, OSHA incorporates by reference 
the explanation OSHA provided in final subpart V and need not repeat 
that full discussion here. For the following reasons, consistent with 
final subpart V, OSHA has not adopted TCIA's and ULCC's recommendation 
that employers be permitted to use body belts and lanyards when their 
employees work from aerial lifts.
    First, OSHA does not find persuasive TCIA's and ULCC's argument 
that body harnesses (e.g., personal fall arrest systems) pose a greater 
hazard (e.g., falling into an energized power line) than body belts and 
lanyards when employees, including line-clearance arborists, work from 
aerial lifts. As mentioned in the explanation of Sec.  1910.140(d)(3) 
and closely examined in the construction fall protection rulemaking (59 
FR 40702-03), body belts do not provide the level of protection that 
full body harnesses do. Body belts, unlike harnesses, expose workers to 
greater fall arrest forces and suspension trauma and significant 
hazards of slipping out of the body belt. In addition, TCIA's 
recommendation that OSHA allow employers to use body belts with 3-foot 
lanyards, instead of the required 2-foot lanyard, would expose workers 
to even greater fall arrest forces. In addition, ULCC's admission that 
some member employers ``mandate full body harnesses and lanyards'' 
undercuts their argument that using body harnesses, instead of body 
belts, exposes workers to ``significantly increased risk, especially 
when working above energized power lines'' from an aerial lift (Ex. 
183).
    Second, TCIA's and ULCC's unsupported claim that body belts allow 
workers to self-rescue is not correct. To the contrary, body belts 
significantly reduce the possibility of self-rescue after a fall 
because of the increased probability of serious internal injuries 
sustained from the initial impact forces, from body belt suspension 
trauma (especially unconscious suspension), or both.
    Third, as discussed in detail in the preamble to final subpart V, 
OSHA does not consider the risk of falling into power lines to be as 
serious as TCIA and ULCC portray. Line-clearance arborists do not 
always work directly over power lines; they may work at the same 
height, below or to the side of power lines. In any event, stakeholders 
in the subpart V rulemaking said employers can reduce the risk of 
falling into power lines, without exposing workers to greater arrest 
forces and suspension trauma, by using personal fall arrest systems 
that have shorter lanyards (79 FR 20385).
    Fourth, ULCC's argument that using body harnesses with longer 
harnesses puts line-clearance arborists at risk of getting caught in a 
chipper is unpersuasive. The final rule does not require that line-
clearance arborists wear harness when they are not working on an 
elevated surface (i.e., when working on the ground). Therefore, 
employers can eliminate that risk by requiring that line-clearance 
arborists remove their harnesses when using the chipper.
    Employers also can reduce the risk by providing line-clearance 
arborists with harnesses that have a shorter lanyard.
    Fifth, final Sec.  1910.67(c)(2)(v), like subpart V (Sec.  
1910.269(g)(2)(iv)(C)(1) and Sec.  1926.954(b)(3)(iii)(A) (79 FR 20640, 
20700)) provides employers with two options for protecting employees 
working in aerial lifts. They may use either a personal fall arrest 
system or travel restraint system. As mentioned, employers can use 
personal fall arrest systems that have a short lanyard. Also, since 
travel restraint systems must prevent a fall of any distance, the final 
rule allows employers to use either a body belt or body harness with 
travel restraint systems. OSHA notes, however, that a travel restraint 
system rigged to allow free fall even a small distance (e.g., 2 feet) 
would not be an acceptable system under the final rule. For further 
discussion of the requirement that employers ensure employees use a 
personal fall arrest system or travel restraint system when working 
from an aerial lift, see preamble to final subpart V (79 FR 20383-88).

V. Final Economic and Final Regulatory Flexibility Screening Analysis

A. Introduction

    This collection of final standards governing occupational exposure 
to slip, trip, falling-object and fall hazards on walking and working 
surfaces is a ``significant regulatory action'' under Executive Order 
12866. Accordingly, the Office of Regulatory Analysis within OSHA 
prepared this Final Economic and Final Regulatory Flexibility Screening 
Analysis (FEA) for the final standard. In developing the FEA, OSHA, to 
the extent possible given the available resources, endeavored to meet 
the requirements of OMB's Circular A-4 (OMB, 2003), a guidance document 
for regulatory agencies preparing economic analyses under Executive 
Order 12866. In addition to adherence to Executive

[[Page 82671]]

Order 12866, OSHA developed this final rule with attention to the 
approaches to rulemaking outlined in Executive Order 13563.
    This FEA addresses issues related to the costs, benefits, 
technological and economic feasibility, and economic impacts (including 
small business impacts) of the Agency's final revisions to subpart D, 
Walking-Working Surfaces, and subpart I, Personal Protective Equipment. 
OSHA's final feasibility and impact analysis builds upon the 
preliminary economic analysis that OSHA developed in support of the 
proposed standard and the record developed in this rulemaking. The 
analysis also evaluates regulatory alternatives to the final rule. The 
Office of Information and Regulatory Affairs in the Office of 
Management and Budget reviewed this rule as required by Executive Order 
12866. Terminology, analytic methods, and standards appearing in a 
particular section of this FEA correspond to the source(s) of that 
section's requirements; for example, the legal concept of ``economic 
feasibility,'' which is a key subject of section V.G, is not recognized 
in E.O.s 12866 or 13563 or their associated guidance document, OMB 
Circular A-4. OSHA uses legal concepts, appropriate under the OSH Act 
and associated case law but distinct from any concepts in Circular A-4, 
in discussing economic feasibility (see Section III--Pertinent Legal 
Authority). Furthermore, OSHA discusses how benefit and cost estimates 
may differ given the differing analytic approaches set forth by the OSH 
Act, as interpreted in case law, and Circular A-4.
    The purpose of the FEA is to:
     Identify the establishments and industries potentially 
affected by the final rule;
     Estimate current exposures to slip, trip, and fall hazards 
in general industry, and assess the technologically feasible methods of 
controlling these exposures;
     Estimate the benefits of the rule in terms of the number 
of worker deaths and injuries that employers will prevent by coming 
into compliance with the standard;
     Evaluate the costs that establishments in the regulated 
community will incur to achieve compliance with the rule;
     Assess the economic impacts and the economic feasibility 
of the rule for affected industries; and
     Evaluate the principal regulatory alternatives to the 
final rule that OSHA considered.
    The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires that 
a final regulatory flexibility analysis (FRFA) be prepared if an agency 
determines that a rule will impose a significant economic impact on a 
substantial number of small entities. To determine the need for a FRFA, 
OSHA voluntarily prepared a final regulatory flexibility screening 
analysis that identifies and estimates the impacts of the final 
standard on small businesses. Based on the screening analysis, 
presented in the last section of this FEA, the Assistant Secretary 
certifies that the final rule will not have a significant economic 
impact on a substantial number of small entities.
    This FEA contains the following sections in addition to this 
Introduction:

 Assessing the Need for Regulation
 Industry Profile
 Benefits, Net Benefits, Cost Effectiveness, and Sensitivity 
Analysis
 Technological Feasibility
 Costs of Compliance
 Economic Impacts
 Final Regulatory Flexibility Screening Analysis
    To develop the FEA, OSHA relied considerably on (1) the record 
created throughout the history of this rulemaking, (2) an analysis by 
OSHA's contractor, Eastern Research Group (ERG) (ERG, 2007), and (3) 
OSHA's Preliminary Economic Analysis (PEA) supporting the Walking-
Working Surfaces NPRM and published in the Federal Register notice 
announcing the proposed standard (OSHA, 2010).
1. Reasons for Agency Action
    Earlier in this preamble OSHA discussed the major revisions to the 
existing standards for walking-working surfaces and personal protective 
equipment (subparts D and I of part 1910) finalized by this rulemaking. 
OSHA designed the final standards to prevent a significant number of 
slips, trips, and falls that result in injuries and fatalities in 
general industry, including falls from ladders, roofs, scaffolds, and 
stairs.
    The final standard also addresses hazards associated with falling 
objects. However, as noted below in Section D. Benefits, Net Benefits, 
Cost Effectiveness, and Sensitivity Analysis, and Section F. Costs of 
Compliance, because the final standard introduces no additional burden 
on employers beyond existing requirements, and because there were no 
comments in the record suggesting that additional economic impacts 
would result, OSHA expects that the final falling-object provisions 
will involve no new costs or benefits.
    Some examples from OSHA's inspection database (OSHA, 2012a and 
2007), provided in the following paragraphs, best illustrate the kinds 
of accidents the standards will prevent, and how the revised standards 
will prevent them.
    A repairperson for a specialty metals producer in Pennsylvania was 
replacing a water cooling panel (approximately 8-ft. high by 12-ft. 
long) on a basic oxygen furnace vessel. To access the panel, he placed 
a ladder on an 8-in. diameter pipe. When the employee attempted either 
to gain access to the panel or to secure the ladder, he fell 22 feet to 
the ground. He sustained a blunt-force trauma injury to his head and 
died. OSHA cited and fined the employer for a violation of Sec.  
1910.23(c)(1), Protection of open-sided floors, platforms, and runways, 
and Sec.  1910.25(d)(2)(i), Use of ladders, along with other standards. 
OSHA believes that the clarifications of the requirements for the safe 
use of ladders and the duty to have fall protection will prevent 
accidents such as the one described above (OSHA, 2007, Inspection No. 
123317679).
    In a window cleaning operation, two employees were working from 
boatswain's chairs suspended from a roof by two transportable roof 
rollers; they lowered their chairs down the side of the building using 
controlled-descent devices. A third employee was on the roof pushing 
the rollers back and forth to move his coworkers from window to window. 
The third employee was moving the roller on one end of the building 
when one of its wheels slipped off the edge of the parapet wall, 
causing the rollers, which were tied together, to fall between six and 
seven stories to the ground. The first two employees, with their 
lifelines attached only to the suspension point on the rollers, also 
fell to the ground and sustained serious injuries. When one of the 
rollers went over the edge, it catapulted the third employee off the 
roof; that employee fell approximately 84 feet to the ground and died 
from the fall. In the investigation, OSHA determined that the employer 
did not anchor the rollers to the roof, and cited the employer for 
violating the general duty clause (Section 5(a)(1)) of the OSH Act. 
OSHA believes that compliance with the requirements for rope descent 
systems in the final standard (Sec.  1910.27(b)) will help to prevent 
this type of accident (OSHA, 2007, Inspection No. 303207633).
    A 49-year-old service technician fractured five vertebrae and 
eventually died from the injuries received when he fell 11 feet from a 
fixed ladder to a concrete landing while performing air-conditioning 
service work on the roof of a shopping mall. OSHA's investigation of 
the August 24, 2004, accident identified the likely cause as the

[[Page 82672]]

absence of uniform spacing between the ladder rungs throughout the 
climb (the space between the top two rungs/steps was 28 inches, whereas 
the space between lower rungs was much narrower). Section 1910.23(b)(2) 
in the final standard requires that, with a few exceptions, the spacing 
for rungs, cleats, and steps of ladders be not less than 10 inches (25 
cm) apart nor more than 14 inches (36 cm) apart, as measured between 
the center lines of the rungs, cleats, and steps. OSHA believes that 
compliance with this provision will prevent accidents such as the one 
described here (OSHA, 2007, Inspection No. 308003953).
    As a final example, an employee in a South Dakota feed mill was 
atop a soybean storage bin gauging the level of the contents when he 
fell approximately 24 feet onto a concrete surface. The employee 
suffered head and upper body injuries that resulted in his death. The 
subsequent OSHA investigation resulted in citations for violations of 
the general duty clause and provisions in existing subpart D regulating 
floors, platforms, and railings. OSHA believes that the final revisions 
to subpart D will remove any ambiguity in the scope or purpose of the 
rule, which will prevent falls from storage bins and related surfaces 
(OSHA, 2007, Inspection No. 102761012).
    The accidents described above represent a small sample of the many 
slip-, trip-, and fall-related fatality and injury cases that OSHA's 
final standards are designed to prevent. Appendix A presents a larger 
set of preventable fatal workplace accidents taken from the OSHA 
Integrated Management Information System (IMIS) database for 2006-2010 
that involve slips, trips, or falls.\89\ To compile the accident 
dataset, OSHA searched the IMIS database for fatal work place injuries 
in general industry resulting from falls. The search excluded SIC codes 
for Construction, Agriculture, and Water Transportation/Maritime and 
produced 974 records. Of those 974 records, the dataset in Appendix A 
focuses on the following types of falls: (1) Falls from ladders 
(ladders type unspecified, fixed ladders, extension ladders, step 
ladders, rolling ladders, other ladders); (2) Falls from scaffolds 
(scaffolds, scaffold ladders); (3) Falls from roofs (roofs, falls 
through skylights); (4) Falls from walking surfaces (slips, trips); (5) 
Falls from stairways; (6) Falls involving window washing; (7) Falls 
involving chimney work; (8) Falls involving manholes; and (9) Other 
types of falls. These categories alone represented 290 of the possible 
974 fatal fall incidents that would be covered by the D&I standard.
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    \89\ The IMIS database contains information on over 2.5 million 
inspections conducted since 1972. The information is continually 
being updated with new data originating from OSHA federal and state 
enforcement offices.
---------------------------------------------------------------------------

    When establishing the need for an occupational safety and health 
standard, OSHA must evaluate available data to determine whether 
workers will suffer a material impairment of their health or functional 
capacity resulting from exposure to the safety or health hazard at 
issue. Prior to promulgating a standard, the Agency also must determine 
that ``a significant risk of harm exists and can be eliminated or 
lessened by a change in practices.'' See Industrial Union Dep't v. 
American Petroleum Institute, 448 U.S. 607 (1980). See also 58 FR 
16612, 16614, (March 30, 1993) (OSHA must conclude that the standard it 
is promulgating will substantially reduce a significant risk of 
material harm).
    OSHA determined that the best available data for quantitatively 
estimating the risks associated with slips, trips, and falls in general 
industry come from the Bureau of Labor Statistics (BLS) injury and 
illness survey and census. OSHA relies on federal survey and census 
data from recent years to determine the risk to similarly exposed 
employees across industry in analyzing other safety standards (e.g., 
Confined Spaces in Construction at 80 FR 25366 (May 4, 2015)).
    Other regulatory and non-regulatory entities for research and 
policymaking widely accept and use these data sets.\90\
---------------------------------------------------------------------------

    \90\ See, for example, NIOSH, 2004, and FMCSA, 2010.
---------------------------------------------------------------------------

    As previously discussed in section II of this preamble (Analysis of 
Risk), OSHA determined that hazards associated with walking and working 
on elevated, slippery, or other surfaces pose significant risks to 
employees, and that the revisions to subparts D and I are reasonable 
and necessary to protect affected employees from those risks. Based on 
the BLS data showing the number of injuries and fatalities currently 
occurring and OSHA's judgments about the percentage of these injuries 
and fatalities that would be averted as a result of the standards, the 
Agency estimates that full compliance with the revised walking-working 
surfaces standards will prevent 29 fatalities and 5,842 lost-workday 
injuries annually. These benefits constitute a substantial reduction of 
significant risk of material harm for the exposed population of 
approximately 5.2 million employees in general industry.
2. Feasibility
    The Agency must show that the standards it promulgates are 
technologically and economically feasible. (See 58 FR 16612.) A 
standard is technologically feasible if the protective measures 
required already exist, available technology can bring the measures 
into existence, or reasonable designs and developments in technology 
can create the measures.\91\ Protective measures employers take to 
comply with safety standards generally involve the use of engineering 
and work-practice controls. Engineering controls include, for example, 
ladder safety systems, guardrails, toeboards, or other devices or 
barriers that protect employees from exposures to slip, trip, and fall 
hazards. Work-practice controls are techniques that employees use to 
perform their jobs (for example, safe climbing techniques on ladders). 
Employers also can use administrative controls (such as job rotation) 
and personal protective equipment (PPE) (such as harnesses and 
lanyards) to comply with safety standards.
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    \91\ See Society of the Plastics Industry v. OSHA, 509 F.2d, 
1301, 1309 (1975); USWA v. Marshall, 647 F.2d, 1189 (1980); American 
Textile Manufacturers v. Donovan, 452 U.S. 490 (1981); and Building 
and Construction Trades Dept., AFL-CIO v. Brock, 838 F.2d 1258 
(1988)).
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    A standard is economically feasible if the cost of meeting it does 
not threaten the existence or competitive structure of an industry. An 
OSHA standard may be economically feasible even if it imposes costs 
that will put some marginal firms out of business.\92\ As discussed in 
more detail below, OSHA concludes that the final revisions to subparts 
D and I are both economically and technologically feasible.
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    \92\ See Industrial Union Dept. v. Hodgson, 499 F.2d 467 (1974); 
USWA v. Marshall, 647 F.2d, 1189 (1980); and American Textile 
Manufacturers v. Donovan, 452 U.S. 490 (1981)).
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3. Methodological Considerations in Development of the FEA
    OSHA prepared an economic analysis to estimate the benefits and 
costs of the revisions to subparts D and I as required by E.O. 12866. 
Since 2002, under the direction of the Office and Management and 
Budget, the Agency ``monetized'' the value of the injuries, illnesses, 
and fatalities that new standards will prevent, i.e., it monetized the 
value of expected benefits. Monetized values provide a common metric 
for both benefits and costs. When preparing an economic analysis in 
support of a proposed or final rule that is economically significant 
under E.O. 12866, OSHA presents annual estimates of benefits and costs. 
The Agency

[[Page 82673]]

believes that this approach offers the simplest and clearest way to 
assess the economic effects of its standards. Computing annual 
estimates focuses the Agency's analysis on information from current 
conditions and recent years, which the Agency deems the best, i.e., 
most accurate and reliable, information. OSHA typically assumes a ten 
year annualization period for one-time costs associated with a 
rule.\93\ In the case of this final rule for subparts D and I, adding 
additional years to the period of the analysis would not change any 
major policy conclusions.
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    \93\ As discussed later in this FEA, fixed ladders, cages, and 
wells may have a functional life longer than ten years. However, the 
fall protection equipment and other safety controls applied in this 
FEA are assumed to have a life of ten years, and the cost analysis 
for these controls reflects that lifespan. The Agency estimated that 
fixed ladders have an average life of 30 years. Replacement of the 
fixed ladders would occur evenly across the 30-year period, and, 
with a phase-in date 20 years after publication, some ladders still 
would require replacement anywhere from 1 to 10 years after the 20-
year phase-in date. OSHA calculated first-year costs (at Year 0) of 
installing ladder safety systems for the annual percentage (3.3 
percent each year) of the total stock of fixed ladders (24' to 30' 
in height) that from Year 21 to Year 30 will no longer meet the 
requirements of the standard. Then OSHA used a seven percent 
discount rate to annualize over 10 years. First-year costs total 
$8.5 million and annualized costs total $1.2 million. For further 
details, see Ex. [OSHA Excel Workbook], tabs retrofit_28_calc and 
retrofit_28.
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    To characterize the effects of a new standard, the Agency estimates 
the costs and benefits expected to accrue as regulated entities move 
from the current state of affairs to full compliance with the rule. 
Accordingly, OSHA does not include injuries or fatalities already 
preventable through compliance with existing regulations in its 
assessment of the benefits expected from compliance with the new 
standard. Similarly, the Agency does not include the cost of complying 
with existing standards in its assessment of what it will cost 
employers to comply with the new standard. The Agency assumes that all 
employers will fully comply with the standard. OSHA's analysis also 
assumes that employers incur all costs in the first year following 
promulgation of the final standard (with ongoing costs incurred 
annually beginning in Year 1), and that benefits result immediately.
    The Agency employs a ``willingness-to-pay'' (WTP) methodology to 
estimate benefits. Data from the BLS provide the number of expected 
injuries and fatalities occurring currently and assumed to continue 
into the future in the absence of this regulatory standard, OSHA makes 
expert judgments about the percentage of these injuries and fatalities 
averted as a result of the standard, and the Agency uses WTP estimates 
from the extant literature to assign monetary values to these injuries 
and fatalities. OSHA bases its estimates of willingness to pay on 
empirical studies that statistically analyze the effects of fatality 
and injury rates on wage rates to arrive at individuals' trade-off 
between higher wages and an incremental increase in occupational risk. 
That trade-off allows economists to calculate the implicit value of a 
statistical life (VSL).\94\ Many government regulatory authorities, 
such as the National Highway Traffic Safety Administration and the 
Environmental Protection Agency, use the VSL as a metric, but it is 
particularly appropriate for occupational regulations since it is 
derived from occupational risks and wages.
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    \94\ For example, if workers are willing to pay $50 each for a 
1/100,000 reduction in the probability of dying on the job, then the 
imputed value of an avoided fatality is $50 divided by 1/100,000, or 
$5,000,000. Another way to consider this result is to assume that 
100,000 workers made this trade-off. On average, $5,000,000 would 
save one life.
    For discussion on WTP methodologies, see Viscusi and Aldy 
(2003).
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    The primary alternative to a WTP approach is a ``cost-of-injury'' 
(COI) approach. The COI approach accounts for the various costs to all 
parties associated with an injury or fatality, including medical costs, 
the costs of work disruption from accidents and accident 
investigations, indirect costs to employers (e.g., absenteeism, hiring 
costs), lost wages or job opportunities, and rehabilitation expenses. 
The COI approach results in ascribing costs and benefits to many 
involved entities: The employer, the employee, workers' compensation 
programs, health insurance providers, federal disability programs, 
governmental bodies, and taxpayers, among others. A COI approach does 
not capture the values of pain and suffering, impacts on families, or 
similar parameters, and for that reason, the Agency believes that WTP 
is superior.
    The Agency's calculation of benefits and costs adopts the 
perspective of society as a whole. Compliance costs are borne directly 
by affected employers but these costs may ultimately be borne by a wide 
variety of parties including employers, consumers, government, and 
employees. Benefits accrue to employees, families, insurers, and 
government, as well as to employers.
4. OSHA's Estimates of Benefits, Costs, and Net Benefits
a. Introduction
    Employees throughout general industry are exposed to slip, trip, 
and fall hazards that cause serious injury and death. OSHA estimates 
that, on average, approximately 202,066 serious (lost-workday) injuries 
and 345 fatalities occur annually among workers directly affected by 
the final standard. Although better compliance with existing safety 
standards may prevent some of these incidents, research and analyses 
conducted by OSHA found that many preventable injuries and fatalities 
would continue to occur even if employers were complying fully with the 
existing standards. Even if there were full compliance with the 
existing standards, OSHA estimates that full compliance with the final 
standard will prevent an additional 5,842 lost-workday injuries and 29 
fatalities each year.
    An additional benefit of this rulemaking is that it will provide 
updated, clear, and consistent safety standards for walking and working 
surfaces and personal fall protection equipment. Most of the existing 
OSHA standards for walking-working surfaces are over 30 years old and 
inconsistent with both national consensus standards and more recently 
promulgated OSHA standards addressing fall protection.
    Presently, OSHA's standards for fall protection on walking-working 
surfaces in general industry differ from the comparable standards for 
construction work. In most instances, employees use similar work 
practices to perform similar tasks, irrespective of whether they are 
performing construction or general industry work. Whether OSHA's 
construction or general industry standards apply to a particular job 
depends on whether the employer is altering the system (construction 
work) or maintaining the system (general industry work). For example, 
replacing an elevated ventilation system at an industrial site would be 
construction work if it involves upgrading the system, but general 
industry work if it involves an in-kind replacement. Since the work 
practices used by the employees would most likely be identical in both 
situations, it would ease compliance if OSHA's general industry and 
construction standards were as consistent as possible. Under OSHA's 
existing requirements, however, different requirements might apply to 
similar work practices, e.g., an employer overhauling two or more 
ventilation systems may have to comply with two different sets of OSHA 
requirements if one project is considered construction and another 
general industry. The existing inconsistencies between the construction 
and general industry standards make it difficult for employers to 
develop appropriate work practices for their employees. Consequently, 
employers and

[[Page 82674]]

employees told OSHA that they would like the two standards to match 
more closely. This final rule achieves that result.
    OSHA neither quantified nor monetized several other benefits of the 
final standard. First, OSHA did not estimate the number of fall 
injuries prevented that do not result in lost workdays. Second, OSHA 
did not estimate the improvements in efficiency of compliance 
associated with clarifying the existing rule and making it consistent 
with current national consensus standards.
    OSHA's benefit estimates are most sensitive when it comes to 
estimating the percentage of current injuries and fatalities that full 
compliance with the final standard will avoid. The true benefits of the 
final standard depend on how well the cases reviewed represent actual 
fall-related fatalities in general industry.
    The Agency believes that its estimate of about 345 annual 
fatalities in general industry involving slips, trips, and falls is 
more certain than the estimate of the percentage of fatalities avoided 
because the estimate of the annual number of baseline fatalities comes 
from seven years of recent incident data that corroborate eleven prior 
years of incident data. OSHA's estimate of fatalities avoided is more 
sensitive because it is based on professional judgment after reviewing 
incident reports in the record. Moreover, OSHA believes that its 
benefit estimates have a tendency toward underestimation, as training 
and work practices adopted in an effort to comply with the final rule 
will likely increase the use of safety equipment and safer work 
techniques, thereby further reducing fatalities and injuries.\95\
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    \95\ OSHA notes that the literature on the effectiveness of 
training indicates positive benefits, but the extent of benefits 
varies depending on intervention methodology and other factors. See 
research by the National Institute for Occupational Safety and 
Health: Cohen and Colligan, 1998, and NIOSH, 2010 (https://www.cdc.gov/niosh/docs/2010-127/pdfs/2010-127.pdf).
---------------------------------------------------------------------------

    The impacts exhibit below presents a summary of the annualized 
costs and benefits for each section of the final standard, assuming a 
discount rate of seven percent. In addition to estimating annualized 
costs using a discount rate of seven percent, OSHA, for sensitivity 
purposes, also used OIRA's recommended alternative discount rate of 
three percent. Under the alternative scenario of a three-percent 
discount rate, OSHA estimates that annualized costs would decline from 
$305.0 million to $297.0 million. For both this scenario and for the 
primary (seven-percent rate) scenario, OSHA assumed that employers will 
incur all costs (first-year and recurring) on implementation of the 
final standard. OSHA also is assuming that the benefits outlined in 
this section will accrue once the rule takes effect. Section D of this 
FEA (Benefits, Net Benefits, Cost Effectiveness, and Sensitivity 
Analysis) describes in detail the other cost-related uncertainties.

BILLING CODE 4510-29-P

[[Page 82675]]

[GRAPHIC] [TIFF OMITTED] TR18NO16.100


[[Page 82676]]


[GRAPHIC] [TIFF OMITTED] TR18NO16.101


[[Page 82677]]


BILLING CODE 4510-29-C
b. Changes From OSHA's Preliminary Economic Analysis to This Final 
Analysis
    As shown below in the summary table for Section B of this FEA 
(Assessing the Need for Regulation), OSHA projects that the final rule 
will produce annual benefits of 29 fatalities and 5,842 lost-workday 
injuries prevented, while annualized costs will total $305.0 million. 
OSHA's preliminary estimate of benefits (in the Preliminary Economic 
Analysis (PEA) for the proposed rule) was 20 fatalities and 3,706 lost-
workday injuries prevented, and the Agency's preliminary estimate of 
costs in the PEA totaled $173.2 million. The later sections of this FEA 
explain the reasons for these changes in detail. To summarize, OSHA 
notes that the primary factors contributing to larger benefits and 
costs (in relation to the PEA) are: (1) Explicit requirements for 
ladder safety systems for fixed ladders and structures with step bolts, 
guardrails for slaughtering platforms, and roof anchor systems for 
rooftop operations; (2) additional time allotted for inspection of 
walking-working surfaces for dust and other hazardous substances, 
consistent with a clarification in the regulatory text; and (3) an 
increase in the number of workers in outdoor advertising and other 
activities who will need training in using fall protection equipment.
c. Alternative Regulatory Approaches
    To determine the appropriate approach for addressing the 
occupational risks associated with slips, trips, and falls in general 
industry, OSHA considered many different factors and potential 
alternatives. The Agency examined the incidence of injuries and 
fatalities, and their direct and underlying causes, to ascertain 
revisions to the existing standards. OSHA reviewed these standards, 
assessed current practices in the industry, collected information and 
comments from experts, and scrutinized the available data and research.
    OSHA faces several constraints in determining appropriate 
regulatory requirements. Under Section 3(8) of the OSH Act, OSHA 
standards must be ``reasonably necessary or appropriate to provide safe 
or healthful employment and places of employment.'' Also, under Section 
6(b)(8) of the OSH Act, to the extent an OSHA standard differs 
substantially from existing national consensus standards, the Agency 
must explain why the OSHA standard will better accomplish the purposes 
of the OSH Act. As noted elsewhere, OSHA standards also must be 
technologically and economically feasible and cost effective, in the 
sense of the term as used in the OSH Act as interpreted by the 
courts.\96\ Section IV, Summary and Explanation of the Final Rule, 
earlier in this preamble, provides a full discussion of the basis for 
the regulatory requirements in the final rule. The Final Regulatory 
Flexibility Screening Analysis later in this section of the preamble 
discusses the regulatory alternatives considered by OSHA. In that 
section, Table V-34 presents impacts associated with regulatory 
alternatives for selected provisions of the final standard. OMB's 
Circular A-4, Regulatory Analysis, recommends that agencies ``should 
analyze at least three options: The preferred option; a more stringent 
option that achieves additional benefits (and presumably costs more) 
beyond those realized by the preferred option; and a less stringent 
option that costs less (and presumably generates fewer benefits) than 
the preferred option'' (p. 16). This final rule presents the preferred 
option. The less stringent alternative, rejected by OSHA, would reduce 
the number of fall-hazard categories requiring training; however, the 
cost of this alternative would remain significant (but below the cost 
of $74.2 million for the preferred alternative training requirements), 
with a reduction in benefits relative to the preferred alternative. 
OSHA did not explicitly quantify this alternative.
---------------------------------------------------------------------------

    \96\ The OSHA Act as interpreted by the courts requires that 
regulations be cost effective in the sense that no other alternative 
in the record addressing the same hazards has an equivalent 
reduction in the risk associated with those hazards; that is, 
reduces those risks to the same extent at lower cost (Am. Textile 
Mfrs. Inst. v. Donovan, 453 U.S. 490, 514 n. 2 (1981); UAW v. OSHA, 
37 F.3d 665, 668 (D.C. Cir. 1994)). This is not a wide ranging 
invitation to compare cost effectiveness across many risks but a 
narrow assurance that the exact same effects could not be achieved 
at less cost. An analysis of regulatory alternatives is provided in 
Section V.H.8.
---------------------------------------------------------------------------

    The more stringent alternative would require that employers provide 
cages, wells, landing platforms, and ladder safety devices for all 
fixed ladders; the cost of this alternative would be highly 
significant, while the incremental benefits would be modest relative to 
the preferred alternative. OSHA notes that the 1990 NPRM estimated the 
annualized cost for cages, wells, and other safety devices for fixed 
ladders to be $1.6 billion in 1990 dollars. Evidence in the record 
suggests that cages and wells are an outdated technology that do not 
provide adequate fall protection for workers climbing ladders, and that 
ladder safety devices are a recent development that provide a feasible 
alternative, or complement, to cages and wells (Exs. 113; 198). 
Therefore, if employers could not use such devices, the more stringent 
alternative requiring cages, wells, and landing platforms would be far 
more expensive than to the final rule.

B. Assessing the Need for Regulation

    OSHA previously considered non-regulatory alternatives and 
established the need for regulation of walking-working surfaces when it 
promulgated the standard for fall protection in construction (59 FR 
40672). The Agency asserts that the same need for regulation applies 
when employees in general industry are engaged in tasks on walking-
working surfaces. Employees in general industry performing work on 
floors, other ground-level surfaces, or at heights are exposed to a 
variety of significant hazards--particularly slips, trips, and falls--
that can and do cause serious injury and death. Although some of these 
incidents might have been prevented by better compliance with existing 
safety standards, research and analyses conducted by OSHA have found 
that many preventable injuries and fatalities could continue to occur 
even if employers fully complied with the existing standards. Relative 
to full compliance with the existing standards, OSHA estimates, in 
Section D of this FEA, that full compliance with the final standard 
would prevent an estimated additional 5,842 injuries and 29 fatalities 
annually.
    Executive Order 12866 provides that ``[e]ach agency shall identify 
the problem that it intends to address [via regulation] . . . 
including, where applicable, the failures of private markets.'' 
Executive Order 13563 reiterates that requirement. In the absence of 
regulations, market failures can prevent free markets from providing 
the levels of occupational safety--and particularly the levels of 
safety for workers affected by this standard--that would maximize net 
benefits to society.
    In the absence of regulation, many employees would simply be 
unaware of the hazards that walking-working surfaces present or the 
procedures to follow to protect against such hazards. Even those 
employees with years of experience working at elevated or other 
surfaces may lack training on fall protection, information about 
specific fall hazards, or needed equipment for preventing or limiting 
the impact of falls.
    The final standard for walking-working surfaces in general industry 
addresses these problems. The benefits analysis presented in Section D 
of this FEA shows that many accidents are

[[Page 82678]]

potentially preventable with better information on worksite conditions 
and the provision of the proper procedures and equipment for fall 
protection. In cases where employers do provide training on fall 
prevention, that training may be incomplete or ineffective in the 
absence of a specific set of requirements to train to. OSHA's analysis 
of benefits and costs, conducted with an orientation toward the OSH Act 
and associated case law, shows that the benefits of the final standard 
significantly exceed its costs.
    To better understand the market failures that create the need for 
this rule, it is necessary to examine the economic incentives that 
underlie employer decisions with respect to workplace safety and 
health. An employee typically accepts the risks associated with a 
particular job in return for two forms of compensation--(1) a wage 
premium for assuming that risk, and (2) expected compensation for 
damages in the event of occupational injury or illness. The rational 
profit-maximizing employer will make investments in workplace safety to 
reduce the level of risk to employees only if such expenditures result 
in at least an offsetting reduction in the employer's payouts of wage 
premiums for risk and compensation for damages. To the extent that the 
sum of the costs of wage premiums and compensation for damages 
accurately represents the total damages associated with workplace 
accidents, the rational employer will accordingly arrive at the 
socially optimal level of accident prevention from an economic 
efficiency viewpoint.
    Consequently, the major possible sources of market failure, 
resulting in an ``under-provision'' of health and safety, would be 
either: (1) The existence of occupational accident costs that are borne 
neither by the employee nor by the employer or (2) the wage premiums or 
compensation for damages are not fully responsive to changes in 
employer-specific workplace risk. Both cases apply here.
    In the first case, there are some occupational injury and illness 
costs that are incurred by neither the employer nor the employee. For 
instance, neither of those two parties has a vested interest in Federal 
and State taxes that go unpaid as a result of an employee injury. Such 
taxes typically represent 15 percent (for Social Security alone) to 26 
percent of the total value of the income loss to the employee (IRS, 
2013; Urban Institute/Brookings, 2012).\97\ Tax losses are likely to be 
significant because (1) workers' compensation payments are not subject 
to Federal income or Social Security taxes (IRS, 2012), and (2) many 
studies have found that income losses not compensated by workers' 
compensation are significant (NASI, 2012). (There are some other 
possible incentive effects with respect to tax policy that might either 
encourage or discourage safety, but they represent a small percentage 
of the total value of a statistical life or injury by comparison.)
---------------------------------------------------------------------------

    \97\ The average federal tax rate for 2009 for the middle 
quintile of household income was 11.1 percent (Urban Institute/
Brookings, 2012).
---------------------------------------------------------------------------

    In the second case, as discussed below, the costs employers pay in 
compensation for damages or wage premiums are not fully responsive to 
changes in employer-specific workplace risk.
    Most employers cover--and are required to cover--compensation for 
injured employees through workers' compensation insurance. (Some very 
large employers may self-insure in some states.) States highly regulate 
premiums for workers' compensation insurance and generally employ a 
combination of a class rating and an experience rating in deriving 
premiums (NCCI, 2013; Ashford, 2006). The class rating is based on the 
average risk for employees in the same occupations as those working for 
the employer. The basis of the experience rating is the employer's 
actual workers' compensation claims over the past several years. Very 
small firms are almost entirely class-rated; even medium-sized firms 
are partly class-rated; and it will take even firms that are fully 
experience-rated several years before their insurance premium levels 
fully reflect any change in their workplace safety performance.\98\ As 
a result, most employers will not realize fully or promptly the gains 
from their expenditures to avoid workplace injury, illness, and 
fatality risks in the form of reduced workers' compensation premiums. 
The result is an insufficient level of worker protection from a 
societal perspective.
---------------------------------------------------------------------------

    \98\ This outcome, of course, reflects an accounting point. 
Premiums due to class rating, by definition, do not change with an 
individual employer's injury experience. There is some empirical 
evidence, using a difference in differences methodology, that 
(small) firms that move from class to experience rating decrease 
their total claims by 8 to 12 percent (Neuhauser et al., 2013).
---------------------------------------------------------------------------

    Furthermore, workers' compensation covers only a small fraction of 
most estimates of the willingness to pay to prevent a fatality.\99\ 
Additionally, workers' compensation payments do not fully compensate 
injuries in that workers' compensation provides no payments for pain 
and suffering or losses other than lost wages or medical expenses 
associated with injuries. There is extensive evidence that workers' 
compensation does not even fully restore wages lost as a result of 
long-term disability (Ashford, 2006).
---------------------------------------------------------------------------

    \99\ While workers' compensation varies by state, Leigh and 
Marcin (2012) estimate that the average indemnity benefits for a 
fatality are $225,919, far less than willingness-to-pay estimates. 
For example, as explained in Section D of this FEA, OSHA uses a 
willingness-to-pay measure of $8.4 million per life saved in 2010 
dollars. Other agencies use different estimates, but all the values 
are in the millions of dollars.
---------------------------------------------------------------------------

    Having to pay wage premiums for risk is another economic incentive 
for employers to mitigate occupational risk. However, wage premiums do 
not respond to changes in risk level very strongly, due to information 
asymmetries. For an employer to have an adequate incentive to implement 
measures that will prevent workplace accidents, it is not sufficient 
that employees simply know that their work is dangerous, or even know 
quantitatively that their occupation has a given risk. Employees must 
know the exact nature and likely quantitative effects of their 
employer's safety measures and systems; have a reasonable expectation 
that their employer will continue to provide existing safety measures 
in the future; and be able to act on their knowledge of risk by readily 
changing workplaces or changing wage demands in response to differences 
in levels of risk.\100\ OSHA believes that even skilled workers exposed 
to the risks of slips, trips, and falls (including some persons injured 
in accidents preventable by the final rule who fall in that category) 
lack such detailed employer-specific knowledge or the ability to act on 
it. Further, employees who typically work at a variety of different 
sites, including sites controlled by multiple employers, will find it 
particularly challenging to determine future risk levels, as these 
levels will vary from site to site.
---------------------------------------------------------------------------

    \100\ Furthermore, bargaining power differences or external 
constraints must not interfere in the wage setting process--as they 
do in circumstances of monopsony or multiemployer collective 
bargaining agreements, for example. Bargaining power differences may 
occur, for example, in small communities where a single manufacturer 
may be the employer for certain kinds of skills, or the more general 
issue that an employee's firm specific skills (such as understanding 
of unique processes or equipment) are in demand by only a single 
employer.
---------------------------------------------------------------------------

    In summary, OSHA believes that: (1) The provisions of the final 
rule are necessary to assure that employees have the information, 
procedures, and equipment they need to protect themselves; (2) neither 
employers nor

[[Page 82679]]

employees absorb the full costs of occupational injuries and 
fatalities; and (3) wage premiums and workers' compensation insurance 
are not sufficiently responsive to changes in risk to assure that 
employers will reduce risk to the socially optimal level. The rule is, 
therefore, necessary to address market failures that result from 
externalities and information asymmetries that lead to the provision of 
insufficient levels of worker safety.

C. Profile of Affected Industries, Firms, Workers, and Other Factors of 
Production

1. Introduction
    This section presents OSHA's profile of the firms, establishments, 
and employees within the industries affected by OSHA's revision to 29 
CFR part 1910, subparts D and I. The Agency based this profile on data 
assembled and organized by its contractor, Eastern Research Group (ERG, 
2007), and updated using more recent data from the same data series 
used previously.
2. Affected Industries and Employees
    Revised subparts D and I apply to employers and industries covered 
by OSHA's standards for general industry in 29 CFR part 1910. 
Similarly, all other subparts in part 1910 affected by these revisions 
to OSHA's walking-working surfaces standards would impose requirements 
on employers in general industry under OSHA's jurisdiction.\101\ The 
general industry category excludes establishments in the agriculture, 
construction, maritime (longshoring, marine terminal, and shipyards), 
and mining industries (except for oil and gas extraction). Also 
excluded from the final standard are employee tasks on surfaces that 
fall outside of OSHA's jurisdiction due to location or operational 
status, or those tasks that are subject to unique industry-specific 
fall protection requirements addressed elsewhere in part 1910, 
including Sec.  1910.268, Telecommunications, and Sec.  1910.269, 
Electric power generation, transmission, and distribution. An example 
of a jurisdictional category excluded from the scope of the final rule 
based on location or operational status is employee exposure to fall 
hazards when railroad rolling stock is traveling on rails or trucks are 
traveling on highways; the Department of Transportation regulates these 
operations.
---------------------------------------------------------------------------

    \101\ For example, subpart F--Powered Platforms, Manlifts, and 
Vehicle-Mounted Work Platforms, would be affected by the revisions 
to subparts D and I. For a compilation of all standards affected by 
these revisions, see the Final Regulatory Text at the end of this 
document.
---------------------------------------------------------------------------

    The walking-working surfaces covered by the final standards are 
present in nearly every establishment. Therefore, OSHA assumes that the 
number of establishments and employees potentially affected by subpart 
D includes all establishments and employees in general industry. Table 
V-1 shows the total number of establishments and employees potentially 
affected by revisions to subpart D, with the data listed in order by 
the North American Industry Classification System (NAICS) 4-digit 
industry code (OMB, 2007). Relying on the U.S. Census' Statistics of 
U.S. Businesses for 2007, OSHA estimates that the final standard will 
affect 6.9 million establishments employing 112 million employees; the 
comparable figures in the PEA were 6.7 million establishments and 112 
million employees, based on 2006 data. Table V-1 also provides economic 
profile statistics for the industries covered by the final standard.
    For purposes of estimating training requirements with respect to 
ladders, OSHA estimated that these provisions would apply to the 5.2 
million employees engaged in construction, installation, maintenance, 
repair, and moving operations in general industry. These employees 
represent the main group of workers affected by the final standards; 
however, the final standards may affect employees doing other types of 
operations and some general industry employees engaged in installation, 
maintenance, and repair operations will not be affected. Therefore, to 
estimate the population affected, OSHA identified general industry 
employees in occupational codes involving construction, installation, 
maintenance and repair. There certainly are ladder users in other 
occupations, but the occupations OSHA has included also include many 
persons whose work typically would not involve the use of ladders 
(e.g., computer repair, electronics repair, or construction work such a 
plumbing or carpet repair). As a result, while the OSHA list of 
occupations examined for purposes of costing ladder training may not 
include all possible persons receiving such training, it is balanced by 
the inclusion of some occupations that will not need training. This 
approach assumes that employees in construction occupations, but 
employed by general industry employers rather than construction 
employers, routinely engage in what OSHA labels as maintenance (i.e., a 
general industry activity) rather than construction activities.
    In the PEA, OSHA used Census \102\ data on payroll and receipts to 
estimate average revenue per establishment in 2006 for each 4-digit 
NAICS industry. For this FEA, revenue data for 2007 were available from 
Census's Statistics of U.S. Businesses; Table V-1 reports these revenue 
data as average receipts per establishment by 4-digit NAICS industry in 
Table V-1.\103\
---------------------------------------------------------------------------

    \102\ ``Census'' refers to the U.S. Census Bureau.
    \103\ At the time the Agency was developing this FEA, the most 
recent year for detailed industry-specific revenue was 2007 
Statistics of US Businesses. In the years since that date the US 
economy has experienced a recession and a recovery. Because new 
hires were greater in 2007, this had the effect of increasing costs.
---------------------------------------------------------------------------

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    The parts of the final standard that cover ladders, scaffolds, 
manhole steps, and other working surfaces are most likely to directly 
affect employees

[[Page 82704]]

engaged in maintenance and related activities. To estimate the numbers 
of such employees, OSHA relied on data from the Bureau of Labor 
Statistics' (BLS) Occupational Employment Statistics (OES) survey 
documenting employment by detailed occupation using 4-digit NAICS 
industry codes. The BLS data represent the only source of industry-
specific statistics on detailed occupational employment totals. OSHA 
used these data to estimate the numbers of employees in construction 
and in maintenance, installation, and repair occupations in each 
industry, as well as the overall number of production employees.\104\ 
As shown in Table V-1, an estimated 27.8 million employees are in 
production occupations, while an estimated 5.2 million are in 
construction, installation, and maintenance and repair occupations.
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    \104\ Production workers include those in building and grounds; 
construction; installation, maintenance, and repair; production; and 
material moving occupations. It is possible that employees in 
construction and related occupations, even though not employed by 
establishments in construction industries, might perform work 
regulated by OSHA under its construction standards in 29 CFR part 
1926. Therefore, the employers of these workers, depending on the 
type of work performed, also may have to meet the requirements for 
fall protection and walking-working surfaces specified in the 
construction standards. To the extent that these workers may be 
subject to both the general industry fall protection standard and 
the construction fall protection standard, the final rule increases 
harmonization with the construction fall protection standards, 
rather than generating new costs or worker-safety benefits.
---------------------------------------------------------------------------

3. Profile of Potentially Affected Small Entities
    To assemble the data necessary for a screening analysis to 
determine potential impacts on small entities as prescribed by the 
Regulatory Flexibility Act, OSHA developed profiles of small entities 
in the industries covered by the final OSHA standards for subparts D 
and I. OSHA used the Small Business Administration's (SBA) small 
business criterion for each industry and Census data (taken from the 
Statistics of U.S. Businesses) on employment, payroll, and receipts by 
entity size to estimate the numbers of entities and associated 
employment meeting the SBA definitions. When the SBA specified the 
small business criterion as a revenue threshold, OSHA used the Census 
data to associate that revenue with a given employment size. The first 
column of Table V-2 provides OSHA's estimates of SBA-based employment-
size criteria. This table shows, for each NAICS industry code, the 
number of entities and employees, and average receipts per entity, for 
business units that meet the employment-size criterion. OSHA estimated 
the numbers of at-risk employees by applying the percentage of at-risk 
small-entity employees estimated in the PEA to total estimated small-
entity employment, after deriving the latter estimate from updated 
(2007) Census data on the number of affected small entities.
    OSHA also used the Census data to develop a profile of entities 
that employ fewer than 20 employees. Table V-3 provides these 
estimates.

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4. Number of Employees Using Fall Protection
    Based on analysis by ERG (2007), OSHA estimated the numbers of 
employees using fall protection equipment by extrapolating results 
obtained from OSHA's 1999 PPE Cost Survey.\105\ This establishment-
based survey provided industry-specific estimates of the numbers of 
workers who used various types of personal fall protection equipment, 
including body harnesses and body belts. The survey reported the 
percentage of employees in each industry (by SIC codes) who used these 
types of personal fall protection equipment. ERG applied the survey 
findings by first associating the SIC industries covered by the survey 
with the 4-digit NAICS industry codes, and then multiplying total 
employment (presented above in Table V-1) by the percentage of 
employees who used personal fall protection equipment.
---------------------------------------------------------------------------

    \105\ For a description of the survey, see ERG (1999) in the 
reference section of this FEA. ERG excluded back-support belts and 
similar ergonomic devices from the types of personal protective 
equipment investigated by the survey.
---------------------------------------------------------------------------

    Because different employees might use both body harnesses and body 
belts, OSHA used the combined value of the two percentages in deriving 
these estimates. For example, if six percent of employees in a given 
industry used body harnesses while four percent of employees used body 
belts, OSHA applied the combined percentage (ten percent) as its 
estimate of the maximum number of employees using either form of fall 
protection.\106\ The survey's design did not permit industry-specific 
estimates for all industries.
---------------------------------------------------------------------------

    \106\ For the PEA, OSHA applied the upper value in the range--
six percent in the example given--and not the combined percentage.
---------------------------------------------------------------------------

    For example, only aggregated estimates are available for several 
groups of service, wholesale, and retail trade industries. To make the 
fall protection estimates consistent with the numbers of at-risk 
employees, OSHA constrained the estimated number of employees using 
personal fall protection equipment in any industry to be less than or 
equal to the numbers of employees in construction, installation, 
maintenance, and repair occupations shown in Table V-1. Table V-4 
presents, by the 4-digit NAICS industry code, OSHA's estimate of the 
number of employees using fall protection equipment.\107\ Overall, OSHA 
estimated that approximately 2.1 million employees in general industry 
currently use and will continue to use fall protection.
---------------------------------------------------------------------------

    \107\ The source of the data in Table V-4 is the OSHA PPE Cost 
Survey. Estimates shown are based on the combined percentage of 
employees using body harnesses and body belts. See Eastern Research 
Group, 1999. An ``NA'' indicates that the industry was not within 
the scope of the survey or that the subset of production employees 
judged to be subject to this standard was zero (NA) (see Table V-1). 
In ERG, 1999 (OSHA PPE Survey), see Table A2, PPE Category: Fall 
Protection; PPE Type: Body Harness; PPE Type: Body Belt, where, by 
two-, three-, and four-digit SIC codes, the number and percentage of 
employees using the PPE type is reported. For this FEA, ERG 
converted SIC codes to NAICS codes; see Ex. [OSHA Excel Workbook], 
tab Fall_protection.
---------------------------------------------------------------------------

5. Wage Rates
    As discussed in detail later in this FEA, OSHA believes that much 
of the cost impact of the final standard results from the time 
requirements for additional training and inspections. The Agency based 
the estimates for these costs on the opportunity cost of the labor time 
devoted to training, inspections, and installation or deployment of 
fall protection equipment. OSHA valued these opportunity costs in terms 
of employees' hourly wages, including benefit and fringe costs. Relying 
on average hourly earnings as reported by the BLS Occupational 
Employment Statistics Survey, 2010, OSHA constructed a weighted average 
hourly wage for the specific occupations comprising production 
employment for each industry. Similarly, OSHA constructed an average 
hourly production-supervisor wage for each industry.\108\ The Agency 
then multiplied these wages by a mark-up factor to account for fringe 
benefits. According to the 2010 BLS Employer Costs for Employee 
Compensation \109\ survey (BLS, 2011), this mark-up factor averages 
41.5 percent across industries in 2010. The loaded wage rates applied 
by OSHA in this FEA are in Table V-5.
---------------------------------------------------------------------------

    \108\ For example, for NAICS 4871--Scenic and Sightseeing 
Transportation, Land, NAICS 4872--Scenic and Sightseeing 
Transportation, Water, and NAICS 4879--Scenic and Sightseeing 
Transportation, Other, BLS OES did not report production wage and 
supervisory wage for 2010. Therefore, OSHA's applied as the base 
wage for production worker ($19.80), the reported value for the next 
largest available industry sector, NAICS 48-49, Transportation and 
Warehousing. For the supervisory wage ($27.45) for NAICS 4871, 4872, 
and 4879, OSHA applied a wage rate taken from a related 
transportation industry, NAICS 4851, Urban Transit Systems. Applying 
the fringe-benefit markup factor of 41.5 percent raised the 
production worker wage to $28.01 and the supervisory wage to $38.83.
    \109\ BLS (2010) reported a value of 41.5 percent for all 
private industry for June 2010.

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6. Other Factors of Production Profiled for This FEA
    Factors of production relevant to the final cost analysis included 
not only establishments, employers, and employees in general industry, 
but also the following walking and working surfaces:

 Manhole Steps and Rungs
 Stepbolts on Utility and Communication Poles and Towers
 Commercial and Residential Buildings (Window Cleaning) and
 Fixed Ladders

Details on the sources, count, dimensions, and other factors are 
provided in the cost discussions below in Section E.

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

1. Introduction
    This section reviews the populations in general industry that are 
at risk of occupational injury or death due to hazards associated with 
slips, trips, or falls to lower levels, and assesses the potential 
benefits associated with the changes to subparts D and I resulting from 
the final rule. OSHA believes that compliance with the final rule will 
yield substantial benefits in terms of lives saved, injuries avoided, 
and reduced accident-related costs. Applying updated accident data and 
incorporating information from the record, OSHA revised its preliminary 
estimate of (1) the baseline level of risk and (2) prevented deaths and 
injuries due to the final rule.
    As described in Section C of this FEA (Industry Profile) above, the 
employees affected by the final standard work largely in construction, 
installation, maintenance, and repair. According to the Bureau of Labor 
Statistics' 2007 Occupational Employment Statistics survey, there are 
approximately 112.3 million employees in industries within the scope of 
this final rule: 5.2 million employees engaged in construction, 
installation, maintenance, and repair operations in general industry 
that OSHA judges will need ladder training because these occupations 
are the most likely to use ladders in their work; \110\ and 2.1 million 
employees in general industry using personal fall protection equipment. 
The rule also affects workers in a variety of specific kinds of work 
who may enter manholes using step bolts, use scaffolds or rope descent 
systems, etc. The inclusion of construction occupations assumes that 
employees in construction occupations, but employed by general industry 
rather than construction employers, routinely engage in what OSHA 
labels as maintenance (i.e., a general industry activity) rather than 
construction activities.
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    \110\ Ladder use is not limited to these occupations, and there 
are many persons in these occupations that do not use ladders. OSHA 
examined ladder fatalities recorded by BLS from 2011 through 2014 
and found that 68 percent of ladder fatalities were in the 
occupations OSHA included as needing ladder training. However, of 
the 5.2 million included, many such as computer and electronics 
repair technicians and auto mechanics have low rates of ladder 
fatalities indicating that ladders are likely rarely used in these 
occupations. Over two million of those included as always needing 
ladder training are thus unlikely to need ladder training. This 
potential overestimate of ladder training costs is probably 
countered by the number of other workers who potentially use ladders 
but are excluded from the 5.2 million, such as 950,000 grounds 
maintenance workers who provide over 5 percent of ladder fatalities. 
The remaining 27 percent of ladder fatalities are very widely 
dispersed; ladder fatalities are found in every major occupational 
group.
---------------------------------------------------------------------------

    This section first examines the available data on the number of 
baseline injuries and fatalities among affected employees; then 
assesses the extent to which the standard can prevent those injuries 
and fatalities; and finally estimates some of the economic benefits 
associated with the prevented injuries and fatalities. This final 
standard would produce benefits to the extent that compliance prevents 
injuries and fatalities that would otherwise occur.
2. Profile of Fall Accidents
a. Fall Fatalities
    OSHA examined fall fatalities using two databases. As a baseline 
for determining the average number of fall fatalities per year, OSHA 
examined data from the BLS Census of Fatal Occupational Injuries (CFOI) 
for 2006 through 2012. To provide a more detailed breakdown of the 
kinds of falls

[[Page 82763]]

included in this total, OSHA in the PEA examined CFOI data for a longer 
period: 1992 to 2002. For this FEA, OSHA has updated the detailed 
breakdown using data from 2006-2010 and applies this updated breakdown 
of the kinds of affected falls to the 2006-2012 fatality data.\111\
---------------------------------------------------------------------------

    \111\ Beginning in 2011, BLS revised the system for reporting 
types of fatal fall events. The detailed fatality events shown below 
in Tables V-11 were no longer available after 2010.
---------------------------------------------------------------------------

    Distinguished from the larger category of all falls--i.e., a set of 
accidents that includes falls on the same level, falls to a lower 
level, and jumps to a lower level--the narrower category of falls to a 
lower level consists of the types of falls directly addressed by most 
of the changes to OSHA's requirements by this final standard. As shown 
in Table V-6, the CFOI reported 283 and 279 fatal falls to lower levels 
for 2006 and 2007, respectively, in industries covered by the final 
standard; for the five most recent years for which the data were 
available, fatal falls to a lower level declined to an average of 252 
fatalities. For purposes of estimating the overall rate of fall 
fatalities for this benefits analysis, OSHA took the average of these 
seven years--i.e., 261 fall fatalities to a lower level per year. 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 codes 31-33) and 
Transportation (NAICS code 48) industries accounted for 9.6 and 7.1 
percent of the fall fatalities, respectively. Among all three-digit 
NAICS codes affected by the standard, BLS reported the highest number 
of fatal falls in NAICS code 561, 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 code 5617).


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    To assess the benefits of this rule, it is necessary to determine 
not only the total annual number of fall fatalities, but also the 
number of various types of fall fatalities. Quantifying the various 
types of fatal falls is necessary because the

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final standard will prevent fall fatalities to different degrees for 
different types of falls. Table V-7 shows, for the 5-year period 2006 
to 2010, the breakdown of fall fatalities by type of fall based on CFOI 
data. As shown, falls to a lower level (distinguished from falls on the 
same level) accounted for about 77 percent of total fall 
fatalities.\112\ On a sector-by-sector basis, falls to a lower level as 
a percentage of all fatal falls ranged from 50 percent for the 
Educational Services (1.4 of 2.8, unrounded) and Health Care and Social 
Assistance sectors (6.4 of 12.8, unrounded) to 91 percent for the 
Administration and Support and Waste Management and Remediation 
Services sector (64 of 74.6, unrounded). As Table V-7 also shows, fatal 
falls from ladders averaged 56 per year over the 5-year period, while 
fatal falls from scaffolds averaged 13 per year.
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    \112\ The average for 2006-2010 shown in Table V-7 (333 
fatalities) differs from the baseline estimate applied in OSHA's 
benefits analysis (345 fatalities; see Table V-11) due to the 
addition of two years (2011 and 2012) in OSHA's estimate of the 
baseline average. See Ex. [OSHA Excel Workbook], tab Prevented 
Fatalities '06-'12.

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b. Fall Injuries
    Table V-8, based on BLS's Survey of Occupational Injuries and 
Illnesses, shows the average number of lost-workday injuries due to 
falls in general industry, by type of fall, for 2006-2012. The number 
of falls to lower level (48,379) and the number of falls on same level 
(137,079) were calculated as the average of injury data reported by BLS 
for 2006-2012. OSHA allocated the average number of falls to a lower 
level (48,379) among the different fall to a lower level categories 
based on the average distribution of falls to a lower level for 2006-
2010.\113\ The estimate of other falls is derived as the difference 
between total falls and the sum of falls to lower level and falls on 
same level. As Table V-8 shows, unlike fall fatalities, falls to a 
lower level represent a relatively small share of injurious, non-fatal, 
falls. This table forms the basis for OSHA's estimate of the number of 
lost-workday injuries prevented by the final standard.
---------------------------------------------------------------------------

    \113\ Data on injuries associated with types of fall to lower 
level were reported only up until 2010.
---------------------------------------------------------------------------

    Table V-9, also based on BLS's 2010 Survey of Occupational Injuries 
and Illnesses, provides additional details about the lost-workday 
injury rates for the two major categories of falls: Falls to a lower 
level and falls to the same level. Excluding industry groups for which 
the data are incomplete, the combined fall injury rate ranges from a 
low of 3.2 cases per 10,000 workers in NAICS 518 (Internet Service 
Providers, Web Search Portals, and Data Processing Services) to a high 
of 72.0 per 10,000 employees in NAICS 481 (Air Transportation). Of the 
81 affected industries with reported fall injury data, 17 had fall 
injury rates in excess of 30 cases per 10,000 employees, while 28 had 
fall injury rates between 20 and 30 cases per 10,000 employees.
    Table V-10, also based on BLS's 2010 Survey of Occupational 
Injuries and Illnesses, shows lost-workday fall-related injury rates by 
specific type of fall, disaggregated by the major industry sectors 
covered by the final standard. The majority of accidents in the fall-
to-same-levelcategory are falls to a floor, walkway, or other surface.

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BILLING CODE 4510-29-C
    Among falls addressed by the final standard, the annual number of 
falls to a lower level resulting in a lost-workday injury ranges from 
4.7 per 10,000

[[Page 82781]]

employees for the Financial Activities sector to 8.1 per 10,000 
employees for the Trade, Transportation, and Utility sector. Among 
specific types of falls to a lower level, falls from ladders represent 
7.5 percent of all falls in the Manufacturing sector as reflected in an 
injury rate of 1.3 cases per 10,000 employees. Among other sectors, the 
injury rate from falls from ladders ranges from 0.4 per 10,000 
employees in the Education and Health Services sector to 2.0 per 10,000 
employees in the Trade, Transportation, and Utility sector and in the 
Other Services sector.
    In several sectors, falls down stairs or steps represent a major 
share of injuries from falls to a lower level. The provisions in the 
final standard requiring guardrails, handrails, and training would 
protect employees from these types of falls. The final rule addresses 
directly falls from floor holes, loading docks, roofs, and scaffolding, 
but these falls constitute much smaller shares of nonfatal fall 
accidents.
3. Fatalities and Injuries Prevented by the Final Subpart D and I 
Standard
a. Fatalities Prevented
    OSHA's final standard for subparts D and I contains safety 
requirements designed to prevent falls involving ladders, rope descent 
systems, unguarded floor holes, and unprotected platform edges, among 
other conditions. In this FEA, OSHA classifies these types of falls as 
``falls to [a] lower level.'' ``Falls on the same level'' include slips 
and trips from floor obstructions or wet or slippery working surfaces. 
The final rule has relatively few new provisions addressing falls on 
the same level and therefore OSHA has assigned a preventability rate of 
1 percent (i.e., the percentage of fatal incidents that the Agency 
estimates will be prevented by the final rule) to these types of falls.
    Combining the data in Tables V-6 and V-7 with other fatality data 
from BLS, Table V-11 shows the estimated number of annual fatalities 
from falls in general industry. Based on 2006-2012 data, OSHA 
calculated an average of 345 fatal falls per year, 261 fatal falls to a 
lower level per year, and 75 fatal falls to the same level. OSHA 
allocated the average number of falls to a lower level (261) among the 
different fall categories based on overall fatal fall accident 
experience from 2006 to 2010 derived from the BLS Census of Fatal 
Occupational Injuries summarized in table V-7.\114\ On this basis, an 
estimated 261 fatalities per year resulted from falls to a lower level, 
while the remaining 84 fatalities resulted from falls on the same level 
or other types of falls.
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    \114\ See ERG, 2007 (Ex. OSHA-2007-0072-0046), p. 4-10, for 
further explanation of OSHA's methodology for applying historic 
percentages to types of falls. See also Ex. [OSHA Excel Workbook], 
tab Prevented Fatalities '06-'12 for details on the application of 
the distribution of falls from 2006-2010 to the baseline average 
number of fatal falls for 2006-2012 in the final benefits analysis.
---------------------------------------------------------------------------

    In examining the costs of the proposed standard, ERG found, after 
reviewing inspection results, that most employers are generally in 
compliance with the existing subpart D standards that have been in 
place for over 30 years (see Table V-15 in the PEA). However, this 
general compliance does not necessarily mean that many of the observed 
fall fatalities and injuries are not the result of failure to comply 
with existing standards. For example, even if employers are complying 
with a standard 99.9 percent of the time, it is still possible that 
many current fall fatalities could still be the result of the 0.1 
percent level of employer noncompliance.
BILLING CODE 4510-29-P

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BILLING CODE 4510-29-C
    For the purposes of the analysis summarized in Table V-11, OSHA did 
not perform a quantitative analysis of how many fatal falls full and 
complete

[[Page 82783]]

compliance with the existing standard could prevent. However, a 
qualitative examination of the fatal falls to a lower level shows that 
full and complete compliance with the existing standard could prevent a 
majority, and perhaps a large majority, of these falls. For the PEA, 
and for this FEA, OSHA and its contractor used expert judgment to 
estimate preventability factors associated with the new rule taking 
account of considerations that most falls might be prevented by 
existing rules. The preventability factors are then the percentage of 
existing falls, many of which are preventable by existing rules, that 
would be prevented by this new final rule. On the other hand, these 
preventability factors assume, as do the cost estimates, full 
compliance with the new rule. On the benefits side, the estimated 
number of preventable falls is based on estimates of the number of 
actual current falls that are preventable by full compliance with the 
new standard. On the cost side, costs are estimated as the cost of 
going from baseline compliance to full compliance with the new rule. In 
order to achieve consistency between costs and benefits estimates, both 
must reflect the same assumptions regarding existing compliance with 
the new rule.
    OSHA also considered, and in some cases adopted, the approach of 
using consensus standards as a baseline. As will be discussed in detail 
in the cost chapter, in some cases OSHA assumed full compliance with 
consensus standards for purposes of both benefits and costs. In such 
cases, OSHA estimated neither costs nor benefits where the OSHA rule 
did not go beyond consensus standards. However, where consensus 
standards involve training or work practices required of even the 
smallest firms who may not even be aware of consensus standards, OSHA 
estimated both costs and benefits from the existing baseline. This 
baseline might yield overestimates of true impacts because many follow 
the consensus standard, but there is some reasonable chance that 
employers are more likely to meet an OSHA requirement than a consensus 
standard.
    A comparison of the existing and new standards shows that the new 
provisions largely concern training and inspections, with requirements 
for additional or more stringent engineering or work-practice controls 
being less prominent (see Section F (Costs of Compliance) below in this 
FEA). Nonetheless, OSHA's final cost analysis assigns engineering 
controls and personal protective equipment to operations and activities 
that were not assigned such controls in the PEA, including costs for 
repairs or replacements of equipment as a result of equipment failing 
inspections. In addition, the new standard simplifies and clarifies 
certain provisions, and, compared to the existing standard, better 
aligns them with various national consensus standards. OSHA finds that 
the benefits in terms of reductions in fatal falls result from 
increased training, inspections, and certifications (i.e., roof anchor 
certification) in preventing falls.
    In the PEA, OSHA based its analysis of accident prevention on ERG's 
professional judgment and two published studies.\115\ The studies show 
that well-designed training programs are an effective means of 
improving workplace safety. A review of the literature by the National 
Institute for Occupational Safety and Health concerning the benefits of 
training reported that the studies showed consistently that improved 
and expanded training increased hazard recognition and promoted 
adoption of safe work practices. However, the magnitude of the effect 
of increased training on accident rates remains uncertain (Cohen and 
Colligan, 1988). Further, analysis of past OSHA experience shows that 
requiring training programs does not ultimately prevent the majority of 
accidents addressed by the training. One study of OSHA benefits 
estimates for 6 standards promulgated between 1990 and 1999 found that 
OSHA had routinely estimated greater numbers of accidents potentially 
prevented than had actually occurred (Seong and Mendeloff, 2004). 
OSHA's accident prevention estimates ranged from 40 to 85 percent of 
relevant classes of accidents. The article shows that such levels of 
prevention did not in fact occur. The article goes on to discuss the 
issue of why effects were overestimated and states:
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    \115\ The term ``prevention rate'' as used in this FEA, refers 
to prevention of both injuries and fatalities.

    Why has OSHA usually overestimated the effects? One point that 
OSHA staff emphasized in response to these findings was that the 
figures they produce should not be viewed as ``predictions;'' 
rather, they are estimates of what the impact would be if there were 
full compliance with the standard.
    OSHA staff is well aware that there is not full compliance with 
OSHA standards. However, despite its lack of realism, the assumption 
of full compliance seems generally reasonable given the task that 
the regulatory analysts face. OSHA is required by statute to 
demonstrate that its standards are technologically and economically 
feasible, and this demonstration must be made under the assumption 
that there is full compliance. And if costs are estimated under this 
assumption, then calculations of the benefits these costs would 
generate should arguably use it as well.
    However, there is a point at which the full compliance 
assumption does go beyond reasonableness. OSHA appears to assume 
that if a standard requires workers to avoid working in a hazardous 
manner or provides them training to change their behaviors, then all 
such unsafe behavior will be eliminated. This assumption creates the 
potential for estimating unrealistically large reductions in 
injuries. When training and work practices are major components of a 
standard, OSHA should be required to analyze their impacts in a more 
deliberative and realistic fashion. (Seong and Mendeloff, 2004)

    OSHA continues to feel it is important to present full compliance 
estimates, but agrees with the article that such an assumption should 
not imply that the training can be expected to prevent accidents as if 
all lessons provided in training are automatically applied by all 
workers.
    In addition to less than full compliance, there are some 
methodological limitations to the time trend approach used by Seong and 
Mendeloff. First they assume that compliance begins on the effective 
date of the regulation. In reality, some employers begin compliance 
with new regulations before they are finalized, while others do not 
start to comply until long after a regulation goes into effect. Many 
employers start applying many of the provisions of a proposed standard 
at the time of proposal, in part to get ahead of the curve; to the 
extent their change in practices is anticipatory of OSHA setting or 
revising standards, it should be attributed to the OSHA policy. Other 
employers do not respond to a regulation as soon as it is promulgated. 
OSHA itself frequently lets employers off with a warning rather than 
citation in the first year of enforcement of a standard. Finally there 
is a surprising amount of year-to-year variation in fatality data which 
create a great deal of noise that makes the effects of rules difficult 
to interpret. Seong and Mendeloff analyze the results of OSHA analyses 
from 17 to 27 years ago. OSHA personnel are acknowledged in the 
articles credits, and OSHA has continued to believe that OSHA should 
take account of this article in its benefits analysis. In order to 
assure that this was done, OSHA has shared this concern with its 
contractors where appropriate. As a result of consideration of this 
article, OSHA has made clear that reviewers of safety benefits analysis 
would apply certain principles in their review. First, expert analysts 
were informed on past overestimates, with the hope that experts would 
gain in accuracy from feedback on their past inaccuracies and biases. 
Secondly,

[[Page 82784]]

benefits analyses should not assume that changes in training 
requirements can be expected to have large changes in incident 
prevented unless there are also changes in engineering controls or 
strong prohibitions on practices. Third, the higher the estimate, the 
greater would be the justification required beyond stating this was the 
best judgment of the experts. One possible effect of applying these 
principles is that the highest preventability factor that was applied 
in the PEA was lower than the lowest preventability factors in the 
studies the Seong and Mendeloff (2004) article reviewed.
    A second major issue is that the failure of OSHA regulations to 
achieve the anticipated benefits maybe partly due to failure of 
employers to comply with the regulations. As noted by Seong and 
Mendeloff, OSHA routinely assume full compliance with regulations for 
legal reasons. In some cases, if compliance is lower than 100 percent, 
benefits and costs will be proportionally reduced, with no effect on 
whether benefits exceed costs. For example, if twenty percent of 
establishments in an industry are out of compliance with a provision in 
the baseline, and these twenty percent cause ten percent of all fall 
fatalities, then if only ten percent come into compliance, rather than 
twenty percent, accidents would still be reduced by five percent. Under 
this scenario, a finding that benefits exceed costs under full 
compliance would be maintained at a lower compliance level, as long as 
those out of compliance are a homogeneous group.
    There is, however, the possibility that those out of compliance are 
not a homogeneous group but consist of the two subgroups, one of which 
has found other ways of preventing the same kind of falls, and one of 
which are ``bad actors'' who make no efforts of any kind to prevent 
falls. In this case, if compliance is only by those in the safer group, 
the effects of noncompliance would not simply be proportional. Such a 
situation might be particularly likely if there is noncompliance with 
an existing rule and OSHA adds provisions designed to assure greater 
compliance. For example, almost all trenching fatalities are the result 
of complete failure to comply with existing shoring requirements. An 
attempt to improve compliance by increasing recordkeeping, training, 
and certification might have little effect on the bad actors who simply 
fail to use shoring at all while imposing additional costs on those 
already following existing shoring requirements. If only those in 
compliance with the existing rule also follow these new provisions, 
then there would be costs without benefits. OSHA has reviewed this rule 
and does not believe that this is the case for the provisions of this 
rule.
    Because of the importance of this issue, OSHA examines the effects 
of possible overestimation of benefits and of noncompliance on both 
costs and benefits in the sensitivity analysis.
    For the PEA, OSHA estimated the number of fatal falls potentially 
prevented by compliance with the proposed standard, categorized by type 
of fall. Since proposed subpart D focused heavily on ladder safety, 
OSHA judged the highest impact--15 percent--would be in preventing 
fatal falls from ladders. For other types of fatal falls directly 
addressed in the proposal (e.g., falls from floor or dock), OSHA judged 
a more moderate impact of 10 percent. For other types of fatal falls 
(e.g., falls down stairs or steps), OSHA judged a relatively low 
prevention impact (5 percent). For the several types of fatal falls not 
specifically defined by the BLS injury survey (fall to lower level, 
n.e.c., and fall to lower level, unspecified), OSHA judged a level of 
preventability (2.5 percent). (See the PEA (Ex. 1) and ERG, 2007 (Ex. 
46), pp. 4-10 to 4-14.)
    For falls from roofs, OSHA judged in the PEA that compliance with 
the provisions in proposed subpart D addressing safety systems, work 
practices, and training associated with the fall hazards encountered on 
roof surfaces--including the requirements referenced in national 
consensus standards such as 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--would 
result in a prevention rate of 15 percent. Therefore, in the 
preliminary analysis of benefits, OSHA applied a prevention rate of 15 
percent to roof accidents.
    For this final analysis of benefits, OSHA increased the prevention 
rate for roofs to 20 percent because the final standard: (1) 
Significantly strengthened fall protection for chimney sweeps (see 
Section F Costs of Compliance below in this FEA for a discussion of the 
control measures that OSHA used for the chimney-cleaning services 
industry), and (2) in greater detail, through association with an 
analogous standard for construction, extended fall protection in the 
form of designated areas and work rules intended to limit the movement 
of workers to within 15 feet of the roof edge when fall protection is 
not installed and available for use (see Section F below for a 
discussion of fall protection on rooftops across industries covered by 
Sec.  1910.28, Duty to have fall protection). OSHA's final analysis of 
compliance costs for rooftop inspections addressed by final Sec.  
1910.28(b)(13), Work on low-slope roofs, includes costs for the 
installation of fall-arrest anchorages for the small percentage of 
inspections that identify hazardous conditions at or near roof edges 
(see discussion in the section ``Cost Estimates'', below). These 
additional rooftop inspections and fall-system enhancements are 
expected to contribute to the benefits of reduced fatalities and 
injuries.
    Two chimney-sweep accidents reported in OSHA's IMIS database (OSHA, 
2012a) illustrate the benefits achievable under the final standard. In 
the first accident (Inspection No. 311734842), an employee of a 
Maryland chimney-sweep business died from impact injuries to the head 
and neck after apparently falling 15 feet. Although no one witnessed 
the accident, it appears, based on evidence at the scene and an 
interview with the homeowner, that the employee was using a 12-foot 
section of a ladder to gain access to three roof levels: the primary 
roof, the porch roof, and the roof peak. Inspectors found no roof 
perimeter guardrail or anchorage-based personal fall protection 
equipment at the site. OSHA believes the final standard at Sec.  
1910.28 would prevent such a fall because the employer would have to 
provide fall protection for an employee exposed to a height of four 
feet or greater.
    In a second chimney-cleaning accident identified by OSHA 
(Inspection No. 307309054), employees of an air-duct and chimney-
service company were installing a protective cap on a chimney. One of 
the employees was using a 2-foot stepladder leaning against the chimney 
chase to access the top of the chimney when he fell 24 feet. OSHA's 
investigation of the fatality showed that the employee was not using 
personal fall protection equipment, a safety measure required by the 
final standard.
    For this final analysis of benefits, OSHA increased the prevention 
rate for ladders to 20 percent (from 15 percent in the PEA) because the 
requirement in the final rule for safety systems on all fixed ladders, 
including outdoor advertising, will substantially reduce the number of 
ladder-related accidents.
    In addition, OSHA believes that the increased level of worker 
training on ladder safety systems required by the final rule, and the 
heightened recognition of the fall hazards associated with ladder 
safety systems resulting from this training, will yield a

[[Page 82785]]

higher percentage of accident avoidance than preliminarily estimated by 
the Agency in the PEA.
    OSHA also increased the prevention rate for falls to lower level, 
not elsewhere classified, to 5 percent (from 2.5 percent in the PEA) 
based on the requirements for step bolts in the final rule. OSHA 
revised its preliminary estimate of the prevention rate based on its 
determination that employers will increase use of ladder safety systems 
combined with personal fall protection on structures covered by the 
final rule that currently use only step bolts or ladders without ladder 
safety systems, such as pole-mounted lights at sports and performance 
arenas and other tall structures.
    For falls from scaffolds or staging, OSHA judged a prevention rate 
of 40 percent in the PEA. No commenters raised objections to this 
estimate, so OSHA retained it for this FEA. OSHA believes that this 
estimate is reasonable because, according to OSHA and BLS accident 
data, approximately 40 percent of lost-workday scaffold accidents 
involve rope-descent systems. Therefore, in view of the final 
standard's comprehensive coverage of these systems, OSHA believes that 
it is reasonable to expect that the final standard will prevent at 
least 40 percent of deaths and injuries associated with scaffolds.
    In addition, Table V-11 shows that falls from scaffolds or staging 
is a leading category of falls in general industry. According to the 
Bureau of Labor Statistics, such falls caused an average of 18 deaths 
and 1,474 lost-workday injuries yearly over a recent eleven-year period 
(1992-2002). For the PEA, OSHA reviewed a subset of scaffold accidents 
recorded in the Agency's Integrated Management Information System 
(IMIS) database to expand ERG's analysis of the extent to which the 
proposed standard would prevent accidents involving commercial window 
cleaning to gain additional information on prevention of fatal falls 
(OSHA, 2009). Accordingly, OSHA reviewed 36 incidents (some involving 
multiple casualties) that occurred during the period January 1995 to 
October 2001 in which a fall from an elevated scaffold or a similar 
surface during commercial window cleaning operations either killed or 
injured workers in general industry. OSHA then applied expert judgment 
to make determinations about which of these incidents would be 
preventable by full compliance with each of the following standards:
    1. The existing standard for walking-working surfaces;
    2. A 1991 memorandum to regional administrators that describes the 
safe use of descent-control devices (i.e., rope-descent systems or 
RDSs) by employees performing building exterior cleaning, inspection, 
and maintenance (OSHA, 1991a), which were incorporated into ANSI/IWCA 
I-14.1, Window Cleaning Safety Standard; or
    3. The final standard.
    Table V-12 below summarizes OSHA's analysis of the IMIS window 
cleaning incidents. Table V-12 shows that the existing standard did not 
account for incidents in three of the four cause-of-incident 
categories. The existing standard could not account for these incidents 
because it has no provisions that directly regulate RDSs. Accordingly, 
OSHA believes that full compliance with the existing standard would not 
prevent these incidents.
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    The 21 RDS incidents in the category titled ``Malfunction/
Mishandling of Rope Descent System or Lifelines'' typically involved a 
malfunction in, or unsafe use of, an RDS rope descent systems 
(including lifelines). OSHA determined that safety conditions specified 
in its 1991 memorandum could prevent 19 of these incidents. The final 
rule could prevent these 19 RDS incidents, as well as the remaining two 
RDS incidents. As noted earlier, OSHA's existing subpart D would not 
prevent any of the RDS incidents in this category.
    One of the primary causes of accidents in commercial window 
cleaning is the failure of the rooftop anchorage to support the 
suspended scaffold, the second cause-of-incident category in Table V-
12. The final standard requires that employers use proper rigging, 
including sound anchorages and tiebacks, with RDS. OSHA identified 
eight incidents in the IMIS database for which anchorage failure 
contributed to the incident. In OSHA's judgment, all eight anchorage-
related incidents involved factors addressed by the final standard and, 
therefore, would be preventable under that standard. All but one of 
these eight incidents involved factors addressed by the 1991 OSHA memo.
    The third cause-of-incident category in Table V-12 addresses 
accidents that are less likely to occur when employers train workers 
adequately--for example, in the proper use of harnesses and lifelines. 
OSHA identified 14 incidents in the IMIS database in which death or 
injury to a worker would be preventable had the worker applied the 
training required by the final standard. Of these 14 cases, 12 involved 
factors addressed by the 1991 OSHA memo.
    Other factors that led to a fall from elevation, such as equipment 
failure involving suspension scaffolds and powered platforms, 
contributed to the death or injury of workers during window cleaning 
operations. The fourth cause-of-incident category in Table V-12 
addresses these incidents. OSHA determined that provisions in the 
existing standard would prevent four of these incidents, while the 
provisions of the final standard would prevent six of them. The 1991 
OSHA memo had no provisions that would prevent these incidents.
    OSHA believes that this analysis illustrates some of the 
complexities in assigning benefits to the final standard. Chief among 
these complexities is the assumption that full compliance with the 
final standard will prevent fatalities not preventable by the existing 
standard due to the addition in the final standard of major 
requirements addressing window cleaning operations.
    Second, there is the question of the proper baseline for such an 
analysis. Prior to publication of the final standard, while OSHA did 
not have a rule addressing RDSs or anchorages for these systems and 
suspended scaffolds, OSHA could use national consensus standards and 
enforcement policies, in concert with the general duty clause, to 
prompt employers to prevent falls to lower levels. Therefore, 
reductions in fall-related incidents likely occurred as a result of 
this enforcement practice, even if OSHA applied this practice 
irregularly. However, OSHA has not treated the 1991 memo as the 
baseline for either benefits or costs, but has instead estimated costs 
for most activities required by the 1991 memo and benefits from the 
current levels of compliance.
    Third, there is the issue, already discussed, of how to treat the 
benefits of training requirements. OSHA normally assumes full 
compliance with a rule for the purposes of both benefit and cost 
analysis. For some provisions in a rule, the Agency can readily 
determine whether full compliance with the rule would prevent an 
incident. However, for training provisions, it is difficult to 
determine whether full compliance with the training requirements would 
prevent the incidents the training is addressing (Seong and Mendeloff, 
2004). OSHA's resulting estimate of the effects of the training 
requirements is specified by Table V-11. According to OSHA's 
determinations summarized in Table V-12, adequate training, if the 
instructions in training were followed, could have prevented up to 14 
of the 36 window cleaning fall-related incidents reported in IMIS.
    Based on the PEA and the rulemaking record, and applying the 
fatality-prevention rate for scaffolds explained above, OSHA concludes 
that the final standards will prevent 29 fall fatalities a year, i.e., 
the final standards would prevent approximately 8 percent of the fatal 
falls in general industry.
b. Injuries Prevented
    For the purposes of estimating the number of lost-workday injuries 
prevented by the final standards, OSHA applied the same prevention 
factors to lost-workday injuries that it assigned to the defined 
categories of fatal falls. Table V-13 shows, by type of fall, the 
distribution of lost-workday injuries for general industry; these 
injury categories duplicate the categories in Table V-8. The BLS data 
show that, for non-fatal falls to a lower level, 30.4 percent of 
injuries are due to falls down stairs or steps, while 22.3 percent are 
the result of falls from ladders. Averaging total lost-workday fall 
injuries for 2006-2012, OSHA estimates that 202,066 lost-workday fall 
injuries occur each year for work operations directly affected by the 
final revisions to subparts D and I (see Ex. [OSHA Excel Workbook], 
tabs Injury Fall % 2006-2012 and Prevented Injuries '06-'12).
    For this FEA, OSHA notes a significant addition to its preliminary 
analysis of benefits. In the PEA, OSHA primarily focused on the 
benefits of preventing falls to a lower level because of the relatively 
greater certainty of accident avoidance associated with the required 
control strategies that OSHA anticipates employers will apply to 
ladders, scaffolds, rope descent systems, roofs, and other elevated 
surfaces after the Agency issues the final rule. However, based on 
testimony in the record (Exs. 329 (1/20/2011, pp. 42, 60-61); 329 (1/
21/2011, pp. 200-203); 330), OSHA expanded its analysis to include the 
benefits of preventing slips, trips, and falls on the same level. As 
shown in Table V-8, 2006-2012 BLS data indicate that falls on the same 
level resulted in 137,079 lost-workday injuries in work activities in 
general industry affected by the final rule. OSHA estimates that the 
provisions of final subpart D addressing general conditions (Sec.  
1910.22) will prevent 1 percent of these accidents, or 1,371 injuries. 
The 1% prevention rate assumes that the time employers will expend to 
inspect (two hours per year) and correct hazards (20 minutes for the 10 
percent of establishments with unsafe conditions) in compliance with 
1910.22(d) will lead to this reduction. This estimate is uncertain, and 
we examined other prevention rates in our sensitivity analysis.\116\
---------------------------------------------------------------------------

    \116\ Other sections of the standard may indirectly prevent 
falls on the same level.
---------------------------------------------------------------------------

    Using the prevention estimates described above for falls on the 
same level and the prevention estimates applied to fatal incidents 
involving falls to a lower level, OSHA estimates that compliance with 
final subparts D and I will prevent 5,842 lost-workday fall injuries 
annually. OSHA recognizes that this prevented-injuries estimate is a 58 
percent increase over the preliminary estimate (i.e., 3,706 prevented 
injuries); however, OSHA believes that this estimate accurately 
captures the full range of accidents that the final rule addresses.
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4. Nonquantifiable Benefits
    As noted earlier in this FEA, OSHA did not estimate the 
improvements in the efficiency of compliance associated with clarifying 
the existing rule and making it consistent with current national 
consensus standards. In addition to the benefits associated with those 
factors, OSHA anticipates that improvements to its walking-working 
surfaces standard in general industry will yield further benefits. In 
the following exhibit and in the discussion that follows, OSHA 
highlights the key substantive differences introduced by the final 
rule.
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[[Page 82796]]

    Earlier in this preamble, in the summary and explanation of final 
Sec.  1910.28 Duty to have fall protection and falling-object 
protection, OSHA described the means by which the final standard 
provides greater flexibility in controls than is found in the current 
walking-working standard for preventing slip, trip, and fall accidents. 
OSHA believes that expanding control flexibility will produce 
nonquantifiable benefits, and in the following discussion, the Agency 
reiterates the factors that will help generate the nonquantified 
benefits supplementing the quantified benefits shown in Impacts Exhibit 
V-1 and in Tables V-11 and V-13 in this FEA.
    This rule, like the construction fall protection standard, allows 
general industry employers, similar to construction employers, to 
protect workers from falls hazards by choosing from a range of 
acceptable fall protection options. The existing general industry 
standard, however, 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 allowing 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, 
OSHA believes giving general industry employers flexibility in 
selecting fall and falling-object protection systems allows them to 
select the system or method that they determine will work best for the 
particular work operation and location. Such flexibility allows 
employers to consider factors such as exposure time, availability of 
appropriate attachment points, feasibility, cost effectiveness, and 
cost constraints when selecting the appropriate fall protection system 
for the work activity.
    Second, providing control flexibility allows general industry 
employers to take advantage of advances in fall protection technology 
developed since OSHA adopted the existing rule. The existing rule, by 
contrast, limited choices in fall protection technology.
    Third, making the final rule consistent with the construction 
standard ensures that employers who 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 perform general industry 
operations. Thus, making the general industry and construction rules 
consistent ensures that final rule is a cost-effective approach for 
reducing significant risk of harm. 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 believes the comprehensive approach to fall protection (that 
is, duty to provide fall protection, mandatory criteria for controls, 
regular inspections, and training) that the final rule and the 
construction fall protection standard incorporate will provide 
equivalent or greater protection than the existing rule. In addition, 
the greater flexibility the final rule affords employers will allow 
them to select the fall protection option that works best in the 
specific situation and is the most cost-effective protective measure 
capable of reducing or eliminating significant risk of harm. 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 other passive controls to 
protect workers from falls. For example, employers may not be able to 
install permanent systems such as guardrails when they do not own the 
building or structure on which their employees are working. OSHA 
believes the final rule addresses the concerns of these commenters 
without limiting employer flexibility or compromising worker safety.
    As mentioned, the final rule limits fall protection choices in some 
situations where the Agency determined that passive/permanent systems 
provide the requisite level of protection. For example, in final 
paragraph (b)(5), OSHA specifically requires the use of guardrails on 
runways and similar walkways. Likewise, guardrail systems or travel 
restraint systems are the only systems that employers may use to 
protect workers on slaughter-house platforms (see final paragraph 
(b)(14)). In these cases, OSHA limited employers' choices to those 
systems that are possible to use on those walking-working surfaces and 
that provide an adequate and appropriate level of safety.
    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, travel restraint 
lines), snaphooks, and anchorages. The work practices include requiring 
employers to ensure inspection of personal fall protection systems 
before the initial use during each work shift, and to ensure that a 
competent or qualified person inspects each knot in a lanyard or 
vertical lifeline. OSHA believes that 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.
c. Public Comment on Benefits
    OSHA requested comment on the Agency's preliminary analysis of the 
scaffold accidents described above, and on the various approaches used 
to determine the estimated benefits achievable from compliance with the 
other provisions of the proposed standard. The following discussion 
presents OSHA's summary of the public comments received on OSHA's 
preliminary benefits analysis.
    The National Chimney Sweep Guild (NCSG) questioned the benefits of 
a fall protection system that involved the use of an anchorage, travel 
restraint lines, and harnesses for repair and maintenance activities on 
a residential roof:

    Given that the average time on the roof for a typical chimney 
service is between five and twenty minutes, we believe it is clear 
that the installation of a single roof anchor (taking 45 to 90 
minutes) would expose the chimney sweep to greater hazards for a 
longer period of time. Installation of the anchor requires extra 
equipment to be taken to the roof, and increases the number of 
ground to roof trips. We believe one of the highest hazards is the 
ladder to roof transition, both getting onto and off of the roof. 
The work required to install the roof anchor(s) would significantly 
increase the number of ladder to roof to ladder transition cycles. 
Furthermore, the anchor would not provide any fall protection during 
the period before the sweep could attach to it or during the period 
after the sweep detached from it.
    In conclusion, the installation of a roof anchor point roughly 
equals the cost of an

[[Page 82797]]

average chimney cleaning or inspection service, requires 
significantly more ladder to roof to ladder transitions, keeps the 
technician working on the roof for a substantially longer period of 
time than would be required to perform the average chimney cleaning 
or inspection service, and would not provide fall protection for the 
ladder to roof and roof to ladder transitions. Accordingly, we 
believe it is clear that it is economically infeasible (in the rare 
circumstance where it would be acceptable to a homeowner) and would 
expose the technician to a greater hazard to require the 
installation of the anchor(s) that would be necessary to use a 
personal fall arrest system, a travel restraint system or a safety 
net while performing the great majority of the tasks performed by 
sweeps (Ex. 150, pp. 30-31).

    In this quotation, NCSG argued that, in many cases, the 
installation of a roof anchor would involve greater hazard, and 
challenged OSHA's determination that it is feasible to apply these fall 
protection systems for chimney or other roof work.
    With respect to the issue of greater hazard, while some chimney 
sweep jobs are relatively short (e.g., chimney cleaning and inspection, 
minor repairs), some are much longer than five to 20 minutes (e.g., 
substantial and major installations and repairs) (Exhibit 150). A 
simple chimney cleaning job typically involves no time on the roof 
except possibly a short inspection of the exterior of the chimney after 
the cleaning is finished (Ex. 150; 329 (1/18/2011, p. 267, 270, 276-
277, 301)). OSHA has modified the rules so roof anchorages are not 
required for inspections prior to starting work or after completing 
work (Sec.  1910.28(a)(2)(ii)). As a result, most short chimney 
cleaning and inspection jobs will not require use of anchorages and 
fall protection. In those situations where work actually needs to be 
done on a roof, and thus more time will be required on the roof, OSHA 
has modified the rule to except requirements for anchorages in 
situations where employers can demonstrate that installing anchorages 
for personal fall arrest systems as well as using any other 
conventional fall protection is infeasible or creates a greater hazard 
(Sec.  1910.28(b)(1)(ii)). Because the length of chimney sweep jobs 
varies widely as does the time to install anchors, individual 
determinations on whether installation of personal fall protection 
anchorages would make the job more dangerous than not using the 
required fall protection are required. Where anchorages are infeasible 
or create a greater hazard, employers must develop and implement a fall 
protection plan, including implementing other control measures, to 
eliminate or reduce fall hazard hazards for workers.
    OSHA also differs with the NCSG's statement above with respect to 
time requirements and expense for installing fall protections. In 
response to a question from the OSHA panel on the feasibility and 
potential benefits of anchorage and lifeline systems on roofs, a 
representative of the Industrial Safety Equipment Association stated in 
the public hearing:

    In the event of existing construction there are permanent roof 
anchors that can be installed on residential structures and other 
types of facilities, buildings and so on that can be installed after 
the construction. And depending upon the type of construction, those 
can range in cost anywhere from, you know, $35 to a few hundred 
dollars. And they have varying degrees of installation, again 
depending upon the type of structure.
    There are also--if it's new construction there are different 
construction techniques where the anchors can be installed, for 
instance, on the roof truss before the truss is put up into place so 
that the anchor's already up there and then you can use first man 
type systems to anchor your lifeline on the ground before the worker 
has to climb to do the work at the height.
    So there are various types of roof anchor products. And you 
know, I would--every fall protection equipment manufacturer 
manufactures a number of different types specifically for the 
roofing industry (Ex. 329 (1/18/2011), pp. 176-177).

OSHA also notes that where an employer can show that it is not feasible 
to use guardrails, safety nets, or personal fall protection systems in 
work on residential roofs (or it creates a greater hazard), the final 
rule requires the employer to develop and implement a fall protection 
plan and training meeting the requirements of the construction standard 
(final rule Sec.  1910.28(b)(1)(ii)).

    Charles Lankford of Rios & Lankford Consulting International 
challenged OSHA's finding in the PEA that fatalities involving falls 
represent a risk so significant that only a revised standard with a 
scope covering all of general industry will address the problem:

    The relative ranking of falls appears to have more to do with 
the falling rate of workplace homicides than with an increase in 
fatal falls, since the rate of fatal falls has remained fairly 
constant at around 5 and 6 fatal falls per million employees for 
decades.
    While it is true that fatal falls were 14% of all fatalities 
(2009 BLS data), this was not evenly distributed among the 
industrial sectors. In the ``goods producing'' sector, falls were 
the second (or third) leading cause of death, and were ten times 
more likely than a homicide to be the cause of death. This is the 
major category that includes mining, agriculture, construction and 
manufacturing.
    In contrast, in the service sector, falls were the third (or 
fourth) leading cause of death. In the service sector overall, 
homicides were twice as likely to be the cause of death as a fall. 
In some NAIC codes, homicides were 4 times more likely to be the 
cause of death than a fall. The service sectors where fatal falls 
were relatively more likely were: (1) Durable goods wholesale; (2) 
utilities; (3) information; and (4) administrative and waste 
services.
    I've focused on fatal falls data rather than non-fatal falls 
because the non-fatal data are more subject to variations from 
record-keeping interpretations, data initiatives, etc.
    Never-the-less 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).

In response to Mr. Lankford's comment, OSHA notes that, combining data 
taken from Tables V-1 and V-13, the roughly 5.2 million workers 
directly exposed to fall hazards had approximately 187,000 lost-workday 
injuries resulting from falls each year, or 36 injuries per 1,000 
workers annually. The hazards faced by these employees are similar, 
even though they work in a broad range of industries. OSHA believes, as 
indicated by Mr. Lankford's comment, that the risk of fall-related 
injuries, combined with the risk of fall-related fatalities, remained 
at a constant rate in recent years and that the final rule will help 
prevent a substantial number of them. Accordingly, OSHA concludes that 
falls constitute a safety threat best addressed by the final rule's 
revisions to existing subparts D and I.
d. Monetized Benefits, Net Benefits, and Cost Effectiveness
    The previous section showed that OSHA judges that complete 
compliance with the revised standard will result in the prevention of 
29 deaths and 5,842 lost-workday injuries each year. Consistent with 
current federal regulatory methodologies recommended by OMB Circular A-
4, discussed below, the Agency assigned a dollar value to these safety 
benefits.
    In estimating the value of preventing a fatality, OSHA followed the 
approach established by the U.S. Environmental Protection Agency (EPA). 
EPA's Guidelines for Preparing Economic Analyses provides a detailed 
review of methods used to estimate mortality-risk values, and 
summarizes the values obtained in the literature (EPA, 2000). 
Synthesizing the results from 26 relevant studies, EPA arrived at a 
mean

[[Page 82798]]

value for a statistical life (VSL) of $4.8 million (in 1990 dollars). 
EPA recommends this central estimate, updated for inflation, for 
application in regulatory analyses.
    Viscusi and Aldy (2003) presented a metaanalysis of studies in the 
economics literature that used a willingness-to-pay (WTP) methodology 
to estimate the imputed value of life-saving programs, and arrived at a 
value of approximately $7.0 for each avoided fatality. Applying the GDP 
deflator (U.S. BEA, 2010), this $7.0-million base number in 2000 
dollars yields an estimate of $8.7 million in 2010 dollars for each 
fatality avoided.
    This VSL estimate is consistent with EPA's estimate, and is also 
within the range of the substantial majority of such estimates in the 
literature ($1 million to $10 million per statistical life), as 
discussed in OMB Circular A-4 (OMB, 2003). Applying a VSL of $8.7 
million to the estimated number of prevented fatalities, OSHA estimates 
that the dollar value of the benefits associated with preventing fatal 
accidents from compliance with revised subparts D and I will be $252.3 
million annually.
    OSHA also reviewed the available research literature regarding the 
dollar value of preventing an injury. In the paper cited immediately 
above, Viscusi and Aldy conducted a critical review of 39 studies 
estimating the value of a statistical injury (Viscusi and Aldy, 2003). 
In their paper, Viscusi and Aldy reviewed the available WTP literature 
to identify a suitable range of estimates; using WTP to value non-fatal 
injuries is the approach recommended in OMB Circular A-4.
    Viscusi and Aldy found that most studies resulted in estimates in 
the range of $20,000 to $70,000 per injury (in 2000 dollars), although 
several studies resulted in higher estimates. That some studies used an 
overall injury rate, and others used only injuries resulting in lost 
workdays, partly explains the variation in these estimates. The 
injuries prevented by final subparts D and I often involve 
hospitalization and, therefore, are likely to be more severe than the 
majority of lost-workday injuries. In addition, injuries resulting from 
falls involve more pain and suffering, more expensive treatments, and 
generally longer recovery periods than other lost-workday 
injuries.\117\
---------------------------------------------------------------------------

    \117\ In 2009, the median number of days away from work was 14 
days for falls to a lower level, whereas the median number of days 
away from work for all events or exposures leading to injury or 
illness was 8 days (BLS, 2012). For more discussion of this issue, 
see Part II of this document.
---------------------------------------------------------------------------

    Thus, it is reasonable to believe that the value of a statistical 
injury for this rulemaking will be in the upper part of the reported 
range of estimates. Nevertheless, in the preliminary benefits analysis 
discussed in the PEA, OSHA used a mid-range estimate--$50,000--to 
assess monetized benefits for injuries and, for this FEA, raised that 
estimate to $62,000 (2010 dollars) to account for a rise in the cost of 
living since 2000, the base year for the monetized values estimated by 
Viscusi and Aldy when the authors published their 2003 study. Thus, 
with an estimated 5,842 injuries a year prevented by the final 
standards, OSHA determined that the dollar value of prevented injuries 
through compliance with revised subparts D and I will total $362.2 
million annually.
    OSHA estimates that the combined dollar value of prevented 
fatalities and injuries through compliance with the final revisions to 
subparts D and I will total $615 million per year. Comparing gross 
monetized benefits with costs of compliance (discussed in more detail 
in section V.F, below), OSHA estimates that the net monetized benefits 
of the final standard will be $310 million ($615 million in benefits--
$305.0 million in compliance costs; all figures rounded). Table V-14 
summarizes the compliance costs, benefits, net benefits, and cost 
effectiveness of the final standards.
    There are other benefits of the final standards that OSHA neither 
quantified nor monetized. First, OSHA did not estimate the number of 
fall injuries prevented that do not result in lost workdays. Second, 
OSHA did not estimate improvements in the efficiency of compliance 
associated with clarifying the existing rule and bringing it into 
closer correspondence with current voluntary standards.

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E. Technological Feasibility

    OSHA reviewed the substantial evidence collected throughout this 
rulemaking, including the data and comments submitted to the record in 
response to the earlier proposed standard published on April 10, 1990, 
the notice reopening the record published on May 2, 2003, and the 
recent NPRM (May 24, 2010). Accordingly, OSHA determined that 
compliance with the final revisions to subparts D, I, and other 
subparts in 29 CFR part 1910 (general industry), as described in this 
final rule, is technologically feasible. This subsection presents the 
details of this conclusion with regard to specific requirements.
1. Technological Feasibility for Final Subpart D (Walking-Working 
Surfaces)
General Requirements (Sec.  1910.22)
    Section 1910.22 of final subpart D revises existing requirements 
addressing housekeeping, safe aisles and passageways, covers and 
guardrails, and floor-loading protection, and introduces new 
requirements associated with broad areas of safety on walking-working 
surfaces. Final paragraphs (a), (b), (c), and (d) of this section 
address, respectively, surface conditions, application of loads, access 
and egress, and inspection, maintenance, and repair. OSHA received no 
testimony in the record suggesting that there would be feasibility 
concerns with final Sec.  1910.22.
    Final paragraph (a) requires that employers keep all walking-
working surfaces in a clean, dry, orderly, and sanitary condition, and 
free of hazards such as sharp or protruding objects, loose boards, 
corrosion, leaks, and spills. Data in OSHA's inspection file analyzed 
by ERG (ERG, 2007) indicate a high level of compliance with similar 
requirements in existing subpart D, suggesting that there have been 
few, if any, technical challenges to employers; therefore, this 
provision is technologically feasible.
    Final Sec.  1910.22(b) requires that employers ensure that each 
walking-working surface can support the maximum intended load for that 
surface. This language restates and simplifies the existing regulatory 
text, and should not present any technological feasibility 
difficulties. The next provision, final Sec.  1910.22(c), requires that 
employers provide employees with, and ensure that they use, a safe 
means of access and egress to and from walking-working surfaces. 
Although new, this requirement, in OSHA's judgment, will not impose any 
duties on employers beyond the limits of feasibility.
    Paragraph (d) of final Sec.  1910.22 requires employers to 
regularly inspect and maintain, as necessary, all walking and working 
surfaces in a safe condition. Employers also must correct and repair 
all hazardous conditions on walking-working surfaces before employees 
use them, and guard the surfaces until completing repairs to prevent 
employee use. A qualified employee must perform or supervise any 
correction or repair that involves the structural integrity of a 
walking-working surface. Employers can accomplish the inspection, 
maintenance, repair, and guarding of surfaces with technologically 
feasible and currently available methods.
Ladders (Sec.  1910.23)
    Final Sec.  1910.23 covers ladders. Accordingly, final Sec.  
1910.23(a) specifies that the section applies to all ladders except for 
ladders used only for firefighting, rescue operations, tactical law 
enforcement operations, or training for these operations, and ladders 
designed into, or are an integral part of, a machine or piece of 
equipment. In addition, final Sec.  1910.23(b) provides general 
requirements for all ladders; final paragraph (c) addresses portable 
ladders; final paragraph (d) presents standards for fixed ladders; and 
final paragraph (e) addresses mobile ladder stands and mobile ladder 
stand platforms. OSHA based the requirements in this section partly on 
current American National Standards Institute (ANSI) standards, A14 
series. The ANSI standards provide guidelines for industry, and are 
generally compatible with current industry practices and technology. 
Since manufacturers make and test virtually all manufactured ladders to 
meet these ANSI standards, OSHA believes there will be few problems 
regarding technological feasibility.
    Most of the requirements for ladders in final subpart D do not 
represent any change from existing OSHA requirements. For both existing 
and new requirements, current and readily available technology is 
capable of meeting or exceeding the design and strength criteria 
specified for ladders. The final language is clearer and more concise 
than the existing regulatory text. Moreover, OSHA introduced greater 
compliance flexibility into the final standard, such as in the case of 
the range provided in the spacing requirements for rungs, cleats, and 
steps (see final Sec.  1910.23(b)).
    Comments submitted to the docket in response to the 1990 proposed 
rule generally confirmed OSHA's preliminary conclusion that compliance 
with the proposed requirements for ladders would be technologically 
feasible. Although several commenters addressed the appropriateness or 
the costs associated with the proposed ladder requirements, they did 
not question the technological feasibility of the requirements. 
Similarly, during the reopening of the record following publication of 
the 2010 NPRM, commenters raised concerns about the potential costs for 
protecting workers on ladders in particular circumstances (see, for 
example, Exs. 121; 301; 342) or the rationale for excluding ladders 
from the duty to provide fall protection for heights above four feet 
(Ex. 185). However, there was no evidence presented that would suggest 
that the final standard for ladders is technologically infeasible.
    OSHA grouped training in the proper care, use, and inspection of 
ladders with other training requirements under final Sec.  1910.30. 
Compliance with these training requirements does not require any 
additional or new technology.
Step Bolts and Manhole Steps (Sec.  1910.24)
    Final subpart D provisions for step bolts and manhole steps address 
basic criteria for the safe design, construction, and use of these 
components. For example, final Sec.  1910.24(a)(3) specifies uniform 
spacing of step bolts between 12 inches (30 cm) and 18 inches (46 cm) 
measured center to center, while Sec.  1910.24(b)(2)(iv) requires 
uniform spacing of manhole steps not more than 16 inches (41 cm) apart. 
Although these requirements will be new to subpart D, OSHA based the 
engineering criteria on consensus standards established by the American 
Society for Testing and Materials (ASTM), which have wide acceptance 
throughout industry. Therefore, OSHA believes that existing technology 
is capable of meeting these performance criteria and that this 
technology is feasible to apply.
Stairways (Sec.  1910.25)
    Section 1910.25 in the final standard describes OSHA safety 
specifications for stairs, and covers all types of stairs except stairs 
serving floating roof tanks; stairs on scaffolds; stairs designed into 
machines or pieces of equipment; and stairs on self-propelled motorized 
equipment. Requirements in this section address the obligations to 
install handrails, stair-rail systems, and guardrail systems, as 
necessary. Other requirements in this section describe design 
specifications such as the appropriate load capacities that stairs

[[Page 82801]]

must be able to support, minimum vertical clearances for different 
types of stairs, the height of risers, the depth of treads, and the 
proper angle of stairs. These requirements are not substantially 
different from the requirements of the existing standard; OSHA drew the 
requirements from NFPA and ANSI consensus codes, indicating that 
industry already adopted the requirements as a feasible industry 
practice using existing technology.
Dockboards (Sec.  1910.26)
    Section 1910.26 provides for the safe movement of personnel and 
equipment on dockboards (defined in the final standard to include 
bridge plates and dock plates), and relocates, updates, and clarifies 
requirements for dockboards located in existing Sec.  1910.30, Other 
working surfaces. The design, construction, and maintenance of these 
surfaces must be such as to support their maximum intended load and 
prevent transfer vehicles from running off the edge. According to final 
Sec.  1910.26(c), employers must secure portable dockboards with 
anchors or other means, when feasible, to prevent displacement while in 
use. Other requirements in this section prevent the sudden displacement 
of vehicles on dockboards that are in use, and require handholds or 
other means for safe handling. Compliance with the final requirements 
for dockboards does not necessitate the use of any new technologies, 
materials, or production methods; thus, this section is technologically 
feasible.
Scaffolds and Rope Descent Systems (Sec.  1910.27)
    Section 1910.27 introduces to subpart D the existing requirements 
for scaffolds in the construction standards. Thus, for final subpart D, 
OSHA directly references subpart L in 29 CFR part 1926. In addition, 
new requirements for rope descent systems will include inspection prior 
to each workshift; proper rigging; a separate personal fall arrest 
system; minimum strength criteria for lines used to handle loads; 
establishment of rescue procedures; effective padding for ropes; and 
stabilization for descents greater than 130 feet. In addition, final 
Sec.  1910.27(b)(2) prohibits the use of rope descent systems for 
heights greater than 300 feet (91 m) above grade unless the employer 
can demonstrate that it is not feasible to access such heights by any 
other means or those other means pose a greater hazard than using RDS. 
Although new to subpart D, industry adopted these and other 
specifications for the safe use of scaffolds many years ago owing to 
the publication of ANSI I-14.1-2001, Window Cleaning Safety (Ex. 14), 
and a March 12, 1991, OSHA memorandum to Regional Administrators 
addressing the ANSI standard and the provisions listed above (Ex. OSHA-
S029-2006-0662-0019). Therefore, OSHA judges the requirements in this 
new section on scaffolds to be technologically feasible.
Duty To Have Fall Protection and Falling-Object Protection (Sec.  
1910.28)
    Section 1910.28 restates, clarifies, and adds flexibility and 
consistency to existing OSHA requirements for providing fall protection 
to employees. In addition to general requirements for the strength and 
structural integrity of walking-working surfaces (with reference to 
Sec.  1910.29, Fall and falling-object protection systems criteria and 
practices), this section of the final rule also includes detailed 
specifications on the following surfaces for which employers have a 
duty to provide fall protection:
     Unprotected sides and edges;
     Hoist areas;
     Holes;
     Dockboards;
     Runways and similar walkways;
     Dangerous equipment;
     Wall openings;
     Repair pits, service pits, and assembly pits less than 10 
feet in depth;
     Fixed ladders (that extend more than 24 feet (7.3 m) above 
a lower level);
     Outdoor advertising (billboards);
     Stairways;
     Scaffolds and rope descent systems;
     Work on low-slope roofs;
     Slaughtering facility platforms; and
     Walking-working surfaces not otherwise addressed.
    Hazards on walking-working surfaces can include accidental 
displacement of materials and equipment. To prevent objects from 
falling to lower levels and to protect employees from the hazards of 
falling objects, final Sec.  1910.28(c) requires head protection and 
screens, toeboards, canopy structures, barricades, or other measures.
    The final subpart D standards reaffirm the existing Agency 
interpretation and enforcement practice that fall protection is 
generally necessary for fall hazards associated with unprotected sides 
or edges of any surface presenting a fall hazard of four feet or more. 
In this regard, the obligation of employers to provide fall protection 
remains substantially unchanged from existing requirements in final 
subpart D.
    Whereas the existing requirements specify that employers must 
protect employees by installing standard guardrail systems or 
equivalent systems, the final standard more clearly allows employers to 
provide fall protection through any of several methods, including 
guardrails, personal fall arrest systems, and safety nets. OSHA 
recognizes that some work surfaces may present difficult challenges for 
applying fall protection. One participant in the 1990 NPRM (Ex. OSHA-
S041-2006-0666-0194) pointed out that maintenance work may require that 
employees be on equipment such as compressors, turbines, or pipe racks 
at elevations in the range of 4 to 10 feet above lower surfaces, and 
that guardrails, platforms, ladders, or tying off would not always be 
possible in such situations. In the current rulemaking for walking-
working surfaces, the Sheet Metal and Air Conditioning Contractors 
National Association (SMACNA) (Ex. 165) appeared to express a similar 
concern with respect to the duty to provide fall protection in a 
manufacturing plant. OSHA notes that its enforcement procedures allow 
special consideration in unique circumstances when compliance with a 
particular standard may not be feasible or appropriate.\118\
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    \118\ See OSHA's Field Operation Manual: https://www.osha.gov/OshDoc/Directive_pdf/CPL_02-00-150.pdf.
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    In general, employers should be able to address and eliminate 
employee exposures to potential slip, trip, and fall hazards by 
planning and designing adequate facilities and work procedures. Based 
on widespread industry practice, OSHA concludes that the fall 
protection requirements specified by this section of the final 
standards are technologically feasible.
Fall Protection Systems and Falling-Object Protection--Criteria and 
Practices (Sec.  1910.29)
    In Sec.  1910.29, OSHA specifies or provides references for revised 
criteria for fall protection systems such as guardrail systems; 
handrails; stair rail systems; cages, wells, and platforms used with 
fixed ladders; toeboards; designated areas; travel restraint systems; 
safety net systems; grab handles; and fall protection for the outdoor 
advertising industry. Final Sec.  1910.140, discussed at length below, 
provides criteria for personal fall protection systems that OSHA is 
adding to existing subpart I through this rulemaking.
    With regard to guardrail systems (Sec.  1910.29(b)), the final 
subpart D standards do not substantially modify existing requirements 
involving height, strength, or other criteria. In some circumstances on 
low slope roofs for

[[Page 82802]]

which the existing standard requires guardrails (or equivalent 
protection), the final standard allows employers to use designated 
areas.
    Rather than explicitly requiring midrails in guardrail systems as 
in the existing subpart D standards, the final subpart D standards use 
performance-oriented criteria that allow midrails, screens, mesh, 
intermediate members, solid panels, or equivalent intermediate 
structural members. Compliance with the existing standards would 
generally also meet the requirements of the final standards. 
Furthermore, the final standard allows the employer to choose any of a 
wide variety of currently used and readily available guardrail system 
materials and designs to meet the performance-oriented criteria. Based 
on these considerations, the final subpart D requirements for guardrail 
systems are technologically feasible.
    Final Sec.  1910.29(c) references the construction standards to 
specify criteria for safety net systems. The criteria for safety nets 
established through this final rulemaking include requirements for drop 
tests and inspections for each safety net installation. Other criteria 
for safety nets established in final subpart D involve design and 
strength standards. Employers can achieve all of these criteria by 
using existing and commonly available safety net systems. The final 
requirements for installing safety net systems reflect basic safety 
considerations already adopted by manufacturers of equipment and by 
employers. Readily available and currently used technology is capable 
of meeting these requirements.
    The final standard introduces the option of designated areas (see 
final Sec.  1910.29(d)) as a means of fall protection available to 
employers, in addition to other acceptable fall protection measures in 
certain circumstances on low slope roofs. The technology necessary to 
implement this option consists of basic materials such as rope, wire, 
or chain, and supporting stanchions. Employers can achieve the 
strength, height, and visibility criteria specified in the final 
standard for designated areas with currently available materials and 
technology.
    Requirements for covers for holes in floors, roofs, and other 
walking-working surfaces in the final standard (see final Sec.  
1910.29(e)) simplify and consolidate the proposed requirements for 
covers and now consist of two new provisions requiring that the cover: 
(1) Is capable of supporting without failure, at least twice the 
maximum intended load that may be imposed on the cover at any one time; 
and (2) Is secured to prevent accidental displacement. The performance-
oriented criteria applicable to covers allow for the application of a 
wide variety of technological solutions.
    Requirements in final subpart D for handrail and stair rail systems 
(Sec.  1910.29(f)) specify criteria for height, strength, finger 
clearance, and type of surface, among others. Employers currently meet 
these criteria with existing technology, and a wide variety of 
different materials and designs are available to comply with the 
requirements.
    New requirements in final paragraph (g) of this section specify 
that landing platforms, as well as all platforms used with fixed 
ladders and cages and wells, provide a horizontal surface that meets 
specified dimensions are feasible considering the availability of 
appropriate materials and engineering expertise. Final Sec.  1910.29(g) 
also sets criteria for ladder cages and wells, if used on fixed 
ladders. OSHA notes that the Agency is phasing out the use of cages and 
wells as a means of fall protection on fixed ladders. See full 
discussion in summary and explanation of Sec.  1910.28(b)(9).
    Final paragraph (h) includes requirements for qualifying employees 
to climb ladders on outdoor advertising that expire two years after 
publication of the final standard (see Sec.  1910.28(b)(10)). After 
this two-year period, employers in outdoor advertising must provide one 
or more of the fall protection systems specified in Sec.  1910.28 for 
employees who climb fixed ladders. Although new to subpart D, the 
training and other administrative controls that characterize the 
development and protection of those working without fall protection 
have been around for many years. Furthermore, evidence in the record 
indicates that some employers in outdoor advertising are now providing 
conventional fall protection for ladders (Ex. 369). Therefore, OSHA 
concludes that there will be few, if any, technological hurdles for 
industry to implement the provisions for qualified climbers before and 
after the two-year expiration date.
    Final paragraph (i) establishes criteria and practice requirements 
for ladder safety systems permanently attached to fixed ladders or 
immediately adjacent to such ladders. A ladder safety system is a 
conventional fall protection system designed to eliminate or reduce the 
possibility of falling from a fixed ladder (see definition of ``ladder 
safety system'' in final Sec.  1910.21(b)). According to this 
definition, it usually consists of the following:
     A carrier, which is a rigid or flexible track attached to 
or adjacent to the fixed ladder;
     A safety sleeve, which is moving component that travels on 
the carrier;
     A lanyard;
     Connectors; and
     A body harness.
    Although the existing rule at Sec.  1910.21(e)(13) addresses 
``ladder safety devices,'' which serve the same purpose as ladder 
safety systems, the existing rule does not specify criteria or practice 
requirements for those devices. As a result, OSHA drew many of the 
proposed ladder safety system criteria and practice requirements from 
the construction ladder standard at Sec.  1926.1053(a)(22) and (23). 
The construction standard allows the use of body harnesses or body 
belts with ladder safety systems. OSHA also drew ladder safety system 
criteria and practice from ANSI/ASC A14.3-2008. The Agency notes the 
national consensus standard does not include the use of body belts with 
ladder safety systems.
    As noted above, the ladder safety system criteria and practice 
requirements in the final standard have been published in an OSHA 
construction standard and in a national consensus standard, and 
therefore any technological feasibility concerns for the range of 
structures encountered in general industry would very likely have been 
addressed in the proceedings that led to those publications. Therefore, 
OSHA concludes that the final requirements for ladder safety systems 
are technologically feasible.
    Final paragraph (j), like the proposed rule, requires that body 
belts, body harnesses, and other components of personal fall arrest 
systems, work-positioning systems, and travel restraint systems, meet 
the applicable requirements in final Sec.  1910.140. Employers 
currently meet these criteria with existing technology, and a wide 
variety of different materials and designs are available to comply with 
the requirements.
    Final Sec.  1910.29(k) clearly specifies criteria for systems that 
provide falling-object protection. OSHA redrafted the provisions in the 
existing standard addressing toeboards using specification language 
found in the OSHA construction standard (Sec.  1926.502(j)(3)) and with 
national consensus standards (ANSI/ASSE A10.18-2012 (Section 5.7), and 
ANSI/ASSE A1264.1-2007 (Section 4.1.5) while other requirements for 
guardrail systems and canopies specified in the design criteria are 
within current engineering norms. Therefore, OSHA concludes that the

[[Page 82803]]

falling-object protection provisions are technologically feasible.
    Lastly, final paragraph (l) contains design and strength criteria 
for grab handles. For the most part, these requirements are consistent 
with the requirements for grab handles in existing subpart D and are, 
therefore, technologically feasible.
Training Requirements (Sec.  1910.30)
    Section 1910.30 introduces requirements specifying that employees 
receive training from a qualified person, and that the training, which 
applies to personal fall protection equipment, prepare employees to 
recognize fall hazards in the work area, in the procedures to follow to 
minimize these hazards, and in the installation, inspection, operation, 
maintenance, disassembly, and correct use of personal fall protection 
equipment. Employers also must train workers in the proper care, 
inspection, storage, and use of equipment subpart D covers before 
workers use that equipment, such as dockboards, RDS, and designated 
areas. Employers must retrain employees when changes occur in the 
workplace or in the types of fall protection systems or equipment used 
that renders the previous training obsolete or inadequate, or employees 
exhibit an absence of understanding or skill needed to use the 
equipment or perform the job safely; employers also must train 
employees in a manner the employees understand. Because of extensive 
evidence in the record that the training required under the final 
standard has widespread acceptance throughout industry (Exs. 53; 73; 
96; 127; 172; 189; 205; 216; 222; 226; 329 (1/18/2011), pgs. 82, 117, 
186, 258; 329 (1/19/2011), pgs. 22, 24; 329 (1/20/2011), pgs. 182, 287; 
329 (1/21/2011), pgs. 9, 92, 200, 206; 364), such training will not 
present technological feasibility concerns.
2. Technological Feasibility for Final Subpart I (Personal Protective 
Equipment)
General Requirements (Sec.  1910.132)
    Revised Sec.  1910.132(g) of subpart I in this final rulemaking 
requires that employers conduct hazard assessments and training in 
accordance with the requirements in Sec.  1910.132(d) and (f) in 
workplaces when employers provide personal fall protection equipment to 
employees. Survey data indicate that a significant percentage of 
employers currently assess the occupational fall hazards encountered by 
their employees, and that a similarly large percentage of employers 
train their employees in the proper use of personal fall protection 
equipment (OSHA, 1994). These hazard assessment and training 
requirements, therefore, will not present technological feasibility 
concerns.
Personal Fall Protection Systems (Sec.  1910.140)
    The final subpart D standards include provisions for personal fall 
protection systems, including components such as harnesses, connectors, 
lifelines, lanyards, anchorages, and travel restraint lines. Section 
1910.140 of subpart I specifies the criteria that these components must 
meet when employees use them.
    The revisions to the walking-working surfaces and fall protection 
systems described in the final rule include revisions to several 
subparts in 29 CFR part 1910 other than subparts D and I. For purposes 
of this analysis, the determinations of technological feasibility 
described in this FEA include the revisions of these other subparts.
    The requirements applicable to personal fall protection systems 
specified by this final rulemaking codify basic safety criteria for 
these systems. These criteria reflect common industry safety practices, 
and currently and readily available equipment meets these criteria. The 
final standards generally do not require changes in current technology 
or practices for employers who use standard safety equipment and follow 
standard safety procedures. The current and ready availability of 
personal fall protection systems, including personal fall arrest 
systems, positioning systems, and travel restraint systems, and the 
application of these technologies in diverse industrial activities and 
circumstances, demonstrate the technological feasibility of these 
requirements in the final standard.
3. Summary of Technological Feasibility
    In conclusion, OSHA determined that compliance with the final 
revisions to subparts D, I, and other affected subparts of 29 CFR part 
1910 is technologically feasible. Thus, there is no technological 
hindrance to the significant improvement of employee safety on walking 
and working surfaces resulting from implementation of this final rule.

F. Costs of Compliance

1. Introduction
    This subsection presents OSHA's final analysis of the compliance 
costs associated with the final standard for walking-working surfaces 
and fall protection in general industry. Following discussion on the 
public comments addressing OSHA's preliminary estimate of compliance 
costs and OSHA's response to those comments, the cost analysis proceeds 
into a discussion of the assumptions used in the analysis. OSHA based 
its final analysis of compliance costs largely on the cost analysis 
conducted by OSHA's contractor, Eastern Research Group (ERG, 2007), and 
the Preliminary Economic Analysis. The presentation below focuses on 
what constitutes the regulatory baseline (i.e., current conditions) 
from which OSHA measured the costs, impacts, and benefits of the final 
rule. The Agency also discusses the effect of consensus standards and 
the compliance rates for the existing rule on the cost analysis (i.e., 
when codification of existing consensus standards results in little to 
no incremental costs for the final rule).
    Following the discussion of baseline assumptions, the next 
subsection reviews the final rule on a paragraph-by-paragraph basis for 
those paragraphs that potentially could result in costs to industry. 
The final subsection examines one-time costs to bring employers into 
compliance with the rule, as well as the annual costs for training new 
employees and retraining existing employees. OSHA presents the cost 
estimates by affected industry, and by applicable provision. The final 
subsection concludes with a discussion and tables that summarize the 
costs for each section of the standard, and aggregates them to estimate 
total costs.
2. Public Comments on the Preliminary Cost Analysis
    OSHA requested comment on the assumptions, unit costs, and 
analytical methods applied in the preliminary cost analysis for 
proposed subparts D and I. The discussion below summarizes the public 
comments addressing OSHA's preliminary cost analysis and OSHA's 
response to those comments.
    The Sheet Metal and Air Conditioning Contractors National 
Association (SMACNA) was critical of OSHA's estimate of compliance 
costs, stating:

    A review of the anticipated costs indicates that OSHA has under-
estimated the actual costs to employers to comply with the 
requirements of these rules. SMACNA encourages OSHA to conduct 
further outreach to employers to find the true costs associated with 
the revisions to company operations, purchasing equipment and 
conducting training that these proposed standards would require. 
With over 5 million small businesses affected by these requirements 
(OSHA's data), it is fair and prudent upon OSHA to outreach to these 
companies by convening a Small Business Regulatory Enforcement 
Fairness Act panel. (Ex.165, p. 5.)


[[Page 82804]]


    With respect to the convening of a Small Business Regulatory 
Enforcement Fairness Act (SBREFA) panel, OSHA in the NPRM certified 
that the proposed standard would not have a significant impact on a 
substantial number of small firms, which satisfied the statutory 
requirements at the time OSHA published the NPRM. Other stakeholders 
who also requested that OSHA convene a SBREFA panel include the 
National Federation of Independent Businesses (Ex. 173) and the U.S. 
Chamber of Commerce (Ex. 202). With respect to SMACNA's assertion that 
OSHA underestimated compliance costs, SMACNA did not provide any 
further details to support its statement, and, therefore, OSHA has no 
basis to evaluate the criticism.
    ORC HSE Networks, a division of Mercer LLC, expressed concerns 
about the proposed requirement, found in Sec.  1910.29(b)(1), that the 
top edge of guardrail systems be 42 inches (107 cm), plus or minus 3 
inches (8 cm), above the walking-working surface. Mercer's comment 
reads as follows:

    In a footnote on page 28894 of the May 24 notice of proposal, 
OSHA stated that it decided not to include existing guardrails 
having top edges as low as 36 inches from the working surface in any 
of the ``grandfathering'' provisions of this rule despite such a 
provision having been included in the previous proposals and 
acknowledged as a ``de minimis'' violation of the existing standard 
in various OSHA letters of interpretation. While OSHA states that it 
does not consider 36 inches to be ``equally safe'' to the ``42 
inches nominal'' requirement in the existing standard or the 42 
inches plus or minus three inches in the proposed rules, OSHA 
provided no rationale or support for this proposed decision.
    OSHA's economic and benefits analyses should estimate the number 
of injuries that would be prevented if existing guardrails that have 
heights between 36 and 39 inches must be replaced with those having 
at least a 39-inch height. In addition, OSHA should determine the 
costs that will be associated with replacing guardrails with top 
edge heights between 36 and 39 inches and include them in the 
regulatory and economic feasibility analyses for these rules. 
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 effective date of 
the new rules. Only new or remodeled facilities should be required 
to follow the new requirement for top edge height of guardrails. 
(Ex. 170, p. 6.)

As noted in the NPRM (75 FR 28894), the proposed provision for the 
height of guardrail systems was essentially the same as the existing 
requirement in Sec.  1910.23(e)(1). Despite proposed grandfathering of 
guardrails with heights as low as 36 inches (above the working surface) 
under the two previous proposals (1973 and 1990), OSHA believes that in 
the 40 or so years since it issued the existing standard, a large 
percentage of the walking-working surfaces protected by guardrails are 
in compliance with the 39-inch minimum-height standard. In the absence 
of data in the record on the range of heights of guardrails throughout 
industry, OSHA believes that the percentage of guardrail systems not 
meeting the minimum height requirement is low. Therefore, if OSHA's 
belief is correct, the additional cost burden and economic impacts for 
employers not in compliance with the final height requirement would be 
relatively insubstantial and, therefore, would not present economic 
feasibility concerns.
    Corporate Cleaning Services, a leading window washing company in 
Chicago, urged OSHA to consider the economic ramifications of limiting 
the permitted distance when using rope descent systems (RDS) to 300 
feet (Ex. 126). In written testimony, Corporate Cleaning Services 
stated that the use of suspended scaffolds could add up to 30 percent 
to the time required to complete a job compared with RDS. By 
comparison, in a post-hearing comment, Valcourt Building Services 
estimated that the cost increase would range from 10 to 20 percent if 
it had to use a permanent scaffold installation as an alternative to 
RDS (Ex. 358). In response to these comments, OSHA in this FEA 
estimated the costs and economic impact of the 300-foot distance 
limitation for RDS specified in the final rule. OSHA discusses the 
revised cost estimate below under Sec.  1910.27, Scaffolds and rope 
descent systems.
    Charles Lankford of Rios & Lankford Consulting International argued 
that OSHA's requirement, under the paragraph for general conditions, 
that walking-working surfaces be designed, constructed, and maintained 
free of recognized hazards would impose legal responsibilities, and 
hence, legal costs, on employers that OSHA neglected in the PEA. Mr. 
Lankford stated:

    My review of the risk-benefit analysis in the proposed rule did 
not find that OSHA considered the costs of defending from citations 
being issued after the collapse of a surface the employer did not 
have tested or evaluated by an engineer after a plant purchase, that 
might have resulted in a fatality. It is reasonable to expect that 
litigation costs arising from new regulations should be included in 
an estimate of costs, when conducting a risk-benefit analysis.
    OSHA does not seem to have considered all the ramifications, or 
having considered them, opted to leave them in a grey area so as to 
more broadly enforce these provisions to the detriment of employers. 
(Ex. 368.)

OSHA agrees with Mr. Lankford that the failure of employers to exercise 
due diligence in ensuring the safety of workers on surfaces could 
result in torts and other legal expenses. However, the probability of 
legal liability will diminish to the extent that employers expend the 
resources necessary to achieve compliance with more stringent fall 
protections.

    In a comment to the record and testimony at the public hearing, the 
National Chimney Sweep Guild (NCSG) expressed concerns about the costs 
and economic feasibility of compliance with the proposed standard for 
the businesses performing chimney-cleaning services and other related 
work on residential roofs (Exs. 150; 296; 329 (1/18/2011), p. 342; 
365). The following post-hearing comment summarizes the views voiced by 
NCSG throughout the rulemaking:

    If adopted and enforced as proposed, the provisions of the 
Proposed Rule that address the structural integrity and condition of 
walking-working surfaces, the use of ladders, and the selection and 
use of fall protection would: (1) substantially affect the manner in 
which chimney sweeps perform their work; (2) expose sweeps (and/or 
the roofing trade) to greater hazards than current industry 
practices; (3) threaten the continuing economic viability of the 
chimney sweeps industry; and (4) threaten the availability of 
chimney inspection, sweeping and repair services at affordable 
prices, which would be expected to result in less chimney 
inspections/sweeping/repairs and a significant increase in 
residential fires and/or an increase in falls by homeowners or other 
self-employed individuals who would perform these tasks. (Ex. 365, 
pp. 2-3.)

Below under the heading ``Cost estimates'' and in section H, Regulatory 
Flexibility Screening Analysis, OSHA addresses NCSG's concerns.
3. Cost Assumptions
a. Baseline for Estimating Costs
    The Office of Management and Budget's guidance on regulatory 
analysis (OMB, 2003) discusses how to develop a baseline against which 
to measure the costs and benefits of a rule. The baseline should be the 
best assessment of conditions absent the proposed standard, and is 
frequently assumed to resemble the present practice broadly observed 
among affected employers (although the more technically correct 
approach from a benefit cost analysis viewpoint, where feasible, is to 
project the hypothetical future state of the world in the absence

[[Page 82805]]

of the rule). The baseline for this final cost analysis, then, includes 
rates of compliance with existing subparts D and I, as well as with 
applicable national consensus standards. For a discussion on the 
theoretical underpinnings for the use of consensus standards as a 
baseline in OSHA's cost analysis, see ERG, 2007.
    OSHA analyzed Agency inspections for fiscal year 2005 that resulted 
in a citation (OSHA, 2006a); see Table V-15. The first column in the 
table presents cases for which OSHA issued a citation for any reason, 
and the other columns in the table indicate cases of non-compliance 
with a section of 29 CFR part 1910, subpart D. Table V-15 may overstate 
the noncompliance rate because it does not include inspections for 
which no citations were issued.

BILLING CODE 4510-29-P

[[Page 82806]]

[GRAPHIC] [TIFF OMITTED] TR18NO16.210

    Based on the analysis presented in Table V-15, OSHA determined that 
upper-bound non-compliance rates for floor-guarding requirements in 
current Sec.  1910.23 vary by industry. For example, the Finance, 
Insurance, and

[[Page 82807]]

Real Estate category has the lowest non-compliance rate (2.8 percent), 
while Wholesale Trade has the highest non-compliance rate (13.6 
percent). For the requirements for fixed industrial stairs, the non-
compliance rates are quite low, ranging from 0 percent (Finance, 
Insurance, and Real Estate) to 2.7 percent (Wholesale Trade). For the 
remaining sections (portable wood ladders, portable metal ladders, 
fixed ladders, scaffolding, and manually propelled mobile ladder stands 
and scaffolds), non-compliance rates do not exceed 1.9 percent.
    Thus, for Sec. Sec.  1910.25 through 1910.29, the assumption of 100 
percent industry compliance with the existing requirements may be 
reasonable.\119\ That is, employers will incur costs only when the 
final requirements exceed the existing requirements. OSHA requested 
comments on rates and levels of non-compliance with respect to existing 
requirements in subpart D, but received no comments; therefore, OSHA 
applied the preliminary compliance estimates for existing subpart D in 
this FEA.
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    \119\ OSHA implicitly considered the costs for all industrial 
sectors to meet the existing standards when it published those 
standards.
---------------------------------------------------------------------------

    If meeting an existing requirement also would meet the final 
requirement, OSHA did not assign costs to the provision. For example, 
the existing language for Sec.  1910.27(b)(1)(iii) states that the 
clear length of a rung or cleat in a fixed ladder shall be a minimum of 
16 inches. Final Sec.  1910.23(b)(4)(iii) states that rungs and steps 
on rolling ladders used in telecommunication centers must have a 
minimum clear step or rung width of 8 inches (20 cm). A rolling ladder 
in telecommunications that meets existing requirements (16 inches) 
would also meet the new requirements (a minimum of 8 inches); hence, 
OSHA assigned no costs to the final requirement. Later in this cost 
analysis, a detailed provision-by-provision examination of potential 
costs will provide further concrete examples of OSHA's application of 
estimates of current industry compliance and practices.
b. Compliance With National Consensus Standards
    In some instances, the final rule's provisions reflect existing 
national consensus standards, and OSHA used information on adherence to 
those standards to estimate compliance rates with the concerned 
provisions. Due to general adherence to national consensus standards, 
for purposes of this analysis, national consensus standards serve as 
the ``baseline'' against which OSHA measured the incremental costs and 
benefits of the final standard. If the final standard requires a level 
of safety equivalent to that in an existing consensus standard, then 
there is no difference between the final standard and the baseline 
except that the final standard would be mandatory rather than 
voluntary. Thus, the costs are those costs associated with the change 
from a voluntary standard to a mandatory standard. In such cases, OSHA 
assumes employers in compliance with the voluntary consensus standard 
incur no additional costs to meet the final rule's requirements. Only 
that part of the employer population that currently does not comply 
with the voluntary standards would incur these costs. If, however, the 
final standard is more stringent than the consensus standard, OSHA 
assumed that employers who are not already following practices that 
would constitute compliance with the final standard would incur 
compliance costs solely attributable to the final OSHA standard.
    ERG developed a logic-flow diagram outlining the process for 
identifying costs associated with new regulatory language (see ERG, 
2007, Figure 3-2). The starting point is a side-by-side, provision-by-
provision comparison of the existing and final regulatory language. In 
many cases, the language changed to enhance comprehension of the 
regulation without changing the scope of activities covered or its 
requirements. In some cases, the final language gives the employer 
alternative methods of compliance that provide protection for employees 
equivalent to the original standard, thereby resulting in no costs to 
the employer.
    If there is a change from the existing to the final standard, the 
second decision point is to determine whether the final standard is 
equivalent to an existing consensus standard. If it is, then there 
would be no costs associated with the final standard for those 
employers already meeting the consensus standard, but there would be 
costs for those employers currently not meeting the consensus standard.
    Table V-16 lists the national consensus standards used in subparts 
D and I and the associated section of the final rule for subparts D and 
I that refer to each of these consensus standards.

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[[Page 82812]]


    At the next decision point, if the final standard differs from the 
existing requirements, the presence or absence of a ``grandfather'' 
provision determines whether employers incur costs to retrofit and 
upgrade to the new requirements when the standard becomes effective or 
when employers replace infrastructure or equipment at a time of their 
choosing. OSHA discusses the cost effects of grandfather provisions in 
more detail below and in the ERG report (ERG, 2007).
    Some equipment addressed by the final standard, such as portable 
ladders or mobile ladder stands, is commercially available to employers 
in ready-to-use condition. OSHA believes that manufacturers design and 
fabricate such equipment, in virtually all cases, to meet current 
consensus standards because equipment manufacturers seek to avoid: (1) 
The small market represented by employers that would purchase non-
compliant equipment, and (2) the liabilities associated with 
manufacturing non-compliant equipment.
    Typically, employers use architects, engineers, and/or contractors 
to design, fabricate, and install certain types of site-specific 
equipment. While it is conceivable that an employer might insist on 
installing nonconforming equipment, OSHA believes that professional 
standards for architects and engineers, local building codes, and 
potential liability concerns dictate that virtually all employers 
voluntarily use equipment conforming to existing national consensus 
standards. For these reasons, OSHA concludes that compliant equipment 
will be available to meet the final requirements of subparts D and I. 
For example, final Sec.  1910.23(b)(1) specifies that ladder rungs and 
steps must be parallel, level, and uniformly spaced when the ladder is 
in a position for use. While existing Sec.  1910.25(c)(2)(i)(b) covers 
steps, no existing OSHA standard covers rungs. However, current 
national consensus standards cover both rungs and steps (see Table V-
16).
    Likewise, the spacing requirements for the steps of step stools and 
the rungs, steps, and cleats of ladders covered by final paragraphs 
Sec.  1910.23(b)(3) and (4) are new (i.e., not in the existing 
standard); however, the current consensus standard for ladders includes 
these spacing requirements. Similarly, final Sec.  1910.23(d)(7) 
requires that grab bars on fixed ladders extend 42 inches (1.1 m) above 
the access level or landing platform served by the ladder. While the 
existing standard does not have a similar provision, the provision is 
in the ANSI 14.3-2008 standard for fixed ladders. Therefore, OSHA did 
not assign costs to final Sec.  1910.23(d)(7).
    In conclusion, for establishing a baseline, OSHA assumed that 
equipment and work practices met the national consensus standard in 
effect at the time of installation, and did not estimate costs when the 
provisions in the final standard and the current national consensus 
standards were equivalent. For additional analysis of the interface 
between national consensus standards and OSHA standards, see ERG, 2007, 
pp. 3-6 and 3-14.
c. Compliance Using the Least-Cost Method
    Consistent with past practice, OSHA assumed that employers would 
meet a regulatory requirement by choosing the least expensive means to 
do so. For example, under final Sec.  1910.28(b)(1), an employer can 
meet the duty to have fall protection for an employee on a walking-
working surface with an unprotected side or edge by using: (A) 
Guardrail systems, (B) safety net systems, or (C) personal fall 
protection systems such as personal fall arrest, travel restraint, or 
work-positioning systems. If (A)-(C) are not feasible or create a 
greater hazard for residential roofing work, the final standard permits 
a fourth option, i.e., developing and implementing a specified fall 
protection plan. The existing standard only specifies options (A)-(C); 
therefore, OSHA assigned no costs to Sec.  1910.28(b)(1) except when 
there were ambiguities in the scope of the existing standard, such as 
its application to loading docks or teeming platforms.
    In some cases, when the final rule gives an employer a lower-cost 
compliance option than is currently available, the employer could 
realize a cost savings. However, OSHA did not estimate such savings in 
this analysis.
d. No Costs Due to Grandfathering Provision
    Table V-17 lists the paragraphs in the final standard with new 
requirements, but which also have a ``grandfather'' provision for 
existing conditions. A grandfather provision exempts equipment that 
currently is in place from requirements that strengthen or upgrade the 
safety features of the equipment. Therefore, employers do not incur 
costs associated with modifying or replacing equipment covered by these 
paragraphs.

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[[Page 82814]]


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[[Page 82815]]


4. Cost Impacts for Final Subparts D (Walking-Working Surfaces)
    This subsection provides a brief paragraph-by-paragraph review of 
the final rule. OSHA took a two-step approach to determining the cost 
impacts of the final rule. First, the Agency looked at requirements 
that represent changes from the existing walking working surfaces and 
personal protective equipment standards to determine whether they might 
involve additional incremental costs. That analysis is described in 
this subsection and subsection 5. In subsection 6, ``Cost Estimates,'' 
OSHA discusses how it reached an estimate of the costs for each 
provision OSHA identified as involving additional costs.
    Table V-18 summarizes the paragraphs in the final subparts D and I 
that represent changes from the existing standards and might result in 
costs to employers if current industry practice falls short of the 
requirements of the rule. In the PEA, these costs primarily involved 
inspection and training; for this FEA, OSHA also identified significant 
costs for engineering and administrative controls and personal 
protective equipment. For the purpose of this analysis, OSHA 
distinguished between informal and formal training. For example, final 
Sec.  1910.23(b)(11) states that an employee must face the ladder when 
ascending or descending. For this provision, OSHA assumed that 
employers provide such instruction on an in-house basis (e.g., ``on-
the-job'' training), using materials such as OSHA training videos. When 
employers deliver training on an ongoing, less formal basis, OSHA did 
not assign a tracking or recordkeeping cost to it. However, as 
indicated in the table, OSHA attributed employer costs (and employee 
benefits, as discussed later in this FEA) to such provisions, where 
OSHA judged that additional training would be required beyond baseline 
practice.\122\ When the regulatory text uses the words ``trained'' or 
``training,'' OSHA assumed that employers would deliver the instruction 
on a more formal basis, possibly hiring a contractor to deliver the 
training. OSHA assumed that an employer would maintain documentation of 
all formal training and, thus, assigned a cost for this administrative 
task.
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    \122\ See the discussion later in this section and Ex. [OSHA 
Excel Workbook], tabs one_time_23 and annual_23, for details on the 
training costs attributed to the final requirements for ladders 
under Sec.  1910.23(b) and (c).

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    Finally, three requirements in the standard specify that employers 
must provide training in accordance with Sec.  1910.30 or the 
equivalent:
     Sec.  1910.27(b)(2)(iii): Rope descent systems;
     Sec.  1910.28(b)(1)(ii)(C): Unprotected sides and edges; 
and
     Sec.  1910.28(b)(4)(ii)(C): Dockboards.
    The costs for Sec.  1910.30 include the costs for the three 
paragraphs listed above.
    In the following subsection, organized by regulatory provision, 
OSHA discusses the potential cost implications of the new requirements. 
OSHA described earlier in this cost analysis final changes to the 
existing standard that likely will result in little or no costs; OSHA 
does not address these changes in the discussion below.
General Requirements (Sec.  1910.22)
    Sec.  1910.22(b). This provision specifies general requirements, 
one of which is that employers must ensure that the walking-working 
surface has the strength to support employees safely. From the 
standpoint of compliance costs, OSHA believes that employers can meet 
this requirement by performing a 5- to 10-minute inspection of the 
surface or reviewing engineering diagrams of the structure. In rare 
circumstances, an employer might need to spend 15 to 30 minutes 
determining if the work can proceed. OSHA discusses the costs for this 
provision later in this subsection in connection with the duty to 
inspect walking-working surfaces as part of the general requirements 
specified under Sec.  1910.22(d) (see ``Cost estimates'' below).
    Sec.  1910.22(c). The employer must provide employees with, and 
ensure that they use, a safe means of access to, and egress from, one 
walking-working surface to another. The language in existing Sec.  
1910.22(b) specifies that employers must keep aisles and passageways 
clear, in good repair, and with no obstruction across or in the aisles 
that could create a hazard to employees. For the PEA, OSHA generalized 
the terms ``aisles'' and ``passageways'' in proposed Sec.  1910.22(c) 
to cover all means of access and egress. The terminology in the 
proposed rule was consistent with that in a National Fire Protection 
Association consensus standard (NFPA 101). Thus, OSHA assigned no costs 
to proposed Sec.  1910.22(c) in the PEA and, with no comment in the 
record objecting to that decision, OSHA assigned no costs to Sec.  
1910.22(c) in this FEA.
    Sec.  1910.22(d). This new provision sets forth requirements for 
the employer to inspect regularly and as necessary, and maintain in a 
safe condition, walking-working surfaces; guard hazardous conditions to 
prevent employee use until the employer corrects or repairs the hazard; 
and have a qualified person inspect perform or supervise any correction 
or repair work that involves the structural integrity of a walking-
working surface. OSHA considered the costs for these safe work 
practices below under ``Cost estimates'' (for the duty to have fall 
protection; Sec.  1910.28).
Ladders (Sec.  1910.23)
    Sec.  1910.23(a). This paragraph specifying the application final 
standard covers all ladders, except when the ladder is used in 
emergency operations such as firefighting, rescue, and tactical law 
enforcement operations, or training for these operations or designed 
into or is an integral part of machines or equipment. Special wood 
ladders specifically excluded in the existing standard, including fruit 
picker's ladders, combination step and extension ladders, stockroom 
step ladders, aisle-way step ladders, shelf ladders, and library 
ladders are now included under the final standard. In the PEA, OSHA 
assumed that these ladders met consensus standards for wooden ladders 
(see Table V-16) and, therefore, OSHA expected that employers would 
incur no costs with the expanded application. After reviewing the 
record, OSHA reached the same conclusion for this FEA.
    Final Sec.  1910.23(b)(4) specifies a minimum clear rung, step, or 
cleat width of 11.5 inches for portable ladders and 16 inches for fixed 
ladders; thus, the distance from the centerline to the inside edge of 
the ladder ranges from roughly 6 to 8 inches. Adding the existing 
requirement of 2.5 inches from the nearest edge of the ladder to the 
nearest edge of the structure or equipment to the 6- to 8-inch 
centerline width required by the final standard results in a step-
across width of 8.5 to 10.5 inches for the purposes of the final 
standard. Thus, any fixed ladder that meets the existing requirements 
also meets the final requirements. OSHA assigned no costs to this 
paragraph in the PEA. Therefore, absent comment by the public or any 
other evidence in the record that would alter this preliminary 
assessment, the Agency assigned no costs for this paragraph in this 
FEA.
    Sec.  1910.23(b)(4)(iii). This paragraph concerns rolling ladders 
in communications centers, which OSHA moved to this final rule from 
existing Sec.  1910.268(h)(5), Telecommunications. Thus, as this is not 
a new requirement, it has no costs.
    Sec.  1910.23(b)(4)(iv). This paragraph 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, the Agency

[[Page 82820]]

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). OSHA assigned no costs to this paragraph in the PEA, and 
absent comment by the public or any other evidence in the record that 
would alter this preliminary assessment, the Agency assigned no costs 
for this paragraph in this FEA.
    Sec.  1910.23(b)(9). Both the existing and proposed standards had a 
requirement to inspect ladders before use. In the PEA, OSHA determined 
that the inspection frequency would not increase under the proposed 
standard. Therefore, OSHA concluded that employers would incur no 
additional costs associated with this requirement and, after reviewing 
the record following publication of the NPRM, reached the same 
conclusion for this FEA.
    Sec.  1910.23(b)(11)-(13); Sec.  1910.23(c)(5) and (6) and (9)-
(11). These eight paragraphs include instructions to employees on the 
proper use of ladders. Final Sec.  1910.23(c)(5) prohibits the use of 
single rail ladders, which OSHA finds is a training requirement. The 
wide availability of permitted ladders means that there are no 
equipment costs associated with this prohibition. In the PEA, OSHA also 
concluded that training would cover the other six provisions, and 
reached the same conclusion for this FEA. OSHA considered training 
costs below under ``Cost estimates.''
    Sec.  1910.23(c)(12) and (13). These provisions state that 
employers are not to tie or fasten ladders and ladder sections together 
to provide added length unless the design of the ladders permits such 
use, nor are employers to place ladders on boxes, barrels, or other 
unstable bases to obtain additional height. These provisions are 
essentially identical to current paragraphs Sec. Sec.  1910.25(d)(2)(v) 
and 1910.26(c)(3)(vi), which specify that neither wood nor metal 
portable ladders may be spliced, tied, or fastened together or elevated 
on unstable surfaces to create a longer section or higher reach unless 
the manufacturer has designed the equipment for such a purpose. These 
provisions, both in the existing and final standards, might cause 
employers to incur a cost if it is necessary to purchase longer 
ladders, or ladders that they can fasten together. During the comment 
period, OSHA received no data estimating the frequency of such 
occurrences but, presumably, they are rare. Thus, OSHA did not assign a 
cost to these paragraphs in this final analysis.
    Sec.  1910.23(d)(1). As proposed, fixed ladders installed 90 days 
after the effective date of the final standard must be capable of 
supporting two live loads of at least 250 pounds each, additional 
concentrated loads of 250 pounds each, plus anticipated loads caused by 
ice build-up and other conditions. Each rung must be capable of 
supporting at least a single concentrated load of 250 pounds. The 
language in this proposed requirement reflected the consensus standard 
in ANSI A14.3-2002. The language in the existing standard, however, 
specifies a single concentrated load of 200 pounds.
    As discussed earlier in this preamble, OSHA removed paragraph 
(d)(2) of the proposed rule from the final rule because OSHA believes 
that the performance criteria specified in final Sec.  1910.23(d)(1) 
provide an adequate level of safety for employees. Therefore, because 
paragraph (d)(1) reflects industry practice as documented in ANSI 
A14.3-2002, there are no costs associated with this provision.
    Sec.  1910.23(d)(12)(i). This final provision requires that 
employers measure ``step-across distance'' from the centerline of the 
steps or rungs of a fixed ladder. The existing definition measures 
step-across distance from the nearest edge of the ladder to the nearest 
edge of the structure or equipment. The minimum distance under the 
final standard is 7 inches, and under the existing standard it is 2.5 
inches; the maximum distance in the final standard is 12 inches, 
identical to the current standard. OSHA assigned no costs to this 
paragraph in the PEA and, although the minimum step-across distance in 
the proposed standard differed significantly from that in the current 
standard, no commenters objected to the proposed expansion in minimum 
step-across distance. Therefore, OSHA assigned no costs to this 
provision in this FEA.
    Sec.  1910.23(d)(12)(ii). The final standard specifies that the 
step-across distance from the centerline of the steps or rungs of a 
fixed ladder to the access point of the platform edge for side-step 
ladders must be not less than 15 and not more than 20 inches. Based on 
Figure D-10 in the existing standard, the maximum space from the edge 
of the ladder to the platform (i.e., access point) is 12 inches. As 
noted in the previous paragraph, the centerline width for a fixed 
ladder ranges from roughly 6 to 8 inches. The total step-across 
distance under the existing standard ranges from 18 to 20 inches. Thus, 
a fixed ladder that meets the existing requirements also meets the 
final requirements. Therefore, OSHA assigned no costs to this paragraph 
in the PEA and OSHA assigned no costs to this provision in this FEA.
    Sec.  1910.23(e). Paragraph (e)(1)(viii) (which impede or prohibit 
moving occupied mobile ladder stands and platforms) are the only 
paragraphs in this provision that do not have a corresponding 
requirement in a national consensus standard. However, these are work 
practice requirements that employers can meet through ladder safety 
training and enforcement. See the subsection titled ``Cost estimates'' 
below.
    All other provisions in Sec.  1910.23(e) meet the national 
consensus standard in the ANSI A14 series. An analysis of fiscal year 
2005 OSHA inspection data for violations of existing subpart D indicate 
that the failure to provide safe ladders is low (e.g., 0.2 percent of 
the violations were for portable wood ladders, 0.4 percent were for 
metal ladders, and 0.8 percent were for fixed ladders). Based on these 
data, OSHA infers that there is nearly 100 percent compliance with the 
provisions of the current consensus standards. Therefore, OSHA assigned 
no costs for equipment upgrades required by these paragraphs. However, 
OSHA assigned costs for the time it would take to ensure new ladders 
meet the technical specifications found in Sec.  1910.23(e); see ``Cost 
estimates'' below.
Step Bolts and Manhole Steps (Sec.  1910.24)
    The requirements for step bolts are new to subpart D. In the 
preliminary regulatory impact analysis for the 1990 proposed rule, OSHA 
noted, ``Manufactured products, such as ladders, step bolts, manhole 
steps . . . generally meet or exceed proposed OSHA specifications'' 
(OSHA, 1990a). A 2003 OSHA interpretation document comments that OSHA 
believes that the IEEE 1307-1996 consensus standard, in most cases, 
prevents or eliminates serious hazards (OSHA, 2003a). IEEE 1307-1996 
defines ``failure'' in a step bolt as occurring when it is bent more 
than 15 degrees below the horizontal, and Sec.  1910.24(a)(9) in the 
final standard for subpart D mirrors that definition. Because IEEE 
revised the standard in 2004, OSHA, in the most recent PEA for subparts 
D and I, assumed that industry was using the more up-to-date consensus 
standard. For this FEA, OSHA continues to assume that industry is 
complying with the 2004 IEEE standard.
    Sec.  1910.24(a)(1). This provision reads, ``[The employer must 
ensure:] Each step bolt installed on or after January 17, 2017] in an 
environment where corrosion may occur is constructed of,

[[Page 82821]]

or coated with, material that protects against corrosion.'' The 
national consensus standard applicable to this requirement is ASTM 
A394-08, Specification for Steel Transmission Tower Bolts, Zinc-Coated 
and Bare. The appendix to the consensus standard notes that the 
purchaser shall specify the dimensions of ladder bolts, step bolts, and 
equipment-support bolts. The ASTM standard describes three types of 
bolts covered by the standard:
     Type 0: Hot-dip, zinc-coated bolts made of low or medium 
carbon steel (ASTM 394-08, Section 1.1.1);
     Type 1: Hot-dip, zinc-coated bolts made of medium carbon 
steel, quenched and tempered (ASTM 394-08, Section 1.1.2); and
     Type 3: Bare (uncoated), quenched and tempered bolts made 
of weathering steel (ASTM 394-08, Section 1.1.4).\125\
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    \125\ ATSM removed type 2 bolts from the standard in 2005.
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    Appendix A.2 of the consensus standard mentions that bolts should 
be Type 0 unless agreed upon by the manufacturer and purchaser. That 
is, the default condition is to use zinc-coated bolts; therefore, such 
bolts would meet the OSHA requirement for corrosion resistance. 
Presumably, the use of any other bolt type means that the manufacturer 
and purchaser agreed that the bolt is appropriate for the intended 
environment and use. Since manufacturers of step bolts are unlikely to 
make non-compliant step bolts, OSHA assigned no costs to Sec.  
1910.24(a)(1) in the PEA and also assigned no cost to this provision in 
this FEA.
    Sec.  1910.24(a)(6). This provision reads, ``[The employer must 
ensure:] Each step bolt installed before January 17, 2017 is capable of 
supporting its maximum intended load.'' In the final standard, OSHA 
revised the proposed text by reducing the implementation period after 
the publication date of the final standard from 90 days to 60 days, a 
change that OSHA believes will not impose significant costs on 
employers.
    The requirement that a step bolt must be capable of supporting its 
maximum intended load is consistent with IEEE 1307-2004, Standard for 
Fall Protection for Utility Work. Section 9.1.1.1(d) in that standard 
reads:

    Step bolts shall [b]e capable of supporting the intended 
workload [as defined for the application specified by the 
appropriate ANSI standard(s)], but in no case shall the minimum 
design live load be less than a simple concentrated load of 271 kg 
(598.4 lb) applied 51 mm (2 inches) from the inside face of the step 
bolt head.

    Therefore, OSHA assigned no costs to this provision in the PEA and, 
after considering all factors associated with this provision, did not 
alter this estimation for this FEA.
    Sec.  1910.24(a)(7). This paragraph requires that step bolts 
installed on or after 60 days after publication of the final rule be 
capable of supporting four times their maximum intended load. As 
discussed in the preamble to the proposed rule, OSHA considered a \5/
8\-inch bolt as meeting this requirement, and bolts of that size are 
readily available. Therefore, in the PEA OSHA determined that there 
would be no incremental costs associated with this provision.
    In prehearing comments, The Southern Company questioned OSHA's 
proposed load criterion, stating, ``Instead of using the four times the 
maximum intended load, OSHA should consider using the criteria of the 
NESC or IEEE 1307'' (Ex. 192, p.3). OSHA noted earlier in the summary 
and explanation for this paragraph that, under this performance-based 
final rule, employers may use a range of methodologies, including 
criteria found in consensus standards, to determine the load 
capabilities of step bolts. Therefore, since bolt manufacturers are 
producing bolts that meet these design criteria, OSHA believes that 
there will be little, if any, additional cost burden on employers who 
must use step bolts that meet OSHA's load requirement, and, therefore, 
assigned no compliance costs to this provision in the final rule.
    Sec.  1910.24(a)(8) and Sec.  1910.24(b)(3). Under these paragraphs 
of the final standard, employers must inspect step bolts and manhole 
steps at the start of each workshift. OSHA considered inspection costs 
below under ``Cost estimates.''
    Sec.  1910.24(b). Table V-19 summarizes the language in the final 
standard for manhole steps, along with the corresponding section of 
ASTM C478-13. The following three requirements in this provision exceed 
the requirements specified in a national consensus standard for steps 
in precast concrete manhole sections:
     Manhole steps must have slip-resistant surfaces such as 
corrugated, knurled, or dimpled surfaces;
     Manhole steps must be constructed of, or coated with, 
material that protects against corrosion in an environment where 
corrosion may occur; and
     The design of manhole steps must prevent the employee's 
foot from slipping or sliding off the end of the manhole step.
    ASTM C478-13 permits the use of uncoated or untreated ferrous steps 
as long as they are at least 1 inch in cross-section, but is silent 
with regard to a slip-resistant surface or design. Because the final 
requirements appear to exceed the requirements in the consensus 
standard, the PEA determined that there would be incremental costs for 
slip-resistant and corrosion-resistant surfaces when employers rebuild 
or replace a manhole section. Moreover, the specifications in the final 
standard, unlike the consensus standard, define when a step fails while 
still in the manhole; thus, as noted in the PEA, there would also be 
step replacement costs associated with this provision. OSHA discusses 
these costs below under ``Cost estimates.''

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    \126\ ASTM C478-13, Section 16.5.3, specifies that the rung or 
cleat shall project a uniform clear distance of four inches minimum 
\1/4\ in. from the wall to the embedment side of the 
rung. The OSHA distance in the final standard measures from the 
centerline of the manhole step. Thus, if a step is at least an inch 
wide, a step that meets the ASTM 4-inch requirement also would meet 
the OSHA 4.5-inch requirement.

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[[Page 82823]]

Stairways (Sec.  1910.25)
    Sec.  1910.25(b)(5). The existing standard states that employers 
must provide a platform for doors or gates that open directly onto a 
stairway, and the swing of the door must not reduce the effective width 
to less than 20 inches. In the final standard, platforms installed 
before 60 days after the publication date of the final rule need only 
comply with the existing requirements; therefore, there are no retrofit 
costs to employers. For platforms installed on or after 60 days from 
the publication date of the final rule, the effective width increases 
to 22 inches.\127\ Employers will have an incremental cost when 
replacing a platform with one that has two inches of additional 
clearance.
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    \127\ The 22-inch clearance requirement for new structures 
matches ANSI A1264, Section 6.11.
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    Commenting on the proposed revision to this paragraph, Ameren 
Corporation expressed concerned about the proposed 90-day 
grandfathering timeline:

    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, p. 6.)

In response, OSHA recognizes that, as Ameren indicates, some large 
projects may require a lead-time longer than 60 to 90 days. However, 
OSHA also believes that most, if not all, manufacturers of such 
platforms should be familiar with the associated consensus standard, 
ANSI A1264.1-2007, and, therefore, produce platforms now that meet the 
22-inch clearance requirement. OSHA believes that most contracts, as a 
usual and customary practice, already incorporate into the cost of the 
product the minimal increase in material cost borne by the employer to 
meet the clearance specification. For the reasons given above under the 
subsection titled ``Compliance with national consensus standards,'' 
OSHA estimated no incremental costs for this provision (Sec.  
1910.25(a)(6)) in the PEA and, for these same reasons, did not take 
incremental costs for the provision (Sec.  1910.25(b)(5)) in the final 
standard.
    Sec.  1910.25(d). Existing Sec.  1910.24(b) does not permit spiral 
stairways except under special conditions. Employers cannot use spiral 
stairs under final Sec.  1910.25(d) unless the stairs meets specific 
design specifications. Therefore, employers must modify or replace 
existing spiral staircases that do not meet these requirements. 
However, spiral staircases are likely to be relatively rare in 
commercial or industrial settings given that they are exceptions to the 
existing rule. Thus, OSHA did not assign costs to Sec.  1910.25(d) in 
the PEA. Given that no commenters objected to this preliminary cost 
estimate, OSHA is estimating no costs for this paragraph in this FEA.
    Sec.  1910.25(e). OSHA developed this paragraph in response to a 
comment made to an OMB-initiated, government-wide effort to reform 
regulation in the U.S. manufacturing sector. This comment, submitted by 
the Copper and Brass Fabricators Council, stated that OSHA required the 
use of fixed stairs when ship stairs or spiral stairways would be safer 
(OMB, 2005).
    Employers typically install ship stairs with slopes of 50 degrees 
or greater; however, the existing standard for fixed stairs addresses 
stairs installed at angles between 30 and 50 degrees, but does not 
specifically address ship stairs. Recently, OSHA issued an 
interpretation stating that if ship stairs conformed to the 1990 
proposed standard for subpart D,\128\ the Agency would consider slopes 
up to 70 degrees to be de minimis violation of the existing standard 
\129\ (OSHA, 2006b and 2006c). OSHA believes that most existing ships 
stairs conform to the 1990 proposed standard, and therefore the Agency 
assigned no costs to Sec.  1910.25(e) in the PEA, nor did it assign 
costs to Sec.  1910.25(e) in this FEA.
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    \128\ The 1990 proposed standard allowed ship stairs that are 
designed with slopes between 50 degrees and 70 degrees from the 
horizontal; have open risers; have treads that are four inches (10 
cm) in depth, 18 inches (46 cm) in width, and a vertical rise 
between tread surfaces of six and one-half inches to 12 inches (16 
cm to 30 cm); and have handrails that are installed on both sides of 
the ship stairs and meet Sec.  1910.28 (within the existing 
standard). (55 FR 13400.)
    \129\ See OSHA's Field Operation Manual: https://www.osha.gov/OshDoc/Directive_pdf/CPL_02-00-148.pdf.
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    Sec.  1910.25(f). The existing standard does not expressly mention 
alternating tread-type (tread) stairs. A letter of interpretation from 
OSHA to a manufacturer of alternating tread stairs concluded that these 
stairs are safe (OSHA, 1981). NFPA 101, Section 7.2.11 (NFPA, 2012) 
also addresses alternating tread stairs. As discussed in the PEA, any 
alternating tread stair that meets the requirements of NFPA 101 would 
also meet the requirements in Sec.  1910.25(f); accordingly, the PEA 
determined that this provisions does not impose a new cost burden on 
employers. Thus, in this FEA, OSHA did not assign costs to this 
provision.
Dockboards (Sec.  1910.26)
    Sec.  1910.26(b). The text for this provision states that the 
employer must ensure dockboards put into initial service on or after 
January 17, 2017 are designed, constructed, and maintained to prevent 
transfer vehicles from running off the dockboard edge. Exception: When 
the employer demonstrates there is no hazard of transfer vehicles 
running off the dockboard edge, the employer may use dockboards that do 
not have run-off protection.
    The definition of a dockboard in ANSI MH30.2-2005, Section 2.2, 
contains the language ``as well as providing a run-off guard, or 
curb,'' similar to the requirement in this final provision. OSHA 
believes, as it stated in the PEA, that nearly all dockboards 
manufactured currently conform to the ANSI standard; however, should an 
employer encounter an older, out-of-compliance dockboard, OSHA believes 
that the costs for them to comply with the final standard will be 
minimal. Therefore, in the absence of comment on this analysis, OSHA is 
not assigning costs in this FEA for final Sec.  1910.26(b).
    Sec.  1910.26(e). The text for this provision reads, ``[The 
employer must ensure:] Portable dockboards are equipped with handholds 
or other means to permit safe handling of dockboards.'' The requirement 
in final Sec.  1910.26(e) that portable dockboards have handholds or 
other means to permit safe handling is essentially the same requirement 
specified in existing Sec.  1910.30(a)(4), which OSHA based on ANSI/
ASME B56.1, American Society of Mechanical Engineers, Safety Standard 
for Low Lift and High Lift Trucks. Therefore, OSHA believes that 
commercial dockboards likely come equipped with handholds and that any 
additional costs associated with this provision will be minimal. Thus, 
OSHA in this FEA did not assign costs for final Sec.  1910.26(e).
Scaffolds and Rope Descent Systems (Sec.  1910.27)
    Sec.  1910.27(a). This paragraph extends the construction industry 
requirements for scaffolds (except rope descent systems) to general 
industry. OSHA believes that many general industry employers who use 
scaffolds also perform work covered by the construction industry 
standards and are already familiar, and in compliance, with the 
construction industry scaffold standards. Therefore, linking the final 
standard for scaffolds in general

[[Page 82824]]

industry to the scaffold requirements in 29 CFR part 1926 resolves any 
inconsistencies between the scaffold requirements for the construction 
and general industries. OSHA received no comment on this analysis in 
the PEA. Thus, as in the PEA, OSHA attributed no costs to this 
paragraph in this FEA.
    Sec.  1910.27(b)(1). When employers use rope descent systems (RDS; 
also known as controlled-descent devices) for building maintenance, the 
final standard requires that the building owner or its representative 
provide to the building-maintenance contractor (the employer) written 
documentation of identified, tested, certified, and maintained 
anchorages capable of supporting at least 5,000 pounds (268 kg), in any 
direction, for each employee attached. As OSHA noted in the PEA, it 
would appear from the documentation associated with the industry 
consensus standard, ANSI/IWCA I-14.1, that the International Window 
Cleaning Association (IWCA) customarily finds from information its 
members receive that many buildings lack the required anchorages. A key 
provision of that consensus standard is a written work plan (Section 
1.7), and the IWCA Web site urges window cleaning enterprises to 
develop written plans and coordinate their operations with building 
owners. Accordingly, the IWCA Web site states:

    The intent of the [IWCA I-14.1] standard was not to stop window 
cleaning, it was to improve the level of safety of our industry by 
having a shared responsibility between the window cleaner and the 
building owner. If you have outdated equipment or are using 
equipment that doesn't meet the standard, phase it out. If you have 
buildings you're working on that are dangerous and are using 
creative rigging, phase them out and work with the building owners 
toward compliance. (IWCA, 2014.)

    ANSI/IWCA I-14.1, Section 17, lists options for roof support 
equipment, including:
     Parapets, cornices, and building anchorages (Section 
17.1);
     Davits and davit fixtures (a crane-like structure, Section 
17.2);
     Sockets (Section 17.3);
     Tiebacks (Section 17.4);
     Counterweighted outriggers (Section 17.5);
     Parapet clamps and cornice hooks (Section 17.6); and
     Overhead monorail tracks and trolleys (Section 17.7);
    Several of these options, such as counterweighted outriggers, are 
transportable and likely supplied by the contractor. Thus, the work 
plan delineates how the employer is to perform the work using a mix of 
contractor and property-owner equipment. The consensus standard 
provides several acceptable options for roof support equipment, and 
specifies that both the contractor and property owner concur with the 
work plan, and that the work plan describe how the contractor will 
perform the job safely. For the PEA, OSHA presumed that voluntary 
compliance with the consensus standard is likely to be high. However, 
as described in detail below, comments in the record indicate that 
industry compliance with the provision for sound anchorages varies 
considerably. In the PEA, OSHA assigned no costs for equipment; 
however, the Agency did estimate costs for inspections and 
certification that anchorages meet requirements. OSHA discusses these 
costs below in the subsection titled ``Cost estimates.''
    Sec.  1910.27(b)(2)(i). Rope descent systems are an alternative to 
powered platforms. The final rule states that employers cannot use rope 
descent systems at heights greater than 300 feet unless they 
demonstrate that it is not feasible to access such heights by any other 
means or that those means pose a greater hazard to employees than using 
a rope descent system. The wording of the final rule is consistent with 
the industry consensus standard, ANSI/IWCA I-14.1, 2001. Accordingly, 
both the IWCA consensus standard and the final OSHA standard (1) 
prohibit the use of rope descent systems for descents exceeding 300 
feet, and (2) contain an exclusion clause, which, in the case of the 
IWCA standard, provides that the requirement apply unless ``access 
cannot safely and practicably be obtained by other means.'' Because 
both the IWCA and OSHA standards contain a similar exclusion clause, 
the OSHA requirement is no more restrictive than the consensus 
standard.
    Since this is a work-practice as opposed to an equipment-
specification requirement, incremental costs are attributable to the 
OSHA standard only to the extent that employers would not voluntarily 
comply with the IWCA standard and to the extent that employers provide 
excess-risk documentation to OSHA. Employers, therefore, would incur 
costs from this provision only when (1) a building is 300 feet tall or 
higher, and (2) there is an alternative to the rope descent system that 
is feasible and at least as safe as an RDS. For the PEA, ERG examined a 
database developed by the Council on Tall Buildings and Urban Habitat 
(CTBUH) and identified slightly more than 1,900 buildings in the United 
States that are 300 feet (91.7 m) tall or higher (CTBUH, 2006). Over 25 
percent of these buildings are in New York City, where state law does 
not allow the use of rope descent systems for window cleaning 
(DiChacho, 2006). Accordingly, ERG derived an estimate of 1,500 
potentially affected buildings nationwide (ERG, 2007). For the PEA, 
OSHA assumed that some of these 1,500 buildings have permanently 
installed power platforms for access to the exterior of the building, 
and further assumed that using a platform would be less expensive than 
setting up an RDS.
    For this FEA, OSHA examined the CTBUH database described above and 
determined that, currently: Approximately 1,960 existing buildings are 
300 feet or higher; of that total, roughly 600 buildings with a height 
of 300 feet or greater are in New York City; and two states--California 
and Minnesota--have statutes that limit the RDS descent distance to, 
respectively, 130 feet and 300 feet (CA-DIR, 2012; Minnesota, 2012). 
After subtracting the number of buildings in those three states from 
the total, OSHA conservatively estimates that the 300-foot limit 
specified by this final standard would affect 1,300 buildings with a 
height of 300 feet or greater.\130\
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    \130\ Valcourt Building Services estimated that 2.6 percent of 
its window washing operations involve buildings that are 300 feet or 
greater in height (Ex. 358). If OSHA applies that percentage to the 
number of all commercial buildings subject to the suspended 
scaffolds standard and, therefore, potentially affected by the 300-
foot limit (DOE, 2006), the resulting estimate is significantly 
greater than the CTBUH estimate. This finding suggests that 
Valcourt's operations involve an unusually large proportion of 
buildings that are taller than 300 feet.
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    The final set of buildings for which Sec.  1910.27(b)(2) could 
result in costs are those buildings for which employers use RDS due to 
technical factors specific to a building's history, architecture, or 
style of operation. For example, to wash regularly the windows of a 
tall building with many sharp angles or tiered levels, management may 
find it cost-effective to contract for RDS rather than powered 
platforms. OSHA expects that there will be additional costs to the 
building owners in these situations because of factors discussed below 
under ``Cost estimates.''
    Sec.  1910.27(b)(2)(ii)-(xiii). With one exception, these 
paragraphs in the final standard codify safety provisions presented in 
the 1991 memorandum to OSHA's Regional Administrators, which are 
similar to the requirements now specified in the national consensus 
standard, ANSI/IWCA I-14.1 (OSHA, 1991b). The safety provisions in this 
ANSI standard that mirror the OSHA memo are:
     Training employees in the use of the equipment;

[[Page 82825]]

     Inspecting the equipment each day before use and removing 
of damaged equipment from service;
     Using proper rigging, including sound anchorages and 
tiebacks, in all cases, with particular emphasis on providing tiebacks 
when using counterweights, cornice hooks, or similar non-permanent 
anchorage systems;
     Using a separate personal fall arrest system;
     When installing lines, using knots, swages, or eye splices 
when rigging RDS that are capable of sustaining a minimum tensile load 
of 5,000 pounds;
     Providing prompt rescue of employees;
     Effectively padding ropes where they contact edges of a 
building, anchorage, obstructions, or other surfaces that might cut or 
weaken the rope; and
     Providing stabilization at the work location when descents 
are greater than 130 feet.
    A provision in the OSHA memo not duplicated in the ANSI standard is 
the requirement in final Sec.  1910.27(2)(b)(xi), which specifies that 
no employee may use an RDS under hazardous weather conditions, such as 
storms or gusty or excessive wind. OSHA estimates that this new 
provision is not likely to present a significant burden on employers 
because of the relatively high levels of current compliance with the 
provision (see, for example, Ex. 329 (1/19/2011), pp. 213, 346, 411-
412) and the Agency's expectation, based on comments in the record (Ex. 
329 (1/19/2011), pp. 235-236, 361), that employers will respond to wind 
conditions by adjusting window cleaning operations to minimize lost 
revenue and added project costs (for example, scheduling window 
cleaning operations on short buildings when weather conditions would 
create a hazard for window cleaning operations on tall buildings).
    The proposed regulatory text updated the 1991 OSHA memo by using 
terminology such as ``prompt rescue'' rather than ``rescue'' and 
``harness'' rather than ``body belt,'' but, as it stated in the PEA, 
OSHA did not believe that these revision would increase compliance 
costs. Other revisions to the 1991 OSHA memo made in the proposal, and 
now in the final standard, include the addition of three safety 
provisions to the original list of safety provisions described above. 
These three provisions include:
     Using equipment in accordance with the instructions, 
warnings, and design limitations set by manufacturers or qualified 
persons (final Sec.  1910.27(2)(b)(ii));
     Securing equipment by a tool lanyard or similar method to 
prevent equipment from falling (final Sec.  1910.27(2)(b)(xii)); and
     Protecting suspension ropes from exposure to open flames, 
hot work, corrosive chemicals, or other destructive conditions (final 
Sec.  1910.27(2)(b)(xiii)).
    In the PEA, OSHA stated that the eight safety provisions listed in 
the 1991 OSHA memo, the provision dealing with wind and other weather 
hazards, and the additional three provisions described in the previous 
paragraph, would not impose significant costs on employers. None of the 
comments submitted to the proposal provided any evidence contradicting 
this analysis.
    OSHA determined in the PEA that the training requirements in 
proposed Sec.  1910.27(b)(2)(ii), now codified as final Sec.  
1910.27(b)(2)(iii), imposed costs on employers. Final Sec.  
1910.27(b)(2)(iii) specifies that employers provide training in 
accordance with Sec.  1910.30. Therefore, OSHA assigned the costs for 
training beyond that noted in its 1991 memorandum to Sec.  1910.30. 
OSHA discusses these costs under ``Cost estimates'' below.
    The Agency identified two additional provisions, final Sec.  
1910.27(b)(2)(xii) and (b)(2)(xiii), in the PEA as having potential 
costs.\131\ The requirement specified by final Sec.  1910.27(b)(2)(xii) 
to secure equipment is consistent with consensus standard IWCA I-14.1-
2001, Section 3.10. Thus, OSHA did not assign incremental costs to this 
requirement in either the PEA or this FEA.
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    \131\ In the proposal, these two provisions are Sec.  
1910.27(b)(2)(x) and (xi).
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    The requirement in final Sec.  1910.27(b)(2)(xiii) that employers 
protect suspension ropes from exposure to open flames, hot work, 
corrosive chemicals, or other destructive conditions, is an extension 
of the requirement to protect the integrity of the ropes specified in 
OSHA's 1991 OSHA memorandum. OSHA attributed the costs for meeting this 
requirement under the training costs estimated in Sec.  1910.30, and 
described below under ``Cost estimates.''
Duty To Have Fall Protection and Falling Object Protection (Sec.  
1910.28)
    The revised regulatory text for final Sec.  1910.28 consolidates 
the fall protection requirements in the existing rule, with two major 
revisions. First, comments submitted in response to the reopening of 
the rule in 2003 recommended that the fall protection requirements in 
subpart D be consistent with the requirements in subpart M of the 
construction standards. The final text for Sec.  1910.28 makes the 
general industry fall protection requirements consistent with the 
construction requirements, which may impose additional costs on 
employers in general industry. In addition, the existing standard does 
not address the use of restraint systems, designated areas, or safety 
net systems, nor does the existing standard clarify when employers can 
use personal fall protection systems. In contrast, the final standard 
allows employers to choose from various options in providing fall 
protection, i.e., it is not as restrictive as the existing standard, 
which primarily requires use of guardrails.
    In the proposal, OSHA requested public comment on the expenses that 
employers typically would incur to comply with this requirement. 
Stakeholders raised concerns about the compliance burden of this 
provision when conducting routine inspections on roofs. These 
stakeholders included the Property Casualty Insurers Association of 
America (Ex. 98), the Massachusetts Institute of Technology (MIT; Ex. 
156), the National Roofing Contractors Association (NRCA; Ex. 197), and 
the U.S. Chamber of Commerce (Ex. 202). MIT's comments, presented 
below, are typical of these responses:

    Under Subpart D--Walking-Working Surfaces, Section 1910.21(a) 
reads as follows: (a) Scope and application. This subpart applies to 
all general industry workplaces. It covers all walking-working 
surfaces unless specifically excluded by individual sections of this 
subpart. Following paragraph (a), MIT recommends adding the 
following narrow exception: ``Exception: The provisions of this 
subpart do not apply when employees are making routine inspections, 
investigations, or assessments of workplace conditions.'' Reason for 
comment: Periodic routine inspections, investigations, and 
assessments should be allowed on flat roof tops without installing 
guard rails, designated areas, or fall restraint/arrest systems. 
Employees engaged in routine inspections, investigations, and 
assessments of workplace conditions are exposed to fall hazards for 
very short durations, if at all, since they most likely would be 
able to accomplish their work without going near the danger zone. 
Requiring the installation of fall protection systems under such 
circumstances would expose the employee who installs those systems 
to falling hazards for a longer time than the person performing an 
inspection or similar work. As a result, the Proposed Rule could 
potentially create a greater hazard, rather than reducing a hazard. 
As stated above, the fall protection exemption anticipates that 
inspectors likely would be able to accomplish their work without 
going near the danger zone; yet installing such protections for a 
short time period would be

[[Page 82826]]

expensive and time-consuming. If the exception is not included, the 
Proposed Rule would have a significant impact on EHS personnel 
checking monitors, researchers inspecting research equipment on 
roofs, facilities operations investigating roof drains, facilities 
operations assessments prior to beginning project work, and other 
similarly-situated employees who regularly conduct such inspections. 
In addition, individuals who conduct these types of inspections are 
trained to be very focused on their footing, ever alert, and aware 
of the hazards associated with falling. Therefore, employees who 
inspect, investigate, or assess workplace conditions will be more 
aware of their proximity to an unprotected edge. This proposed 
exception would be in line with the existing OSHA Construction 
Standard, 29 CFR 1926.500(a)(1). (Ex. 156.)

OSHA notes that final Sec.  1910.28(a)(2)(ii) provides an exemption 
stating that when employees are making an inspection, investigation, or 
assessment of workplace conditions prior to the starting work or after 
completing all work, the employer does not have to provide fall 
protection unless fall protection systems or equipment meeting the 
requirements of Sec.  1910.29 have been installed and are available for 
workers to use for pre-work and post-work inspections, investigations, 
or assessments.
    Sec.  1910.28(b)(1). Under this final provision, if a walking-
working surface (vertical or horizontal) has an unprotected side or 
edge that is four feet or more above a lower level, an employer must 
protect employees from falling by using a guardrail system, safety net 
system, or personal fall protection system. If the work is on 
residential roofs and the employer demonstrates that it is infeasible 
or creates a greater hazard to use a guardrail system, safety net 
system, or personal fall protection system, then the employer must 
develop a fall protection plan that meets the requirements of 29 CFR 
1926.502(k) and training that meets the requirements of 29 CFR 
1926.503(a) and (c). In the existing rule, employers must implement 
fall protection under the following provisions when the fall hazard is 
four or more feet:
     Sec.  1910.23(b): Wall openings;
     Sec.  1910.23(c)(1): Open-sided floors or platforms; and
     Sec.  1910.23(c)(2): The open sides of any runway.

Thus, there is no change in the height requirement for fall protection 
between the existing and final rules. OSHA believes that the language 
and organization for the final rule is less complex than for the 
existing rule and provides additional flexibility in the methods used 
for fall protection. The final rule also allows for exceptional 
conditions. For example, if it is not feasible or creates a greater 
hazard to install guardrails or other fall protection systems on a 
residential roof, then the employer does not have to install these 
systems and must instead develop and implement the requisite fall 
protection plan, including implementing other control measures to 
eliminate or reduce fall hazards for workers, and training. As 
discussed below under ``Cost estimates,'' OSHA anticipates that the 
costs for fall protection plans will not exceed the costs for 
guardrails and fall protection systems and, as demonstrated in employer 
response to the Construction standard (29 CFR 1926.502(k); 29 CFR 
1926.503(a) and (c)), those compliance costs are economically feasible.
    Comments to the proposal informed OSHA that chimney cleaning 
exposes workers to fall hazards resulting from work on residential 
roofs, and that protection from these fall hazards would require 
additional control measures. OSHA's analysis of the compliance costs 
for chimney cleaning, one industry among several industries found in 
NAICS 56179, Other Services to Buildings and Dwellings, appears below 
under ``Cost estimates.''
    Sec.  1910.28(b)(2). This final provision requires fall protection 
in hoist areas when the fall hazard is four feet or greater, and also 
clarifies the requirements for hoist areas found in existing Sec.  
1910.23(b)(1) and (c)(1). Therefore, OSHA assigned no costs to this 
paragraph in either the PEA or in this FEA.
    Sec.  1910.28(b)(3). The existing rule requires guarding every hole 
and skylight floor opening. This final provision specifies that 
employers must use fall protection when an employee might fall more 
than four feet through a hole. Thus, the new language harmonizes the 
fall protection requirement for holes with the requirements for 
unprotected sides and edges and hoist areas. The new language also 
permits employers to meet the requirement using covers, guardrail 
systems, travel restraint systems, or personal fall arrest systems.
    The final revision to Sec.  1910.28(b)(3) also provides protection 
for stairway floor holes, ladderway floor holes, and hatchways and 
chute-floor holes, and updates existing Sec.  1910.23(a) by 
incorporating the best practices found in industry consensus standards 
(notably ANSI/ASSE A1264.1-2007). This subparagraph also clarifies 
application of the provision (e.g., provides an exception for stairways 
used less than once per day). Furthermore, employers must construct 
guardrail systems to protect holes in accordance with final Sec.  
1910.29, Fall protection criteria. OSHA noted in the PEA that these 
requirements have been part of an OSHA standard or industry consensus 
standards for at least 15 years and, therefore, the incremental cost 
burden to employers would likely be minimal. OSHA could identify no 
data in the record that contradicted its preliminary finding of minimal 
cost impact and, therefore, carried the minimal impact estimate forward 
in this FEA.
    Sec.  1910.28(b)(4). This final provision requires guardrails or 
handrails on dockboards to protect an employee from falls of four feet 
or more. There is an exception for cases when employers use dockboards 
exclusively for material handling operations performed with motorized 
equipment. In these cases, neither guardrails nor handrails are 
necessary if the fall hazard is 10 feet or less and employees received 
the training specified by Sec.  1910.30. OSHA discusses the costs for 
installing handrail or guardrail systems for dockboards later in this 
subsection, and assigned the training costs to Sec.  1910.30 (see 
``Cost estimates'' below).
    Sec.  1910.28(b)(6). The existing rule Sec.  1910.23(c)(3) requires 
a standard railing and toe board for walking-working surfaces above 
dangerous equipment. This final provision bases the required controls 
on the potential fall distance. For potential falls of less than four 
feet onto or into dangerous equipment, the employer can cover or guard 
the dangerous equipment to eliminate the hazard. For potential falls of 
four feet or more, the employer must use guardrail systems, safety net 
systems, travel restraint systems, or personal fall arrest systems to 
protect employees from the fall hazard. For both the PEA and this FEA, 
OSHA assumed that employers already implemented the required controls 
under the existing standard using the least-cost method; therefore, 
OSHA assigned no costs to this paragraph in either the PEA or this FEA.
    Sec.  1910.28(b)(7). For openings, the final standard limits the 
need for fall protection to cases for which the inside bottom edge of 
the opening is less than 39 inches above a walking-working surface and 
the bottom edge of the outside of the opening is four feet (1.2 m) or 
more above a lower level. The employer can use a guardrail system, a 
safety net system, a travel restraint system, or a personal fall arrest 
system to meet this requirement. In the PEA, OSHA stated that it 
believed that current industry practice was to protect employees 
exposed to openings; therefore, the Agency estimated no costs

[[Page 82827]]

for this paragraph in the PEA. OSHA received no comments in the record 
that contradicted this preliminary assessment and, therefore, assigned 
no costs to paragraph (b)(7) in this FEA.
    Sec.  1910.28(b)(8). Existing Sec.  1910.21(a)(2) classified pits, 
in general, as floor openings. In this final provision, pits that are 4 
feet and less than 10 feet in depth used for repair, service, or 
assembly operations need not have a fall protection system provided 
employers demarcate, with floor markings, warning lines, stanchions, or 
some combination thereof, a (minimum) 6-foot perimeter around the pit, 
limit access to that demarcated area to trained and authorized 
employees, and post readily visible caution signs. In the PEA, OSHA did 
not assign incremental costs to paragraph (b)(8) because an employer 
would only incur costs for caution signs and floor markings if they 
were less expensive than the fall protection system required under the 
existing standard. In addition, existing Sec.  1910.145 already 
requires an employer to post caution signs where needed, and existing 
Sec.  1910.144 specifies the content of the signs. OSHA assumed that 
most employers have signs and marking materials readily available and, 
therefore, assigned no incremental costs to this paragraph in the PEA. 
There was no evidence submitted to the record to justify revising this 
preliminary assessment; therefore, OSHA in this FEA estimates that any 
additional compliance costs associated with this paragraph will be 
minimal.
    The final rule provides more than one method to comply with Sec.  
1910.28(b)(8). That is, an employer may use a conventional fall 
protection system or implement specific safe work practices (i.e., 
marking, stanchions, posting, and limiting access). When the 
alternative method--the use of safe work practices--is less expensive 
than the method specified in the existing rule (guardrails), an 
employer likely would incur lower costs to comply with the paragraph. 
As stated in the PEA, OSHA concluded that the new provision may reduce 
costs for some employers; however, OSHA did not quantify the cost 
savings in the preliminary analysis, nor did it do so in this final 
analysis.
    Sec.  1910.28(b)(9). The existing regulatory text specifies landing 
platforms, cages, wells, or ladder safety devices as means of providing 
fall protection for fixed ladders. The 1990 proposal for subpart D 
permitted some workers to climb fixed ladders without the use of ladder 
safety devices, cages, or wells if they were qualified climbers and met 
other, specified conditions. In particular, employers could use 
qualified climbers to climb fixed ladders only if they did so no more 
than twice a year and it would be a greater hazard to the employee to 
install the fall protection system than to climb the ladder without 
fall protection (which OSHA believed rarely occurs).
    In paragraph (b)(9) and elsewhere in the final standard, OSHA no 
longer permits employers to use qualified climbers beginning two years 
after publication of the final rule. In addition, after two years 
employers must equip new fixed ladders and replacement ladders and 
ladder sections with ladder safety systems or personal fall arrest 
systems. However, employers still can meet the fall protection 
requirement for existing fixed ladders extending more than 24 feet 
above a lower level by using cages, wells, personal fall arrest 
systems, and ladder safety systems for 20 years after publication of 
the final rule; after 20 years, employers must use either personal fall 
arrest systems or ladder safety systems for fixed ladders. For this 
FEA, OSHA assigned costs for using ladder safety systems on fixed 
ladders. OSHA's describes its analysis of costs for fall protection on 
fixed ladders below in ``Cost estimates.''
    Sec.  1910.28(b)(10). These final paragraphs address fall hazards 
in outdoor advertising, also known as billboards. Existing subpart D 
has no requirements specific to billboards. However, for analytical 
purposes, the existing fixed ladder requirements cover the fixed ladder 
portion of a billboard. Existing Sec.  1910.27(d)(1) requires cages or 
wells for ladders more than 20 feet in length. In the PEA, OSHA assumed 
that under proposed Sec.  1910.28(b)(10)(i), an employee climbing the 
fixed ladder portion of a billboard up to 50 feet in length would need 
to use either a body belt or a body harness with an appropriate 18-inch 
rest lanyard to tie off to the fixed ladder, and that these additional 
options, when not already deployed, would be less expensive than cages 
or wells. Further, proposed Sec.  1910.28(b)(10)(iv) required employers 
to properly maintain and use any ladder safety system installed on 
fixed ladders; according to ERG, this requirement is consistent with 
widespread industry practice (ERG, 2007). Thus, in the PEA, OSHA 
assigned no incremental compliance costs to these paragraphs. However, 
OSHA received a comment from the outdoor advertising industry in 
response to the proposal stating that ladder safety systems are not in 
widespread use for the initial 50-foot climb (or 65 feet from grade) on 
fixed ladders connected to billboards (see Exs. 329 (1/18/2011), pp. 
143-146; 359, pp.7-8). Therefore, OSHA revised its preliminary analysis 
in this FEA to indicate that a significant percentage of outdoor 
advertising employers will need to install ladder safety systems on 
fixed ladders. OSHA presents its estimate of the costs for those 
systems below in ``Cost estimates.''
    Final Sec.  1910.28(b)(10)(ii)(A) requires employees in outdoor 
advertising who climb a fixed ladder be qualified climbers as specified 
in Sec.  1910.29(h) when the fixed ladder does not come equipped with a 
cage, well, personal fall arrest system, or a ladder safety system. 
Therefore, OSHA assigned the costs for this paragraph to Sec.  
1910.29(h). In doing so, the Agency conservatively assumed in both the 
PEA and in this FEA that all employees in NAICS 5418 (Advertising and 
Related Services) who climb fixed ladders will receive training as 
qualified climbers (see the discussion for Sec.  1910.29(h) below). 
OSHA notes that the provision for qualified climbers in outdoor 
advertising will expire two years after publication of the final rule, 
at which time employers must use other means and methods of fall 
protection. The Agency assigned the costs of fall protection for these 
workers after the second year as initial and ongoing costs (see the 
discussion below under ``Cost estimates).''
    Final Sec.  1910.28(b)(10)(ii)(B) requires that qualified climbers 
in outdoor advertising wear a body harness equipped with an 18-inch (46 
cm) rest lanyard. Both the proposed rule at paragraph (b)(10)(i) and 
OSHA's outdoor advertising directive contain a similar requirement. The 
lanyard allows workers to tie off to the fixed ladder and rest during 
the climb. Proposed paragraph (b)(10)(i) and outdoor advertising 
directive both include a requirement permitting employers to provide, 
and allow workers to use, a body harness or body belt. However, 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 
Sec.  1910.28(b)(10)(ii)(B). This also makes the final provision 
consistent with OSHA's construction industry rule, which does not allow 
body belts to be used for personal fall arrest (Sec.  1926.502(d)).
    According to comment from the Outdoor Advertising Association of 
America (OAAA), OAAA's training program emphasizes ``the duty to 
provide fall protection for employees working above 4-6 feet including 
equipment such as harnesses, lanyards and any supplemental PPE uses.'' 
(Ex. 359) Therefore, because the use of harnesses and lanyards is 
central to the training program of the leading outdoor advertising 
industry association, OSHA

[[Page 82828]]

anticipates that there will be no additional costs associated with the 
requirement in the final standard that qualified climbers be outfitted 
with full body harnesses. Proposed Sec.  1910.28(b)(10)(vi), now 
codified as final Sec.  1910.28(b)(10)(ii)(C), specifies that the 
employee is to have both hands free of tools and material while 
climbing up or down the ladder. In the PEA, OSHA assigned a cost to 
this paragraph; in this FEA, the Agency discusses these costs below 
under ``Cost estimates.''
    Under final Sec.  1910.28(b)(10)(ii)(D), climbers must use an 
appropriate fall protection system after they reach their work 
positions. OSHA attributed the cost of these systems to the existing 
standard for fixed ladders. Thus, the Agency estimated no additional 
costs for equipment required by this provision in either the PEA or in 
this FEA.
    Proposed Sec.  1910.28(b)(10)(iii) required that employers follow 
inspection procedures for ladder safety systems. Final Sec.  1910.29(i) 
now delineates the inspection procedures identified in the proposed 
requirement. OSHA did not specify in the proposed rule the frequency of 
inspection, but in the PEA assumed that inspections would occur prior 
to each use. OSHA assigned costs to this paragraph in the PEA, and 
discusses these costs below under ``Cost estimates'' in this FEA.
    Final 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)), includes standard stairs, ship stairs, spiral stairs, and 
alternating tread-type stairs. As noted earlier in the summary and 
explanation of the final standard, 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 or stair rail 
system. 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), NFPA101-2012 (Sections 7.1.8 and 7.2.2.4.5), and 
ICC IBC-2012 (Section 1013.2), except that NFPA and IBC require guards 
on open-sided walking surfaces that are located more than 30 inches 
above the floor or grade below.
    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.
    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 ICC IBC-2012 (Section 
1009.15) and NFPA 101-2012 (Section 7.2.11.2).
    In the PEA, OSHA recognized that compliance with existing consensus 
standards for stairways and stairway landings will eliminate much of 
the employee exposure to fall hazards addressed by proposed Sec.  
1910.28(b)(11). Therefore, the Agency estimated no costs for this 
paragraph in the PEA. OSHA received no comments in the record that 
contradicted this preliminary assessment. Because as shown above in 
Table V-16, updated versions of the same consensus standards for 
stairways apply to the final standard, OSHA assigned no costs to 
paragraph (b)(11) in this FEA.
    Sec.  1910.28(b)(12). Final Sec.  1910.28(b)(12)(i), which 
addresses the duty to provide fall protection for employees on 
scaffolds, refers to the construction standards at 29 CFR part 1926, 
subpart L (Scaffolds), thereby avoiding any inconsistencies between the 
general industry and construction standards. Fall protection on 
scaffolds in the construction standards generally follows consensus 
standards; thus, in the PEA, based on the estimated high level of 
current compliance with the construction standards or consensus 
standards, OSHA assigned no costs to this paragraph, and retained that 
cost estimate for this FEA.
    Final Sec.  1910.28(b)(12)(ii) requires that employers ensure that 
each employee using a rope descent system more than four feet (1.2 m) 
above is protected from falling by a lower level using a personal fall 
arrest system. Such systems must meet the requirements of 29 CFR part 
1910, subpart I. OSHA addresses the costs associated with rope descent 
systems in ``Cost estimation'' below as part of the discussion of Sec.  
1910.27, Scaffolds and rope descent systems.
    Sec.  1910.28(b)(13) and (14). These two paragraphs are new to 
final subpart D and introduce additional compliance costs for employers 
specializing in, respectively, rooftop services (paragraph (b)(13)) and 
work on platforms and other elevated surfaces in animal slaughtering 
and animal processing plants (paragraph (b)(14)). Discussion of these 
costs appears in the next subsection, ``Cost estimates.''
    Sec.  1910.28(b)(15). OSHA proposed this paragraph covering 
walking-working surfaces not otherwise addressed by the standard to 
clarify existing Sec.  1910.23(c)(3), which requires a railing and 
toeboard for these types of surfaces. In the final rule, the revised 
language restricts the requirement to working surfaces four feet or 
more above a lower level, and permits the employer to comply with the 
paragraph by using a guardrail, safety net system, travel restraint 
system, or personal fall arrest system. Assuming that employers will 
choose the least-cost compliance option and that current industry use 
of conventional fall protection is widespread, OSHA in the PEA assigned 
costs to one surface, stepbolts, that appeared to be newly affected. 
OSHA determined that this requirement for protection on stepbolts will 
primarily affect establishments in NAICS 51, Information, and NAICS 
7113, Promoters of performing arts, sports, and similar events, and 
that the preferred fall protection will be ladder safety systems. In 
the next subsection, ``Cost estimates'', OSHA discusses its final 
analysis of costs for this paragraph.
    Sec.  1910.28(c). Final paragraph (c) requires that employers 
protect workers from being hit by falling objects, such as objects 
falling through holes or off the sides or edges of walking-working 
surfaces onto workers below. In addition, final paragraph (c) requires 
that employers protect workers using one or more of the following 
measures:
     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 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 final rule by consolidating into 
a single paragraph all of the provisions that address falling objects 
found in the existing standard at Sec.  1910.23(b)(5) and (c)(1) and 
the proposed rule at 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)).

[[Page 82829]]

Therefore, because the final standard introduces no additional burden 
on employers beyond existing requirements, and because there were no 
comments in the record suggesting that additional economic impacts 
would result, OSHA expects that final paragraph (c) will impose no new 
costs.
Fall Protection Systems and Falling Object Protection--Criteria and 
Practices (Sec.  1910.29)
    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 and falling object protection, and Sec.  1910.140, 
Personal fall protection equipment.
    Final Sec.  1910.29 requires that employers ensure the fall 
protection system and falling object protection they select meets the 
specified criteria and practice provisions. 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). As mentioned in the preamble to final Sec.  
1910.28 and Sec.  1910.29, many commenters supported making the general 
industry fall and falling object protection requirements consistent 
with those in the construction industry (e.g., Exs. 124; 155; 194).
    Final Sec.  1910.29 reorganizes the existing rule so that the 
format of the final rule is consistent with the format in the 
construction fall protection standard at Sec.  1926.502 and 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 (ANSI/ASSE 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 Construction and Demolition Operations (ANSI/ASSE A10.18-2012) 
(Ex. 388).
    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 drew the requirements 
from the construction fall protection standard at Sec.  1926.502(b).
    OSHA analyzed the potential economic impacts of final Sec.  
1910.29(b) and anticipates that only paragraphs (b)(13) and (15) could 
potentially impose significant cost impacts, while the existence of the 
consensus standards listed above and other factors affecting current 
practice will result in no costs for all other paragraphs in Sec.  
1910.29(b). The Agency's review of the impacts associated with 
paragraphs (b)(13) and (15) is given immediately below.
    Sec.  1910.29(b)(13). This final paragraph revises a related 
provision in the proposed standard by specifying that guardrail systems 
used around points of access (e.g., ladderways) must have a self-
closing gate that slides or swings away from the hole, with the gate 
constructed with a top rail, midrail, and latch or, alternatively, are 
offset to prevent a worker from walking or falling into the hole.
    In two separate comments, Intrepid Industries, Inc. (Intrepid), 
recommended that OSHA clarify the proposed requirement by recognizing 
recent technological developments in ladderway gates. Intrepid noted in 
its comments that when OSHA published the 1990 proposal, multiple 
horizontal rails were `` `foreign' to industry,' '' that since 
publication of the 1990 proposal, ``a majority of protection devices 
have both a top rail and a mid rail similar to that of the guardrail . 
. . ,'' and that such gates are equivalent in strength and design to 
guardrail systems and are widely available throughout industry (Exs. 
68; 366). Therefore, having adopted Intrepid's recommended 
clarification in the final rule, OSHA estimates that few affected 
employers will need to replace current ladderway gates, resulting in a 
negligible cost burden for employers. Accordingly, as in the PEA, OSHA 
did not assign any costs to this provision.
    Sec.  1910.29(b)(15). This final paragraph, as did the proposal, 
requires that employers inspect manila, plastic, or synthetic rope used 
for top rails or midrails as frequently as necessary to ensure that it 
meets the specified strength requirements. OSHA addresses the 
inspection costs for this final paragraph below in ``Cost estimates.''
    Sec.  1910.29(c). Both the proposed and final paragraphs require 
that employers ensure safety net systems meet the requirements in the 
construction standards at 29 CFR part 1926, subpart M, thus avoiding 
any inconsistencies between general industry and construction 
standards. Given that the safety net system requirements in the 
construction standards follow current consensus standards, OSHA in the 
PEA estimated that this requirement had no incremental costs. OSHA 
received no comments to the proposal addressing this analysis and, 
therefore, attributed no costs to final Sec.  1910.29(c) in this FEA.
    Sec.  1910.29(h). This final paragraph outdoor advertising 
operations, and sets forth the criteria for the use of qualified 
climbers, which it limits to these operations. In the PEA, OSHA modeled 
the costs to train and, as necessary, retrain qualified climbers. That 
is, OSHA assumed that qualified climbers required training beyond that 
now required for fixed ladders and, furthermore, OSHA believed that 
employers would incur additional costs associated with the requirement 
that the employer observe the performance to ensure the qualified 
climber has the skills necessary to perform the climb safely.
    The final standard permits the use of qualified climbers up to two 
years after publication of the rule, after which outdoor advertising 
employers must protect employees engaged in outdoor advertising from 
fall hazards in accordance with provisions of Sec.  1910.28. Therefore, 
although OSHA's estimate of costs associated with the criteria 
enumerated in Sec.  1910.29(h) would not apply two years after 
publication of the final rule, OSHA retained those costs in this final 
analysis to account for any training costs connected with transitioning 
to the use of ladder safety systems or other fall protection measures 
on fixed ladders. OSHA discusses the cost estimates for final Sec.  
1910.29(h) below under ``Cost estimates.''
    The other requirements in final Sec.  1910.29, include the 
requirements found in final paragraphs (d) Designated areas, (e) 
Covers, and (f) Handrail and stair rail systems, (g) Cages, wells, and 
platforms used with fixed ladders, (i) Ladder safety systems, (j) 
Personal fall protection systems, (k) Protection from falling objects, 
and (l) Grab bars (specified as ``Grab handles'' in the NPRM). OSHA in 
the PEA noted that there already is significant, widespread compliance 
with the proposed requirements among general industry employers, 
resulting in the proposed requirements imposing minimal incremental 
cost burden on employers. OSHA requested feedback from the public on 
this analysis, but received no comments to this request. Therefore, in 
this FEA, OSHA assigned no costs to paragraphs (d) Designated areas, 
(e)

[[Page 82830]]

Covers, (f) Handrail and stair rail systems, (g) Cages, wells, and 
platforms used with fixed ladders, (i) Ladder safety systems, (j) 
Personal fall protection systems, (k) Protection from falling objects, 
and (l) Grab bars.
Training Requirements (Sec.  1910.30)
    This new section requires that employers in general industry train 
their employees regarding fall and equipment hazards, and retrain them 
when necessary. In the PEA, OSHA assumed that an employer that trains 
employees in compliance with Sec.  1910.30 would choose to maintain 
records of the training, and the cost estimates in the PEA took account 
of this time burden on employers. The training costs estimated for 
proposed Sec.  1910.30 included requirements from other proposed 
paragraphs that specify that the employer must conduct the training in 
accordance with proposed Sec.  1910.30 (see Table V-18 for examples). 
OSHA discusses these costs in more detail below under ``Cost 
estimates''; in this analysis, incremental training costs apply only to 
the percentage of establishments that do not already provide regular 
safety training.
5. Cost Impacts for Final Subpart I (Personal Protective Equipment)
    In the NPRM, OSHA proposed to add a new section, Sec.  1910.140, to 
29 CFR part 1910, subpart I, to address personal fall protection 
equipment. The proposed text for Sec.  1910.140 added specific design 
and performance requirements for personal fall protection systems to 
existing subpart I. In addition, the proposed standard required that 
the provisions for hazard assessment found in existing Sec.  1910.132 
apply as well to personal fall protection systems.
    The text of the final standard is virtually identical to that of 
the proposed rule, and although a number of commenters raised concerns 
about the technical specifications and criteria that would apply to 
personal fall protection systems, OSHA received few, if any, comments 
directly addressing the PEA. The discussion below describes OSHA's 
general treatment of costs for subpart I; the next subsection, ``Cost 
estimates,'' provides additional details on the specific method for 
estimating costs.
    Sec.  1910.132(g). Existing Sec.  1910.132(g) lists the personal 
protective equipment standards under 29 CFR part 1910, subpart I, that 
are subject to the requirements specified in existing Sec.  1910.132(d) 
and (f). Paragraph (d) of Sec.  1910.132 requires employers to assess 
the workplace to identify any potential hazards and the need for PPE, 
while Sec.  1910.132(f) requires employers to train employers, at 
specified times, on the application limits of the equipment; proper 
hook-up, anchoring, and tie-off techniques; methods of care, use, and 
disposal; and proper methods of equipment inspection and storage. Final 
Sec.  1910.132(g) adds the personal fall protection equipment regulated 
under Sec.  1910.140 to the list of covered personal protective 
equipment. In the PEA, OSHA identified significant costs in connection 
with the proposed requirement; the Agency discusses the costs 
associated with this final requirement below under ``Cost estimates'' 
(for Sec. Sec.  1910.140, Personal fall protection systems, and 
1910.30, Training).
    Sec.  1910.140(c)(18). 29 CFR 1910.140 is a new section that OSHA 
is adding to subpart I Personal Protective Equipment (PPE) (29 CFR part 
1910, subpart I) to address personal fall protection systems, which 
include personal fall arrest, travel restraint, and positioning 
systems. The new section establishes requirements for the design, 
performance, use, and inspection of personal fall protection systems 
and system components (e.g., body harnesses, lifelines, lanyards, 
anchorages).
    Similar to the final rule revising 29 CFR part 1910, subpart D, 
final Sec.  1910.140, when appropriate, also draws from national 
consensus standards addressing personal fall protection systems, 
details of which are provided in Section IV.B. of this document. 
Therefore, with the exception of one paragraph in Sec.  1910.140, 
paragraph (c)(18), OSHA in the PEA estimated that current industry 
practice is widespread, and there were no comments objecting to that 
preliminary estimate. Final Sec.  1910.140(c)(18) requires that 
employers inspect personal fall protection systems prior to the initial 
use during each workshift. In the PEA, OSHA identified significant 
costs in connection with the proposed requirement; the Agency discusses 
costs for this final paragraph below under ``Cost estimates.''
6. Cost Estimates
    This subsection presents OSHA's detailed estimates of the costs 
associated with the final rule, provision by provision. These 
compliance costs represent the incremental burden incurred by employers 
beyond the current baseline of fall-related safety expenditures. OSHA 
did not estimate potential cost savings to industry from increased 
flexibility in meeting specific requirements, such as using personal 
fall protection systems rather than the currently mandated handrail/
guardrail systems, even if some of the new requirements might be safer 
than the currently mandated requirements.\132\
---------------------------------------------------------------------------

    \132\ The Agency assumed that the new requirements are at least 
as effective in employee protection as the requirements provided by 
the existing requirements.
---------------------------------------------------------------------------

    For a number of cost categories, there were no public comments on 
the PEA. For those cases, OSHA updated the applied unit wage and the 
numbers of affected employers and employees to reflect the revised 
profile, but retained the cost methodology used in the PEA. For 
provisions in the final standard for which OSHA adjusted the 
preliminary cost estimate, the Agency describes the form of the cost 
revision and the public comments that lead to the final cost estimate.
a. Estimated Compliance Costs by Provision in the Final Standard for 
Subpart D
    Labor costs associated with compliance with the final standard 
generally involve additional employer and supervisor time for training 
and inspection. OSHA took the number of establishments and employees 
from Statistics of U.S. Businesses: 2007. The Agency based the number 
of employees covered by subparts D and I on the share of employees 
working in building and grounds; construction; \133\ installation, 
maintenance, and repair; production; and material-moving occupations 
reported by the Bureau of Labor Statistics, Occupational Employment 
Statistics (BLS, 2007). See section C above in this FEA for additional 
industry-profile information.
---------------------------------------------------------------------------

    \133\ As noted earlier in this FEA, production workers include 
workers in building and grounds; construction; installation, 
maintenance, and repair; production; and material-moving 
occupations. It is possible that employees in construction and 
related occupations, even though not employed by establishments in 
construction industries, might perform work regulated by OSHA under 
its construction standards in 29 CFR part 1926. Therefore, the 
employers of these workers, depending on the type of work performed, 
also may have to meet the requirements for fall protection and 
walking-working surfaces specified in the construction standards. 
For the purpose of estimating costs, however, OSHA assumed that the 
general industry standards cover these employees.
---------------------------------------------------------------------------

    OSHA based employee and supervisor wages (see Table V-5) on data 
reported by the Bureau of Labor Statistics through their Occupational 
Employment Statistics program (BLS, 2010). OSHA adjusted wages to 
include the cost of benefits, and determined estimated benefits from 
data provided from the Bureau of Labor Statistics, Employer Costs for 
Employee Compensation--

[[Page 82831]]

June 2011 (released September 2011).\134\ The Agency based current 
compliance rates on OSHA inspection statistics for fiscal year 2005 
(see Table V-15); it determined the fraction of businesses that already 
provide regular safety training from information in the National 
Occupational Exposure Survey conducted by the National Institute for 
Occupational Safety and Health (NIOSH, 1988). See Table V-20, below.
---------------------------------------------------------------------------

    \134\ Throughout the discussion below, wages that include 
benefits are also referred to as ``loaded'' wages.
[GRAPHIC] [TIFF OMITTED] TR18NO16.222

[GRAPHIC] [TIFF OMITTED] TR18NO16.223

General Requirements (Sec.  1910.22)
    Final Sec.  1910.22 contains three paragraphs with new 
requirements:
     Sec.  1910.22(d)(1): Perform regular and periodic 
inspection, and maintenance, of walking-working surfaces;
     Sec.  1910.22(d)(2): Correct and repair hazardous 
conditions on walking-working surfaces, and guard unsafe conditions 
until corrected or repaired; and
     Sec.  1910.22(d)(3): Have a qualified person perform or 
supervise any

[[Page 82832]]

correction or repair that involves the structural integrity of a 
walking-working surface.
    There were no public comments that addressed OSHA's preliminary 
approach to estimating costs the costs for these paragraphs. For the 
final standard, OSHA revised all three provisions from the proposed 
language for clarification.
    For the purpose of estimating costs for Sec.  1910.22(d)(1), OSHA 
in the PEA assumed that a significant percentage of facilities already 
include regular and periodic inspections of walking-working surfaces. 
OSHA used the non-compliance rates for floor-guarding in proposed Sec.  
1910.23 (which has the highest non-compliance rates, see Table V-15) to 
estimate the number of establishments that need to perform regular and 
periodic inspections of walking-working surfaces. OSHA assumed that a 
supervisor would spend 15 minutes every quarter performing the 
inspection, for a total of 1 hour per year. Based on these unit costs, 
OSHA preliminarily estimated that the total annual inspection cost 
would be $15.3 million.
    Relative to the existing and proposed standards, the final standard 
provides more specificity in the types of hazards for which employers 
will be inspecting walking-working surfaces (namely, protruding or 
sharp objects, loose boards, corrosion, leaks and spills). Included 
among the inspected surfaces will be residential roofs (addressed in 
Sec.  1910.28(b)(1)), low-slope roofs (Sec.  1910.28(b)(13)), and 
slaughtering facility platforms (Sec.  1910.28(b)(14)), surfaces whose 
inclusion in the scope of the proposed standard is recognized by OSHA 
in this final notice. As a result of further analysis of these affected 
surfaces, OSHA believes that regular and periodic inspections will be 
more extensive than determined in the PEA. For this final analysis, 
OSHA raised the quarterly inspection time from 15 minutes to 30 
minutes. Therefore, OSHA estimated the final cost for paragraph Sec.  
1910.22(d)(1) to be $32.8 million.\135\
---------------------------------------------------------------------------

    \135\ For timber tract operations (NAICS 1131), costs are 
estimated by multiplying together 450 establishments (see Table V-
1), 9.6 percent noncompliance rate for existing floor guarding 
requirements (see Table V-15), two hours per supervisor, and a 
$26.10 hourly loaded wage (see Table V-5), yielding a result of 
$2,263. Analogous calculations are performed for each industry and 
summed to produce the total of $32.8 million.
---------------------------------------------------------------------------

    For estimating the costs of Sec.  1910.22(d)(2), OSHA in the PEA 
projected that within a year, 10 percent of affected establishments 
would identify an unsafe condition, and that it takes an employee 15 
minutes to set up a guard mechanism (e.g., cones, barriers). The Agency 
assumed incremental material costs to be negligible since it is likely 
that most employers currently stock guard equipment but only 
occasionally deploy it. Estimated compliance costs for this provision 
were $0.23 million in the PEA and are $0.25 million in this FEA.\136\
---------------------------------------------------------------------------

    \136\ For example, OSHA estimated the costs to correct unsafe 
conditions for timber tract operations (NAICS 1131) in the following 
way. Total guarding cost = no. of affected establishments * (1 - 
current compliance rate) * percent with an unsafe condition * time 
to set up guarding * employee hourly loaded wage = 450 
establishments (1 - 90.4 percent) * 10 percent * 0.25 hours * $19.99 
= $22. Analogous calculations are performed for each industry and 
summed to produce the total of $0.25 million.
---------------------------------------------------------------------------

    For Sec.  1910.22(d)(3), OSHA in the PEA estimated that it takes 
five minutes for a supervisor or qualified person to inspect the repair 
of the unsafe condition. Final Sec.  1910.22(d)(3) was revised to read 
that when any correction or repair involving the structural integrity 
of the walking-working surface is conducted, a qualified person must 
perform or supervise the correction or repair. Applying the five-minute 
time unit across all affected employers, OSHA preliminarily estimated 
that the costs for a supervisor or qualified person to inspect repairs 
would total $0.13 million, and, applying the five-minute unit for this 
FEA, determined that final costs will be slightly higher, at $0.14 
million for performance or supervision of the correction or repair.
    Summing costs for the three paragraphs in final Sec.  1910.22(d) 
with cost impacts, the total estimated cost for compliance with Sec.  
1910.22(d) is, after rounding, $33.2 million per year.
Ladders (Sec.  1910.23)
    In the PEA, eight paragraphs in proposed Sec.  1910.23 specify new 
training requirements for protecting employees from slip, trip, and 
fall hazards during operations involving ladders. Table V-21 summarizes 
these eight new training requirements.

[[Page 82833]]

[GRAPHIC] [TIFF OMITTED] TR18NO16.224

    The PEA determined that employers could address all eight of these 
new provisions in a single training session. In addition, OSHA 
determined that employers can comply with these provisions using 
informal training; therefore, the Agency did not include administrative 
costs for employers. For this FEA, OSHA added a ninth provision, Sec.  
1910.23(c)(9), addressing stabilization of ladders on slippery 
surfaces, to its analysis of costs, and applied the same cost modeling 
parameters here as it did in the PEA.
    OSHA's Web site includes a resource center with a loan program for 
training videos (OSHA, 2012b). The index lists 12 training videos for 
ladders and stairways, with run times ranging from 5 to 19 minutes, for 
an average of 12 minutes. Accordingly, for the purposes of estimating 
costs for ladder safety training, OSHA in the PEA and this FEA applied 
a 15-minute training period per video.
    In OSHA's cost model, employers can train 10 employees per session, 
with one supervisor in attendance. OSHA further assumed that employers 
incur $1 in materials cost for handouts for each employee trained.
    Some establishments already provide regular safety training. For 
each affected NAICS industry, OSHA applied an estimate for the 
percentage of employees already providing training. OSHA's derived its 
industry-by-industry baseline estimate for safety training from the 
NIOSH National Occupational Exposure Survey (NOES) database (NIOSH, 
1988). Although these data are over 25 years old, the NIOSH NOES survey 
is still the primary source for such information, and covers a broad 
range of industries. No comment in the record suggested that the NIOSH 
NOES survey data are no longer accurate. Furthermore, OSHA believes 
that the proportion of employees already offered regular safety 
training likely increased over the past two decades; hence, the Agency 
most likely overestimated the training costs.
    The cost to train employees at establishments that do not offer 
regular safety training is a one-time cost annualized over a 10-year 
period at a discount rate of 7 percent. Summing across all affected 
employers, the total first-year cost is $11.5 million, with an 
annualized cost of $1.6 million.\137\
---------------------------------------------------------------------------

    \137\ For gambling industries (NAICS 7132), costs are estimated 
by first multiplying together 5,240 employees (see Table V-1) and 
the 33.6 percent rate of not yet providing training (=1-0.664 shown 
in Table V-20), yielding an estimate of 1,761 employees that do not 
yet receive training. Next, this estimate is multiplied by the sum 
of worker time costs (0.25 hours times an $18.80 hourly production 
worker loaded wage (see Table V-5)), materials costs ($1 per 
employee) and instructor time costs (0.25 hours times a $38.66 
hourly supervisor loaded wage (see Table V-5), divided by 10 to 
reflect a 10-worker class size), yielding a result of $11,736 (= 
$8,274 labor cost + $1,761 materials cost + $1,701 instructor cost). 
Analogous calculations are performed for each industry and summed to 
produce the total of $11.5 million.

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

[[Page 82834]]

    New employees who begin affected jobs also will need training. For 
the purpose of estimating this cost, OSHA in the PEA assumed that 
training received from a prior employer was not sufficient to meet the 
proposed subpart D requirement. ERG's analysis of 2002 hires data 
collected by the Bureau of Labor Statistics (ERG, 2007) formed the 
basis in the PEA for OSHA's analysis of the annual costs of training 
employees new to the workforce; for this FEA, OSHA used 2007 BLS 
industry hires-rate data to correspond to the employment levels (2007) 
used in the analysis. Table V-22 below summarizes these data for the 
NAICS codes affected by this final standard. Under these assumptions, 
the estimated cost is $5.4 million per year to train new employees in 
ladder safety.
[GRAPHIC] [TIFF OMITTED] TR18NO16.225

    In the PEA, to estimate the costs of mobile ladder stands and 
mobile ladder stand platforms that conform to the design requirements 
specified in Sec.  1910.23(e), OSHA's cost formula included all 
establishments potentially covered by proposed subpart D. OSHA assumed 
that the typical lifetime for a ladder is five years; thus, one-fifth 
of the establishments would purchase a ladder meeting the design 
requirements each year.\138\ Furthermore, OSHA assumed that a 
supervisor from each establishment would take five minutes to read 
ladder specifications to ensure that, prior to purchase, the ladder met 
the requirements for that type ladder. With these assumptions, the 
estimated annual cost for Sec.  1910.23(e) was $3.8 million in the PEA; 
in this FEA, allowing for the increase in the number of affected 
establishments and updated wage rates (generally upward), annual total 
costs for final Sec.  1910.23(e) are $4.2 million.\139\
---------------------------------------------------------------------------

    \138\ Underlying this assumption is the likelihood that some 
establishments will purchase more than one ladder in a given year, 
or will purchase more than one ladder over the five-year span.
    \139\ For grantmaking and giving services (NAICS 8132), costs 
are estimated by first multiplying together 16,356 establishments 
(see Table V-1) and the 20 percent rate applied in ladder 
replacement, yielding an estimate of 3,271 establishments that will 
be purchasing a ladder. Next, this estimate is multiplied by the sum 
of worker time costs (5 minutes/60 minutes = 0.083 hours times a 
$29.89 hourly production supervisor loaded wage (see Table V-5)), 
yielding a result of $8,147. Analogous calculations are performed 
for each industry and summed to produce the total of $4.2 million.
---------------------------------------------------------------------------

Step Bolts and Manhole Steps (Sec.  1910.24)
    Step bolts. In estimating the cost of the step-bolt inspection 
requirement specified by proposed paragraph (a)(8) in the PEA, OSHA 
identified three types of structures requiring step bolts and pole 
steps:
     Utility poles;
     Communication structures; and
     Pole-mounted lights in sports and performance arenas.

Final paragraph (a)(8) requires that employers ensure step bolts are

[[Page 82835]]

inspected at the start of each work shift and maintained in accordance 
with Sec.  1910.22. OSHA addresses the cost impacts of final paragraph 
(a)(8) in the following discussion.
    Utility poles. According to the 2007 Utility Data Institute 
Directory of Electric Power Producers and Distributors, there are 
6,297,596 miles of distribution lines in the United States (Platts, 
2007).\140\ According to ERG, the most recent mileage estimate 
available for overhead distribution lines was 4.1 million miles in 
1996, or about two-thirds of total line miles (NCAMP, 1997). 
Considering the maturity of the electric-power industry in the United 
States, OSHA assumed that there has not been a significant increase in 
overhead line miles since 1996, with most new lines probably built 
underground. Assuming one utility pole for every 100 feet of line, OSHA 
estimated that there are 216,480,000 utility poles in the United 
States. According to a 2004 highway safety study, this estimate is 2.5 
times the number of reported utility poles on highways in 1999 (NCHRP, 
2004); therefore, OSHA's estimate appears to be reasonable.
---------------------------------------------------------------------------

    \140\ The final Electric Power Generation, Transmission, and 
Distribution; Electrical Protective Equipment standard requires that 
employers follow the fall protection requirements in 29 CFR part 
1910, subpart I (79 FR 20315 (4/11/2014); see Sec.  1910.269(g) in 
this final rule).
---------------------------------------------------------------------------

    OSHA assumed that employees in the affected industry group--NAICS 
2211, Electric Power Generation, Transmission and Distribution--climb 
one percent of the poles once each year and that it takes a production 
worker (at an hourly wage of $45.11, including benefits) one minute to 
inspect the step bolts on a pole. Therefore, the estimated annual cost 
in the PEA for inspecting step bolts was $1.5 million. In the absence 
of any comment on the record taking exception to this analysis, in this 
FEA, OSHA estimated the cost for this requirement to be $1.6 million, 
allowing for an increase in wages since publication of the NPRM.
    Communication structures. For the PEA, ERG estimated that there are 
roughly 190,000 fixed-ladder structures in the communications industry 
(see ERG, 2007, Appendix A). This estimate encompasses communication 
structures with fixed ladders and step bolts. Fixed ladders, however, 
have an existing requirement for inspection, while step bolts do not. 
To narrow the estimate to fixed ladders with step bolts, ERG searched 
an FCC database (Antenna Structure Registration (ASR)) and determined 
that most communication structures meet at least one of the following 
criteria:
     Height is 200 feet or higher;
     Height <199 feet if within 5 miles of an airport and fails 
the glide calculation (part 17 requirement); or
     Height of the extension (e.g., beyond the building roof) 
is 20 feet or more.

ERG assumed that these structures are more likely to have fixed ladders 
rather than step bolts. As of May 2007, there were approximately 93,000 
structures in the ASR database. Communication structures that are not 
in the ASR database are smaller and, thus, more likely to have step 
bolts. ERG calculated that the difference between the total number of 
structures (190,000) and the number in the ASR database (93,000) would 
represent the number of structures that could potentially have step 
bolts. Following ERG's methodology, OSHA's cost model projected that 
employees climb each of the 97,000 structures with step bolts once a 
year and that spend one minute inspecting the structure before climbing 
it. These unit estimates resulted in an annual cost of $0.05 million 
($50,000) for NAICS 51 (Information) in the PEA; with 2010 loaded 
hourly wages ranging from $21.64 to $32.60 for production workers 
across sixteen four-digit industry codes in NAICS 51, the annual cost 
is approximately $0.04 million ($43,000) in this FEA (average wages for 
production workers in NAICS 51 fell from 2008 to 2010).
    Sports and performance arenas. According to the 2002 census, there 
were 1,699 establishments in NAICS 7113, Promoters of performing arts, 
sports, and similar events, with facilities (Census, 2002). For the 
PEA, ERG was unable to estimate the number of step bolts at each 
facility, but instead assumed that employers spent one hour per year 
inspecting all step bolts at each facility (OSHA assumed that a 
production worker would conduct the inspection). Therefore, in the PEA, 
OSHA calculated that annual costs would total $0.034 million ($34,000) 
for NAICS 7113. For this FEA, annual costs for NAICS 7113 total $0.050 
million ($50,000) after updating the number of facilities (2,613) per 
the 2007 Census and applying the 2010 loaded hourly wage of $19.08 for 
production workers in NAICS 7113.
    Summing costs for utility poles, communication structures, and 
sports and performance arenas, OSHA estimated in the PEA that the total 
annual inspection costs for step bolts would be $1.54 million; for this 
FEA, total inspection costs are $1.72 million. In the proposal, OSHA 
requested, but did not receive: (1) Comment on the extent to which 
employers currently conduct visual inspection \141\ of step bolts in 
the telecommunications and electric-utility industries, and in sports 
and performance arenas; (2) comment on the assumptions underlying its 
analysis of costs; and (3) information on the potential impacts of the 
proposed requirements on climbing surfaces with step bolts safely. 
Therefore, in this FEA, OSHA adjusted the cost estimates in the PEA 
only to the extent that wages and the number of establishments changed 
since it published the PEA.
---------------------------------------------------------------------------

    \141\ The requirement in the proposed standard that step bolts 
be ``visually inspected'' was revised in the final standard to read 
that step bolts be ``inspected''.
---------------------------------------------------------------------------

    For this final economic analysis, OSHA included, within the total 
costs for the final standards for step bolts under final Sec.  1910.24, 
the costs for repairing or replacing defective step bolts identified in 
inspections required by the final rule. Based on a review of OSHA 2005 
inspection data for the Transportation and Utility sectors, OSHA 
calculated that 0.34% of inspected step bolts will be found to be out 
of compliance.\142\ Applying this step bolt failure rate to the total 
number of step bolts in affected NAICS industries (see above) yields an 
estimated 7,727 step bolts repaired or replaced yearly. At a unit cost 
of $4.50 or $14.75 per step bolt depending on the NAICS code \143\ and 
an installation time of fifteen minutes, annual costs for repair or 
replacement of step bolts are expected to total approximately $0.3 
million. (See Ex. [OSHA Excel Workbook], Tab annual_24_stepbolts.).
---------------------------------------------------------------------------

    \142\ Of 38,714 OSHA inspections in 2005, 11,469 resulted in 
citations, of which 1,301 were in Transportation or Utility 
industries. One hundred and fifty-six citations in Transportation/
Utility referenced Subpart D, and of that total, 15 citations 
referenced 1910.24, Fixed industrial stairs, the existing standard 
judged by OSHA to be most closely associated with the final 
provision for step bolts. (See https://www.osha.gov/dep/enforcement/enforcement_results_05.html). Therefore, (11,469 citations/38,714 
inspections) * (156 Transportation/Utility citations in Subpart D/
1,301 total Transportation/Utility citations) * (15 industrial 
stairs citations/156 Subpart D citations) = 0.34% probability of a 
scaffolds citation in Transportation/Utility sector.
    \143\ NAICS 22: $4.50; NAICS 51, 71: $14.75. See Ex. [OSHA Excel 
Workbook], Tab annual_24_stepbolts).
---------------------------------------------------------------------------

    Summing costs for inspection of step bolts and repair or 
replacement of defective step bolts, OSHA estimates that the costs for 
the provisions addressing step bolts under final Sec.  1910.24 will 
total $2.0 million.
    Manhole steps. Final paragraph (b) addresses the design, capacity, 
and use of manhole steps. As discussed earlier,

[[Page 82836]]

three requirements in final paragraph (b)(2) exceed the requirements 
specified in a national consensus standard, ASTM C478-13, for steps in 
precast concrete manhole sections:
     Manhole steps must have slip-resistant surfaces such as 
corrugated, knurled, or dimpled surfaces;
     Manhole steps must be constructed of, or coated with, 
material that protects against corrosion in an environment where 
corrosion may occur; and
     The design of manhole steps must prevent the employee's 
foot from slipping or sliding off the end of the manhole step.
    OSHA expects that employers will identify any deficiencies in 
manhole steps through compliance with final paragraph (b)(3); that 
provision requires that employers ensure manhole steps are inspected at 
the start of the work shift, and maintained in accordance with Sec.  
1910.22. In estimating the cost of the manhole-step inspection 
requirement specified by proposed paragraph (b)(3) in the PEA, OSHA 
estimated there are between 6.6 million and 13.2 million manholes, with 
a mid-point estimate of 9.9 million, nearly all of which are in water, 
sewage, and related utilities. Of these manholes, approximately 85 
percent, or 8.4 million manholes, are 20 feet or less in depth, while 
the remainder, 15 percent or 1.5 million manholes, are more than 20 
feet in depth. In the PEA, OSHA estimated that employees would enter 10 
percent of all manholes, on average, and that it would take one minute 
to inspect the steps prior to entering the manhole. That analysis 
resulted in an estimated annual cost of $0.4 million for the industry 
most affected by this requirement, NAICS 2213 (Water, sewage, and other 
systems). After updating the wage rate for production workers in NAICS 
2213, OSHA's final estimate for inspection of manhole equipment, 
including steps, totals $0.5 million.
    Other industries also use manholes for access, such as electric-
power generation, transmission, and distribution (NAICS 2211) and 
natural-gas distribution (NAICS 2212). ERG, however, had no data on the 
number of manholes for those industry groups, and although OSHA assumed 
in the PEA that the costs would be proportional to the number of 
manholes estimated for water and sewage systems, OSHA was not able to 
estimate costs for NAICS 2211 and 2212. The Agency requested, but did 
not receive, public comment in the proposal on the impact of the 
inspection requirement on these and any other affected industries. 
Therefore, for this FEA, OSHA assumed that, for NAICS 2211 and 2212, 
employers seldom encounter manholes, and that when they do encounter 
manholes, they routinely inspect the manhole steps to ensure that the 
steps meet or exceed the requirements of the final rule. Therefore, 
OSHA determined that, under the final standard, any incremental costs 
for manhole fall protection in NAICS 2211 and 2212 will not be 
significant.
    Employers would incur costs for slip-resistant and corrosion-
resistant manhole step surfaces required by proposed paragraphs 
(b)(2)(i) and (ii) in the future because employers would replace 
manholes with steps at the end of their useful life. As described 
above, OSHA estimates there are 9.9 million manholes, of which 85 
percent are 20 feet or less in depth and 15 percent are more than 20 
feet in depth. In the PEA, OSHA assumed that manholes less than or 
equal to 20 feet in depth used portable ladders, fixed ladders, and 
steps in equal shares, resulting in 2.9 million manholes with steps, 
while it assumed that manholes more than 20 feet in depth used fixed 
ladders and steps in equal shares, resulting in 0.7 million manholes 
with steps. This analysis, therefore, indicates that the proposed 
requirement would affect 3.6 million manholes. The manhole step 
selected from vendor lists in the PEA had a per-unit cost of $8.50, and 
OSHA assumed that this price included a 10 percent premium for the 
steps to meet the proposed requirements (ERG, 2007).
    Applying the unit values and methodological assumptions described 
above for this FEA, OSHA estimated annual replacement costs for steps 
by applying a 10 percent rate for annual entry of manholes and, of that 
number, applying a 10-percent rung failure rate. At the incremental 
cost of $0.85 each (10 percent of $8.50 per rung), the estimated annual 
replacement cost for steps is $0.03 million ($31,000). OSHA estimated 
annual replacement costs for all manhole-access equipment (including 
steps, but excluding manhole covers) assuming a baseline of ten percent 
and further assuming that employers would replace 5 percent of this 
equipment each year and would install steps every 16 inches. 
Accordingly, the estimated yearly manhole replacement cost is $1.6 
million, and combining this cost with OSHA's final estimate of costs 
for inspection of manhole equipment, including steps ($0.5 million), 
OSHA derives a total cost of $2.1 million for manhole fall protection 
under the final rule (after rounding).
    For this FEA, OSHA has included the labor costs for annual 
replacement of manhole steps or rungs that are judged to be out of 
compliance with the final standard. OSHA applied a baseline compliance 
rate of ten percent for affected utilities, estimated that removal of 
the old rung or step and replacement with a new one will involve 15 
minutes of labor per rung or step (hourly loaded wage of $30.47 for a 
production worker in NAICS 2213 (water, sewage utilities)), and 
multiplied unit labor cost times the total number of affected steps, or 
1.83 million steps after adjusting for baseline.\144\ Combining those 
cost factors, the Agency estimates that labor costs for removal and 
replacement of defective rungs or steps will total $13.9 million.
---------------------------------------------------------------------------

    \144\ 1.06 million steps or rungs in manholes less than 20 ft. 
deep (28,611 in single-rung manholes and 1,144,440 in multi-rung 
manholes) + 780,000 steps or rungs in manholes more than 20 ft. deep 
(7,425 in single-rung manholes and 853,875 in multi-rung manholes) = 
2.03 million steps or rungs (100%-10% baseline) = 1.83 million steps 
or rungs. See Document ID [OSHA Excel Workbook], Tab 
materials_24_manholes.
---------------------------------------------------------------------------

    Combining costs for inspections and repair of step bolts and 
manhole steps, OSHA estimates that the final costs associated with 
Sec.  1910.24, Stepbolts and manhole steps, will total $16.0 million.
Scaffolds and Rope Descent Systems (Sec.  1910.27)
    Training. Paragraph (b)(2)(ii) of proposed Sec.  1910.27 and 
paragraph (b)(2)(iii) of the final Sec.  1910.27 specify training 
requirements for rope descent systems. As described earlier in this 
``Costs of Compliance'' section, OSHA attributed costs for any training 
beyond what is done as a result of the 1991 OSHA memorandum on descent-
control devices to final Sec.  1910.30 (see below).
    Sound anchorages. In the PEA, costs assigned to ensure sound 
anchorages as required by proposed Sec.  1910.27(b)(iv) involved: (1) A 
qualified/competent person who would inspect the rigging and anchorages 
on buildings annually, and (2) a professional engineer who would 
certify the soundness of the rigging and anchorages every 10 years.
    According to an industry expert contacted by ERG, an estimated 3.0 
million window cleaning descents take place annually at 750,000 
buildings in the U.S. (ERG, 2007). In the absence of comments on the 
PEA in the proposal, OSHA is retaining these estimates in this FEA for 
the inspection and certification requirements specified by final Sec.  
1910.27(b)(1)(i). Using data collected by the Department of Energy 
(DOE) for surveys on energy use, ERG compared this estimate with the 
number of commercial and residential buildings with four or more 
floors. The 2003

[[Page 82837]]

Commercial Buildings Energy Consumption Survey identified about 140,000 
commercial buildings nationwide (DOE, 2006). The 2001 Residential 
Energy Consumption Survey (RECS) identified about 2.4 million apartment 
buildings with 5 to 10 floors, 0.9 million apartment buildings with 11 
to 20 floors, and an unspecified number of buildings with more than 20 
floors (DOE, 2004). Summing the three categories of residential 
buildings, ERG estimated that there are approximately 3.3 million 
residential buildings in the U.S. with five or more floors.\145\
---------------------------------------------------------------------------

    \145\ Since publication of the PEA, DOE released the results 
from its 2009 Residential Energy Consumption Survey (RECS) (DOE, 
2013). According to the 2009 RECS, 1.9 million apartment buildings 
have 5 to 10 floors, 0.9 million apartment buildings have 11 to 20 
floors, and 0.4 million apartment buildings have more than 20 
floors. Summing the three categories of residential buildings, OSHA 
estimates that there are approximately 3.3 million residential 
buildings with five or more floors, a total that is identical to 
OSHA's preliminary estimate of 3.3 million residential buildings 
with at least five floors. Therefore, OSHA applied its preliminary 
estimate of tall residential buildings for this final analysis.
---------------------------------------------------------------------------

    OSHA assumed that each commercial building has its windows cleaned 
annually, thereby accounting for 140,000 of the estimated 750,000 
window cleanings per year. If the 3.3 million residential buildings 
account for the remaining 610,000 cleanings, each of these buildings 
would, on average, have its windows cleaned every five to six years.
    ERG's industry expert estimated that a minimum of 20 percent of the 
building owners complied with the anchorage-inspection requirement, and 
that the number was increasing. However, comments submitted to the 
Agency in response to the 2003 reopening were inconsistent regarding 
the likelihood that building owners inspect their anchorages on a 
periodic basis. Amodeo (2003) noted that some clients view ANSI I-14.1 
as voluntary and resist having inspections. Kreidenweis (2003) 
commented that engineers seldom inspect anchorages.\146\ In contrast, 
Lebel (2003) noted that many buildings have a roof plan and identified 
anchorages (i.e. anchorages designated for use in window cleaning), 
certified by a professional engineer. Zeolla (2003) stated that most 
buildings that invest in anchors are inspecting them. On the basis of 
these comments, OSHA in the PEA estimated that 25 percent of the 
approximately 750,000 buildings cleaned every year undergo anchor 
certification on a consistent basis.
---------------------------------------------------------------------------

    \146\ OSHA notes that in the 2010 Proposed Rule, the Agency 
requested comment on inspection and maintenance of rooftop 
anchorages but nowhere stated that a revised OSHA standard would 
require an engineer to perform those duties.
---------------------------------------------------------------------------

    OSHA's final standard provides more detailed requirements for 
anchorages used with rope descent systems than the proposed standard. 
Final Sec.  1910.27(b)(1)(i) states that before any rope descent system 
is used, the building owner must inform 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 
(268 kg), in any direction, for each employee attached. The information 
must be based on an annual inspection by a qualified person and 
certification of each anchorage by a qualified person, as necessary, 
and at least every 10 years.
    Therefore, for this FEA, OSHA revised upward its estimate of the 
baseline level for anchor certification. Accordingly, OSHA believes 
that the current baseline is at least 35 percent nationwide, and may be 
much higher in some markets. For example, the owner of Chicago's 
largest window cleaning company testified in OSHA's public hearings on 
the NPRM that in Chicago, 60 to 70 percent of building owners provide 
documentation of anchor certification (Ex. 329 (1/19/2011), p. 218). 
Similarly, the owner of one of Houston's leading window cleaning 
companies testified that every building owner that he works with 
provides certification of anchorages (Ex. 329 (1/19/2011), p. 310). 
Recognizing that in some smaller markets, anchor certification may not 
be as widespread or frequent as suggested by these commenters, OSHA 
applied a baseline level of 35 percent for anchor certification and 
inspection in estimating costs for this requirement in the FEA.
    Therefore, if 65 percent of the approximately 750,000 buildings 
that have windows cleaned each year must now comply with the final 
inspection and certification requirement, then OSHA estimates that 
487,500 buildings will require annual inspections and decennial 
certifications. In the PEA, OSHA further assumed that a production 
supervisor would perform the annual inspections, and that it would take 
this supervisor one hour to perform the inspection. Annual costs in the 
PEA for the building inspections totaled $16.7 million; after adjusting 
wage rates to 2010 levels and applying the revised baseline estimate, 
OSHA in this FEA estimates annual costs of $14.1 million for the 
inspection of building roof anchorages.
    Table V-23 summarizes the range in costs for a professional 
engineer to certify building anchorages; OSHA drew these cost estimates 
from comments in the record, and adjusted the estimates to 2003 dollars 
using as the deflator the Consumer Price Index--All Urban Consumers 
(BLS, 2007). The costs range from a low of $175 to a high of $2,500; 
this range probably represents the variation in building sizes, 
complexity of anchorage arrangements, and regional standards. The 
median value is $1,000, which is the estimate (in 2005 dollars) applied 
by OSHA in the PEA.
[GRAPHIC] [TIFF OMITTED] TR18NO16.226


[[Page 82838]]


    A cost breakdown of inspections and anchor installations provided 
by Valcourt Building Services (Valcourt; Ex. 358) confirms OSHA's 
preliminary estimate of the cost for the certification of building 
anchorages; Valcourt's quote for initial roof certification was $1,090. 
For this final cost analysis, OSHA applied the ratio of the 2011 GDP 
deflator and the 2005 GDP deflator to its preliminary estimate to 
derive an estimate of $1,122 in 2011 dollars for initial roof anchor 
certifications.
    Assuming, as indicated earlier, that building owners would certify 
building anchorages every 10 years, OSHA estimates that 48,750 
buildings (one-tenth of 487,500 buildings) would need anchorage 
certification each year. At an average cost of $1,122 for 
certification, annual costs for anchorage certification would total 
$54.7 million.
    During the course of decennial certifications and annual 
inspections, engineers will determine that a small percentage of 
anchorages will need replacement due to failure to meet building codes 
or other applicable requirements. For this final economic analysis, 
OSHA has included the cost for the purchase and installation of 
replacement anchorages. Based on a review of OSHA 2005 inspection data 
for the Service industry sector (NAICS 54-81), OSHA calculated that 
0.23% of inspected anchorages will be found to be out of 
compliance.\147\ Applying this anchorage failure rate to the annual 
number of affected buildings, 750,000 building, yields an estimated 
1,734 anchors replaced yearly. At a unit cost of $1,000 per anchor 
\148\ and an installation time of three hours, annual costs for 
replacement of roof anchors are expected to total approximately $1.9 
million. (See Ex. [OSHA Excel Workbook], Tab annual_27.)
---------------------------------------------------------------------------

    \147\ Of 38,714OSHA inspection in 2005, 11,469 resulted in 
citations, of which 1,938 were in Service industry sector (NAICS 54-
81). One hundred and sixty-two citations in the Service industry 
sector referenced Subpart D, and of that total, 15 citations 
referenced 1910.28, Scaffolds, the existing standard judged by OSHA 
to be most closely associated with the final provision for 
anchorages stabilizing suspended scaffolds. (See https://www.osha.gov/dep/enforcement/enforcement_results_05.html and 
Document ID [OSHA Excel Workbook], Tab Compliance.) Therefore, 
(11,469 citations/38,714 inspections) * (162 Service industry sector 
citations in Subpart D/1,938 Service industry sector citations) * 
(15 Scaffolds citations/162 Subpart D citations) = 0.23% probability 
of a scaffolds citation in Service industry sector.
    \148\ Google shopping: Grainger roof anchor.
---------------------------------------------------------------------------

    Summing costs for inspecting and certifying building anchorages and 
replacing faulty anchors, OSHA estimates that annual costs would total 
$71.1 million for employer compliance with the anchorage inspection and 
certification requirements specified by final Sec.  1910.27(b)(1).
    RDS distance limitation. Final Sec.  1910.27(b)(2)(i) prohibits the 
use of a rope descent system (RDS) for heights greater than 300 feet 
(91 m) above grade unless the employer can demonstrate that it is not 
feasible to access heights above 300 feet by any other means or that 
these other means result in a greater hazard to employees than an RDS. 
Based on comments in the record (Exs. 126; 163; 219; 222; 358), and as 
discussed earlier in this section, OSHA expects that there are 1,300 
buildings over 300 feet tall subject to this limitation. In written 
testimony, Valcourt Building Services estimated that limiting the RDS 
distance to 300 feet would lead to an increase in window cleaning costs 
ranging from 10 to 20 percent (Ex. 358, p. 4). In a comment submitted 
in response to the 2003 Notice, Braco Window Cleaning Service, Inc. 
estimated that the 300-ft. limit to RDS would lead to an increase in 
prices of 30 percent for building owners (Kreidenweis, 2003). As noted 
earlier in this analysis of costs, Corporate Cleaning Services 
estimated that the RDS distance limit would increase costs for use of 
suspended scaffolds by up to 30 percent (Ex. 126). Combining the Braco 
and Corporate Cleaning estimates of percentage cost increase with the 
Valcourt range of percentage cost increase, OSHA estimates that if a 
typical window cleaning job on a tall building takes 24 hours for a 4-
person crew (production worker loaded wage in NAICS 5617--Services to 
Buildings and Dwellings is $19.39), then applying the midpoint of the 
range of 10 percent to 30 percent (i.e., 20 percent) to the number of 
affected buildings results in an annual increased labor cost of 
$484,000.
    In addition to the labor costs associated with this distance 
limitation, a small fraction of affected buildings will now need to 
acquire suspended scaffolds (i.e., swing stages) or powered platforms 
to service windows at distances over 300 feet from the building roof. 
OSHA believes that building owners will elect to purchase or contract 
with window cleaning services to purchase the least expensive system 
that delivers the appropriate level of safety. According to Valcourt, 
transportable swing-stage systems are available for $25,000 per unit, 
and that approximately 10 percent of the affected buildings that they 
service would need to purchase such units (Ex. 358, p. 4). Therefore, 
applying the unit cost for suspended scaffolds to 10 percent of 
affected buildings (10 percent of 1,300 buildings, or 130 buildings), 
OSHA estimates that employers will incur first-year costs of $3.25 
million. Annualized over 10 years, equipment costs associated with the 
RDS height limitation will total $463,000.
Duty To Have Fall Protection and Falling-Object Protection (Sec.  
1910.28)
    Table V-24 lists the requirements in this section that are likely 
to result in new cost burdens on employers.

[[Page 82839]]

[GRAPHIC] [TIFF OMITTED] TR18NO16.227


[[Page 82840]]


[GRAPHIC] [TIFF OMITTED] TR18NO16.228

The following discussion presents, by requirement, the details of 
OSHA's cost analysis for this section.
    Chimney-cleaning services. OSHA received comments indicating that 
the chimney cleaning industry would incur additional costs, when 
compared to its current practices, and therefore OSHA has included 
these costs in its analysis. To protect chimney sweeps from falls after 
they ascend to residential and commercial roofs using ladders or 
lifting devices, OSHA's cost model determined that, for the roughly 
6,000 chimney-sweep companies nationwide, affected employers will use a 
roof anchor kit that includes a 14-inch steel roof anchor, 50-foot 
lifeline and hardware assembly, and a 3-foot shock-absorbing lanyard 
and full-body harness with a unit cost of $368. In addition, employers 
will need two harnesses, at $118 per unit, to equip the typical two-man 
or three-man crews involved in each job; the cost model assigned three 
calls daily for each chimney-sweep crew. Based on comments in the 
record (Ex. 329 (1/18/2011), pp. 97, 101, 162, 176-178), OSHA estimates 
that 10 percent of chimney-sweep employers currently protect their 
workers from falls in accordance with the requirements of this final 
standard. In addition to the initial equipment costs annualized over 10 
years, employers will incur the following labor and equipment costs:
     Pre-installation of anchors requiring one-half hour of a 
production worker's time, at a loaded wage = $19.39/hour, per anchor;
     Monthly replacement of roof anchors due to deterioration; 
and
     A production worker's time of five minutes per job to use 
the lifeline and lanyard system (productivity loss).
    Combining annualized initial costs and annual recurring costs for 
fall protection of chimney sweeps (NAICS 56179), OSHA estimates that 
the new costs associated with this industry will total $12.7 million, 
or $2,124 per chimney-sweep company each year.\149\
---------------------------------------------------------------------------

    \149\ Initial equipment (capital) cost = roof anchor kit * no. 
of chimney sweep companies * (1-industry baseline) + full body 
harness unit cost * no. of chimney sweep companies * sweeps needing 
harness * (1 - industry baseline) = $368 * 6,000 * (100% - 10%) + 
$118 * 6,000 * 2 * (100% - 10%) = $3,261,600
    Initial system installation = no. of chimney sweep companies * 
time to pre-install anchors * production worker loaded wage * (1 - 
industrybaseline) = 6,000 * 0.5 hour * $19.39 * (100% - 10%) = 
$52,581.
    Annual costs = roof anchor unit costs * no. of chimney sweep 
companies * monthly anchors per company * months per year + 
production worker loaded wage * lifeline productivity loss * sweep 
calls per day * workdays per year * no. of chimney sweep companies * 
(1 - industry_baseline) = $66.95 * 6,000 * 1 * 12 + $19.39 * .083 
hours * 3 * 250 * 6,000 * (100% - 10%) = $4,820,400 + $6,572,621 = 
$11,393,021.
    Additional, relatively minor training and other costs related to 
hazard communication and rule familiarization bring the total 
annualized costs for chimney cleaning services to approximately 
$12.7 million.
---------------------------------------------------------------------------

    In post-hearing comments, the National Chimney Sweep Guild stated 
that compliance with the proposed standard is infeasible and would pose 
a greater hazard during sweep activities typically performed by their 
members (Ex. 342, p. 3). However, the sweeps guild did not provide 
information or data on the extent of the infeasibility that the 
requirement would impose on NCSG members. Indeed, OSHA notes that 
NCSG's quoted price for the initial installation of a roof anchor-
system ($578) (Ex. 365) is consistent with OSHA's estimate of combined 
up-front cost for (1) a roof anchor kit ($368), (2) monthly replacement 
of a worn roof anchor ($67) per company, (3) a full-body harness ($118) 
for each of the sweeps, and (4) labor for installation of each new or 
replaced anchor ($18); Section H of this FEA demonstrates that these 
costs are feasible economically.
    In response to NCSG's concerns, OSHA notes that final Sec.  
1910.28(b)(1) provides an exception to the duty for fall protection for 
work on residential roofs when an employer can demonstrate that it is 
not feasible, or creates a greater hazard, to use guardrail, safety-
net, or personal fall arrest systems. In such a case, the employer must 
develop and implement a fall protection plan that meets the 
requirements of 29 CFR 1926.502(k) and training that meets the 
requirements of 29 CFR 1926.503(a) and (c). Based on comment in the 
record by NCSG (Exs. 342; 365), OSHA determined that, for a small 
percentage of chimney-sweep jobs, chimney-sweep employers will find it 
infeasible to install roof anchors or other fall protection systems for 
technological, contractual, or other reasons. In these cases, the 
employer must develop a fall protection plan and provide training in 
accordance with the requirements in subpart M of the construction 
standards cited above. For this FEA, OSHA did not estimate the costs 
for fall protection plans and training because it believes that these 
costs will not exceed the equipment and labor costs described 
previously. Therefore, OSHA determined that the total cost for 
employers to protect their employees from fall hazards during chimney-
sweep jobs ($12.8 million, or $2,128 per chimney-sweep company) is the 
maximum or worst-case value.
    Dockboards. Final Sec.  1910.28(b)(4) would require installation of 
guardrails or handrails to protect employees on dockboards from falls 
of four feet or more to a lower level. Employers with dockboards having 
maximum heights that are less than four feet would not incur costs 
under this paragraph. This final provision exempts dockboards 
presenting a fall hazard of four feet up to 10 feet from this 
requirement when the employer uses the ramp exclusively for material-
handling operations with motorized equipment. To qualify for the 
exception, employers must train their employees in accordance with 
Sec.  1910.30. OSHA discusses the training costs for this provision 
later in this section.

[[Page 82841]]

    ERG estimated that a substantial proportion of dockboards would 
either not incur costs due to height or would fall under the exception. 
Thus, OSHA believes that any costs incurred under this provision are 
unlikely to be substantial. In the proposal, OSHA requested, but did 
not receive, comment on the potential impacts associated with the duty 
to protect employees on dockboards from falls. Therefore, OSHA applied 
its preliminary estimate of non-substantial costs associated with 
dockboard fall protection in this final analysis.
    Fixed Ladders. To address fall safety on fixed ladders that extend 
more than 24 feet above a lower level, as specified under final Sec.  
1910.28(b)(9), OSHA estimates that, of the approximately 3.1 million 
fixed ladders over 20 feet in height (ERG, 2007, Table A.1), around 
328,000 fixed ladders are between 24 and 30 feet high. Beginning 20 
years after publication of the final rule, employers would face 
additional requirements for fixed ladders beyond those found in 
voluntary consensus standards (notably ANSI-ASC A14.3-2008\150\) and 
the existing OSHA standards. Accordingly, employers must provide 
workers making climbs of 24 to 30 feet on fixed ladders 20 years after 
publication of the final standard with additional protections not 
currently provided by existing voluntary and mandatory industry 
standards. While much of general industry uses the affected ladders, 
this use occurs mainly in manufacturing and industrial buildings 
(105,000 ladders), silos (85,000), water tanks and water towers 
(53,000), ski lift towers (29,000), communications towers (25,000), and 
six other types of structures with fixed ladders (30,000) (see Ex. 
[OSHA Excel Workbook], Tab retrofit_28). The total for all affected 
fixed ladders is approximately 328,000 (after rounding).
---------------------------------------------------------------------------

    \150\ In ANSI-ASC A14.3-2008, American National Standard for 
Ladders--Fixed--Safety Requirements, the following provisions lead 
OSHA to infer that the use of ladder safety systems for ladder 
heights above 24 feet has become accepted industry practice.
    4.1.2 A cage or ladder safety system shall be provided where the 
length of climb is less that [sic] 24 feet but the top of the ladder 
is at a distance greater than 24 feet above ground level, floor, or 
roof (See Fig. 3).
    4.1.3 A ladder safety system shall be provided where a single 
length of climb is greater than 24 feet . . . .
---------------------------------------------------------------------------

    OSHA assigned costs for fall protection on fixed ladders as 
follows:
     The Agency distributed ladders among NAICS codes according 
to the number of affected establishments in the industry represented by 
a NAICS code; for example, if the 85,000 silos with fixed ladders were 
primarily in NAICS 3111, Animal Food Manufacturing, OSHA distributed 
the costs of ladder safety systems among the 1,817 establishments in 
NAICS 3111;
     OSHA averaged the cost of two leading ladder safety 
systems (DBI, Miller; average total upfront cost = $983, including two-
hour installation by a production supervisor; the systems are 30 feet 
in length, and include the cable, cable sleeve, and carabiner);
     The Agency estimated that fixed ladders have an average 
life of 30 years, that replacement of the fixed ladders would occur 
evenly across a 30-year period (10,921 ladders replaced each year by 
new ladders equipped with a safety system), and, with a phase-in date 
20 years after publication, some ladders still would require 
replacement anywhere from one to 10 years after the 20-year phase-in 
date;
     OSHA calculated first-year costs, then used a seven 
percent discount rate to annualize over 10 years; first-year costs 
total $8.5 million, and annualized costs total $1.2 million;
     Billboards with fixed ladders greater than 20 ft. were 
each assigned a 30-ft. ladder safety system; initial costs of $20.1 
million were annualized over ten years, resulting in annualized costs 
of $2.9 million.
    Therefore, the initial costs for fall protection on fixed ladders 
total $28.6 million, with annualized costs of $4.1 million.
    Outdoor advertising (billboards). This provision, Sec.  
1910.28(b)(10), covers the use of fixed ladders on billboards serviced 
by the outdoor-advertising industry. Based on discussions with the 
Outdoor Advertising Association of America, ERG estimated that the 
number of billboards with fixed ladders over 20 feet is approximately 
20,500 (ERG, 2007). Employees climb billboards from one to more than 12 
times a year, whenever they have to change the copy on the billboard. 
For the purposes of estimating costs, ERG assumed that an employee 
climbs each billboard an average of six times a year, totaling 123,000 
climbs (20,500 billboards x six climbs). Per the requirement in Sec.  
1910.140(c)(18) that personal fall protection systems must be inspected 
before initial use during each workshift, each time an employee climbs 
a billboard, ERG estimated that the employee takes two minutes to 
inspect the ladder safety system (246,000 minutes or 4,100 hours).\151\ 
Employees who climb billboards are generally in NAICS 5418 (Advertising 
and Related Services). In 2010, the average wage, including benefits, 
for this category was $22.76/hr. Thus, the estimated total cost to 
inspect ladder safety systems on billboards is approximately $93,000 
per year.
---------------------------------------------------------------------------

    \151\ The costs for inspecting ladder safety systems prior to 
use in outdoor advertising are separate from the costs for overall 
inspection of fall protection systems discussed below under Sec.  
1910.140(c)(18).
---------------------------------------------------------------------------

    As specified in Sec.  1910.28(b)(10)(ii), until the requirement for 
fall protection on fixed ladders in outdoor advertising becomes 
effective two years after publication of the final standard, employees 
who routinely climb fixed ladders on billboards must satisfy the 
criteria for qualified climbers found in Sec.  1910.29(h), i.e., must 
undergo training, demonstrate the capacity to perform the necessary 
climbs safely, use a body harness equipped with an 18-inch rest 
lanyard, have both hands free of tools or material when ascending or 
descending a ladder, use a fall protection system upon reaching the 
work position. For the purpose of estimating costs, OSHA determined 
that all employees who climb billboards are qualified climbers and that 
the training for a qualified climber includes instruction on having 
both hands free while ascending or descending the ladder (see final 
Sec.  1910.29(h)(2)). After the two-year phase-in period, employers 
will protect employees from fall hazards using on billboards using 
ladder safety systems, cages or wells, and personal fall arrest 
systems, which will require substantively identical training to the 
training specified by final Sec.  1910.29(h)(2). For the PEA, OSHA 
assigned the costs to train a qualified climber under proposed Sec.  
1910.28(b)(10)(v) through Sec.  1910.29(h); for this FEA, OSHA applied 
the same cost methodology (i.e., assigned costs to Sec.  1910.29(h)).
    Low-slope roofs. Final Sec.  1910.28(b)(13) standard requires 
employers to protect employees working on low-sloped roofs and exposed 
to fall hazards that are four feet (1.2 m) or more to lower levels. If 
the employee is working less than six feet (1.8 m) from the edge of the 
roof, the employer must use a guardrail system meeting the requirements 
of Sec.  1910.29 of the subpart, a travel restraint system meeting the 
requirements of subpart I of the part, or a personal fall arrest system 
meeting the requirements of subpart I of the part. If the employee is 
working at a distance more than six feet (1.8 m) but less than 15 feet 
from the roof's edge, employers must protect the employees using a 
guardrail system meeting the requirements of Sec.  1910.29 of the 
subpart, a travel restraint system meeting the requirements of subpart 
I of this part, a personal fall arrest system

[[Page 82842]]

meeting the requirements of subpart I of this part, or, if the work is 
infrequent and temporary, work in a designated area meeting the 
requirements of Sec.  1910.29 of the subpart. Finally, if the work is 
taking place 15 feet or more from the edge of the roof, the employer is 
not required to provide fall protection or use a designated area 
provided the work is both infrequent and temporary and the employer 
implements and enforces a work rule prohibiting employees from going 
within 15 feet (4.6 m) of the roof edge without using fall protection 
in accordance with paragraphs (b)(13)(i) and (ii).
    To estimate compliance costs for this provision, OSHA determined 
that the most significant incremental burden involves inspections or 
assessments of rooftop conditions prior to performing any work on the 
roof. The Agency assumed that most work on rooftops is infrequent and 
temporary, and occurs in areas that are six to 15 feet from the roof 
edge, thereby eliminating the need for guardrails, travel restraint 
systems, and personal fall arrest systems, and using designated areas 
instead.
    Similarly, for work performed 15 feet (4.6 m) or more from the roof 
edge, OSHA anticipates that most employers will adapt, at minimal cost, 
existing company work rules and training programs to comply with the 
final rule. As discussed earlier in this Preamble, OSHA's choice of 
regulatory text for Sec.  1910.28(b)(13)(iii) makes the final rule 
consistent with OSHA policy specified in a series of Agency 
interpretations of the construction fall protection standard for work 
performed 15 feet or more from the edge of a roof (see, e.g., letter to 
Mr. Anthony O'Dea (12/15/2003);\152\ letter to Mr. Keith Harkins (11/
15/2002);\153\ letter to Mr. Barry Cole (5/12/2000) \154\).
---------------------------------------------------------------------------

    \152\ OSHA letter to Mr. O'Dea available at: https://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_id=24682.
    \153\ OSHA letter to Mr. Harkins available at: https://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_id=24552.
    \154\ OSHA letter to Mr. Cole available at: https://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_id=24802.
---------------------------------------------------------------------------

    For work six feet or less from the roof edge with extensive fall 
exposure, and for work that is less than 15 feet from the edge that is 
not infrequent and temporary, OSHA believes that, where feasible, the 
majority of employers currently provide conventional fall protection 
(guardrails, travel restraint systems, or personal fall arrest systems) 
and therefore compliance costs will be insubstantial. OSHA bases this 
estimate in part because the final rule is consistent with provisions 
in the construction standard that require employers to provide 
conventional fall protection for workers exposed to unprotected sides 
and edges, and most leading edges (Sec.  1926.501(b)(1) and (2)). In 
addition, OSHA recognizes that awareness of existing consensus 
standards on fall protection--including ANSI A1264.1-2007, Safety 
Requirements for Workplace Walking/Working Surfaces and Their Access; 
Workplace, Floor, Wall and Floor Openings; Stairs and Guardrail 
Systems--have heightened use of conventional fall protection at roof 
perimeters and will minimize any incremental costs associated with 
final Sec.  1910.28(b)(13).
    Assuming one affected rooftop per affected establishment, OSHA 
estimated that twice per year, with the exception of establishments in 
agriculture, forestry, fishing, and hunting, affected employers would 
direct a production worker to conduct a five-minute assessment of all 
fall-related conditions on the low-slope roofs of facilities (the 
inspection time includes any follow-up assessment addressing safety 
concerns). Summing these labor costs across all affected NAICS codes, 
OSHA estimates that employer expenditures for inspection of low-slope 
roofs will total $34.2 million annually in this FEA.
    A small percentage of roof-top inspections are expected to reveal 
to employers the need for conventional fall protection near unprotected 
sides and edges. Basing calculations on 2005 OSHA inspection data, OSHA 
estimates that, depending on the NAICS sector, the probability of 
identifying an unguarded hazard during a rooftop climb and inspection 
will range from 0.07% to 0.28%. Applying these probabilities to the 
number of inspections (described above) and assuming that any 
enhancement of fall safety will be roughly equivalent to a fifteen-
minute labor expense in the installation of an anchor ($67) suitable 
for use with a personal lifeline and full-body harness (fully supplied 
at the baseline), OSHA estimates that the costs for addressing hazards 
identified in rooftop climbs and inspections will total $1.85 million. 
(See Ex. [OSHA Excel Workbook], Tab annual_28.)
    Summing employer expenditures for roof inspections and the costs of 
correcting the hazards identified in those inspections, total costs 
will be approximately $36.1 million.
    Slaughtering facility platforms. Final Sec.  1910.28(b)(14) is a 
new provision not in the proposal that requires employers to protect 
each employee on the unprotected working side of a slaughtering 
facility platform that is four feet (1.2 m) or more above a lower level 
from falling by using guardrails or travel restraint systems. When the 
employer can demonstrate that using guardrail systems or travel 
restraint systems is not feasible, employees may perform the work 
without guardrails or a travel restraint system provided that the work 
operation for which guardrails or travel restraint systems are 
infeasible is in process, the employer limits access to the platform to 
authorized employees, and trains the authorized employees in accordance 
with Sec.  1910.30.
    To derive compliance costs for this provision, OSHA estimated that, 
of the 3,817 establishments in NAICS 3116, Animal slaughtering and 
processing, 25 percent are currently in compliance. The Agency based 
this estimate on comments by the United Food and Commercial Workers at 
the OSHA public hearing (Ex. 329 (1/20/2011), pp. 63, 90) indicating 
that a few large meatpacking plants already installed travel restraint 
systems for fall protection on slaughter (kill) platforms. OSHA 
believes that, while the meatpacking plants identified in the 
rulemaking record determined that travel restraint systems are 
technologically feasible, other affected plants will choose instead to 
install guardrails at a cost that is potentially lower than the cost of 
travel restraint systems. Therefore, the Agency estimated that, on 
average, 10 platforms per establishment will need fall protection and 
that each establishment will install two portable guardrails, at an 
initial cost of $256 per guardrail, on the unprotected working side of 
slaughter-facility platforms stations, with the installation taking 10 
minutes of labor per guardrail (production worker wage = $17.19/hour). 
OSHA estimates that initial costs for 2,863 establishments in NAICS 
3116 will total $14.7 million. Annualized over 10 years at a seven 
percent discount rate, compliance costs will sum to a little under $2.1 
million per year for employers in animal slaughtering and processing 
facilities.
    Walking-working surfaces not otherwise addressed. In final Sec.  
1910.28(b)(15), OSHA introduces a duty to provide fall protection for 
surfaces not otherwise addressed in this section. Among the surfaces 
affected by this catch-all paragraph are stepbolts. OSHA determined 
that this requirement for protection on stepbolts will primarily affect 
establishments in NAICS 51, Information, and NAICS 7113, Promoters of 
performing arts, sports, and similar events, and that the preferred 
fall protection will be ladder

[[Page 82843]]

safety systems. For NAICS 51, OSHA estimated there were 97,000 step-
bolt structures requiring ladder safety systems across 16 four-digit 
NAICS industries (6,063 structures per NAICS industry). After 
accounting for significant baseline use of ladder safety systems (80 
percent in OSHA's estimation), the Agency assigned costs for the 
purchase and installation of these systems at $908/unit. Similarly, for 
NAICS 7113, OSHA assigned costs for the purchase and installation of 
ladder safety systems ($908/unit) for 2,613 structures with stepbolts 
(the estimated baseline use of ladder safety systems was again 80 
percent). Annualized over 10 years at a seven percent discount rate, 
costs were $2.7 million.
Fall Protection Systems and Falling-Object Protection--Criteria and 
Practices (Sec.  1910.29)
    For proposed Sec.  1910.29, OSHA determined that two requirements 
would impose significant new burdens on employers. Below are the 
details of OSHA's approach to estimating costs for this section of the 
standard.
    Inspection of manila, plastic, or synthetic rope. The final 
regulatory text for Sec.  1910.29(b)(15) requires inspection of manila, 
plastic, or synthetic rope used as rails and specifies that employers 
conduct such inspections as frequently as necessary to ensure that the 
rope meets the strength requirements specified in that section. The 
estimated inspection cost, then, would be the product of the:
     Number of guardrail systems;
     Proportion that use manila, plastic, or synthetic rope 
used as toprails or midrails;
     Number of inspections per year;
     Time required for each inspection (hours); and
     Average wage per inspector per industry ($/hr.).
    For the PEA, OSHA lacked data on the proportion of guardrail 
systems that use manila, plastic, or synthetic rope as top rails or 
midrails. However, OSHA considered it likely that employers would 
include the inspection of these alternate materials for toprails and 
siderails in the inspections performed under Sec.  1910.22, the general 
inspection requirements for walking-working surfaces for safety. 
Therefore, OSHA allocated no additional costs to this provision in the 
PEA.
    For this FEA, OSHA estimated that a small percentage of employers 
would identify defective rope (in rail systems) as a result of the 
inspections implied by final Sec.  1910.29(b)(15) and that these 
employers would purchase and install replacement rope. At $2.12 per 
foot for an estimated 20-foot (rescue-grade) guardrail rope with a 
working load limit of 900 lb. to 1,195 lb., and after accounting for 
baseline compliance with current floor guarding regulations (see Ex. 
[OSHA Excel Workbook], tab annual_29_b), and with an installation time 
of 10 minutes, OSHA estimates that the costs for repair or replacement 
of guardrail rope will total $0.67 million.
    Outdoor advertising. Final Sec.  1910.29(h) concerns the use of 
qualified climbers in the outdoor-advertising/billboard industry. 
Qualified climbers are an option available only to this industry for 
two years following publication of the final standard. Final paragraph 
(h) requires that qualified climbers:
     Be physically capable of performing the climbing duties 
(Sec.  1910.29(h)(1));
     Undergo training or an apprenticeship program (Sec.  
1910.29(h)(2));
     Be retrained as necessary (Sec.  1910.29(h)(2));
     Have the skill necessary to climb ladders, as demonstrated 
through formal classroom training or on-the-job training, and personal 
observation (Sec.  1910.29(h)(3)); and
     Perform climbing duties as one of their routine work 
activities (Sec.  1910.29(h)(4));
    For the purposes of estimating costs, OSHA in the PEA assumed that 
90 percent of the employees in the outdoor advertising industry who 
climb already had training as qualified climbers. Thus, there would be 
one-time costs associated with qualifying the remaining 10 percent of 
climbers. OSHA annualized these costs over 10 years at a rate of seven 
percent. The industry incurs annual costs for:
     Classroom training of new employees (Sec.  1910.29(h)(2) 
and (h)(3)));
     Retraining of employees as necessary (Sec.  
1910.29(h)(2));
     Employer performance observation (Sec.  1910.29(h)(3)); 
and
     Administrative costs to document training and retraining.
    For calculating one-time costs in the PEA, OSHA estimated that 713 
out of 7,132 of the employees (10 percent) who perform construction, 
installation, maintenance, and repair operations in NAICS 5418 
(Advertising and related services) would need to undergo training to be 
qualified climbers.
    The National Association of Tower Erectors developed a climber-
training standard with varying levels of expertise (authorized, 
competent, and competent rescuer), but does not offer training itself 
(NATE, 2006). The OSHA Training Institute offers three-day and four-day 
training courses in fall protection, the fees for which range from $549 
to $795. Commercial courses in fall protection reviewed by ERG on the 
internet in the mid-2000s ranged from one to five days with costs 
ranging from $500 to $2,500 per course (ERG, 2007). The prices include 
materials and the trainer's time.
    For the purpose of estimating costs, OSHA in the PEA estimated that 
employers could meet the requirements in the proposed standard by 
sending employees to a four-day training course at a cost of $1,500 for 
the course and $684 for the employee's time (based on an average wage 
of $21.39/hour for 32 hours), for a total of $2,184. Furthermore, the 
Agency estimated that the administrative tasks to document the training 
would require 15 minutes of a supervisor's time ($36.22/hour) for every 
10 employees trained. OSHA in the PEA estimated that the one-time cost 
to qualify the estimated 713 climbers would be $1.56 million, and the 
annualized cost would be $0.22 million per year.\155\ For this FEA, the 
Agency updated the employee's wage rate ($22.76/hour), the supervisor's 
wage rate ($36.07/hour), and the number of affected employees (10 
percent of 8,000, or 800 employees), resulting in an estimated one-time 
cost of $1.78 million, with an annualized cost of $0.25 million at a 
seven percent discount rate over 10 ten years.
---------------------------------------------------------------------------

    \155\ Employers may offer on-the-job training, and would 
presumably do so if the costs are less than the costs of commercial 
training. Thus, the estimated costs presented here may be 
conservative.
---------------------------------------------------------------------------

    For the purposes of estimating the annual costs associated with 
this provision, OSHA, consistent with the method presented in the PEA, 
applied the following unit estimates and assumptions:
     A supervisor observes each of the estimated 8,000 
qualified climbers for 15 minutes per quarter or 1 hour per qualified 
climber per year;
     A supervisor spends 15 minutes per year per qualified 
climber on administrative tasks for training and retraining;
     Ten percent of the climbers need retraining;
     Retraining consists of an eight-hour refresher course at a 
cost of $500; and
     The turnover rate is 47 percent;
     In the absence of this rule, no newly-hired workers would 
receive training that is compliant with the rule's requirements.
    Based on these estimates and assumptions, OSHA determined that the 
annual cost of this provision would be $12.2 million, of which $11.6 
million

[[Page 82844]]

involves training new hires.\156\ OSHA requested comment in the 
proposal on the assumptions and unit-cost estimates that it applied in 
its analysis of costs for qualified-climber training. In a post-hearing 
comment, the Outdoor Advertising Association of America (OAAA) provided 
data on the estimated number of sign structures (120,000 units), 
professional climbers (1,800 climbers), and climbs on fixed ladders 
(14,400 climbs per day) for OAAA member companies (Ex. 260). Although 
OAAA's figure for the number of climbers (1,800) is considerably lower 
than OSHA's estimate (8,000), OSHA notes that not all outdoor 
advertisers are OAAA members. Without further data on the number of 
professional climbers in the industry, OSHA was not able to further 
refine its preliminary estimate that all employees in NAICS 5418, 
Advertising and Related Services, involved with construction, 
installation, maintenance, and repair operations would be affected by 
the requirement for qualified-climber training. Therefore, other than 
applying the Census-related update from 7,132 affected workers to 8,000 
affected workers, OSHA applied the PEA methodology to this FEA without 
change.
---------------------------------------------------------------------------

    \156\ OSHA assumes that qualified climbers could not transfer 
their training from one employer to another employer.
---------------------------------------------------------------------------

Training Requirements (Sec.  1910.30)
    Fall hazards and equipment hazards. Final Sec.  1910.30(a) 
addresses training with respect to fall hazards for employees who use 
personal fall protection systems or who must receive the training 
specified elsewhere in subpart D before the employer exposes employees 
to a fall hazard. This provision requires that a qualified person 
conduct the training and the training:
     Include the types of fall hazards found in the workplace;
     Describe the procedures employees are to follow to 
minimize these hazards;
     Address the correct and safe procedures for installing, 
inspecting, operating, maintaining, and disassembling the personal fall 
protection systems the employee uses; and
     Address the correct and safe use of personal fall 
protection systems and equipment specified by this section, including, 
but not limited to, proper hook-up, anchoring, and tie-off techniques, 
and methods of equipment inspection and storage, as specified by the 
manufacturer.
    Final Sec.  1910.30(b) addresses training with respect to equipment 
hazards. In particular, employers must train employees in the proper:
     Care, storage, use, and inspection of equipment covered by 
subpart D before their use in accordance with recognized industry 
practices and manufacturer's recommendations;
     Placement and securing of dockboards to prevent 
unintentional movement;
     Rigging and safe use of rope descent systems; and
     Set-up and use of designated areas.
    OSHA included the costs for training required under final Sec.  
1910.27(b)(2) (Use of rope descent systems), Sec.  1910.28(b)(1) 
(Unprotected sides and edges), and Sec.  1910.28(b)(4) (Dockboards) in 
the cost estimate for final Sec.  1910.30.
    In a previous analysis, ERG estimated the number and percent of 
employees by industry that use personal protective equipment (PPE) such 
as body belts and body harnesses (ERG, 1999; Ex. 318). For the PEA, 
OSHA applied these industry-specific percentages to the number of at-
risk employees in 2007 to estimate the number of employees that need 
the type of training required under Sec.  1910.30. For this FEA, OSHA 
applied the preliminary industry-specific PPE percentages to the number 
of at-risk employees to derive an estimate of employees requiring PPE 
training.
    Some companies already provide this training. OSHA used data from 
the NOES survey (described above) to estimate, by NAICS code, the level 
of training already provided. For the purpose of estimating costs in 
the PEA, OSHA assumed that employees not already trained and using 
personal fall protection systems would undergo six hours of training on 
fall hazards and equipment hazards to address the requirements in 
proposed Sec.  1910.30(a) and (b)(1). For this FEA, OSHA applied the 
PEA's per-employee estimate of six hours of training for determining 
the costs of final Sec.  1910.30(a) and (b)(1).
    In the PEA cost model, OSHA assigned employees in the utility, 
sewage, and communications industry sectors (NAICS 2211-2213 and 5121-
5191) an additional half-day of training to specifically address the 
proposed requirements for step bolts (for a total of 10 hours of 
training). Similarly, the Agency assigned employees in NAICS codes 4881 
through 4884 (support activities for transportation by air, rail, 
water, and road, respectively) a half-day of training specifically to 
address requirements for dockboards. OSHA assigned window washers, 
found in NAICS 5617 (Services to buildings and dwellings), an entire 
day of training on rope descent systems (for a total of 14 hours of 
training). OSHA applied these preliminary training-cost estimates to 
this FEA. In addition, for this FEA, OSHA applied an hour of training 
on the use of fall protection equipment to employees in every NAICS 
code, except those codes listed immediately above, for which OSHA's PPE 
cost survey (ERG, 1999) indicated the presence of employees who use 
fall protection equipment.
    As specified in the final standard, a qualified person provides the 
required training. For the purpose of estimating costs, OSHA (as it did 
in the PEA and also in this FEA) assumed that the qualified person 
conducts the training at the workplace for a fee of $500 per day. The 
training fee includes instruction, travel, lodging, and per diem 
expenses, as well as hand-out materials. Employers incur this fee for 
every 10 employees (i.e., a class size of 10 employees). OSHA estimates 
that a supervisor would spend 15 minutes per employee per year 
performing administrative tasks such as maintaining and updating 
training records.
    The estimated total initial one-time cost for final Sec.  
1910.30(a) and (b) is $123.6 million. The annualized cost over 10 years 
at a discount rate of seven percent is $17.6 million. There also is an 
annual cost for training new employees on PPE and dockboards. OSHA 
applied BLS hires rates to estimate the annual number of new employees 
requiring training;\157\ the estimated annual cost for this requirement 
is $54.6 million.
---------------------------------------------------------------------------

    \157\ The BLS 2007 hires rates applied in the analysis are as 
follows: Mining and Logging (NAICS 1133, 2111)--45.4 percent; 
Durable Goods Manufacturing (NAICS 321, 33)--29.8 percent; 
Nondurable Goods Manufacturing (NAICS 31, 322, 323, 324, 325, 326)--
36.9 percent; Transportation, Warehousing, and Utilities (NAICS 22, 
48-49)--36.3 percent; Wholesale Trade (NAICS 42)--34.9 percent; 
Retail Trade (NAICS 44-45)--58.8 percent; Information (NAICS 51): 
31.2 percent; Finance and Insurance (NAICS 52): 31.7 percent; Real 
Estate and Rental Leasing (NAICS 53)--47.6 percent; Professional and 
Business Services (NAICS 54-56)--63.1 percent; Educational Services 
(NAICS 61)--30.7 percent; Health Care and Social Assistance (NAICS 
62)--35.4 percent; Arts, Entertainment, and Recreation (NAICS 71)--
81.8 percent; Accommodation and Food Services (NAICS 72)--82.8 
percent; and Other Services (NAICS 81)--41.9 percent. The annual 
number of affected new employees totals 233,328 within 6.9 million 
affected establishments, or 0.03 employees per affected 
establishment.
---------------------------------------------------------------------------

    Ameren Corporation appeared to believe that OSHA's time estimates 
of course durations used in its cost algorithms for training implied 
that the Agency would enforce minimal time standards for training. 
Ameren stated, ``There should be no time requirement. This moves away 
from performance based completely. The training should

[[Page 82845]]

cover the elements of all the fall protection systems that an employee 
will encounter and the uses, restrictions, etc. of each'' (Ex. 189). In 
response, OSHA notes that the time estimates used in its cost analyses 
for training and other requirements for a safety program are only to 
illustrate the Agency's estimates of typical or average times to 
complete these requirements, and that actual times may vary 
substantially from these estimates.
    Retraining. Final Sec.  1910.30(c) concerns the need to retrain 
employees whenever the employer has reason to believe that retraining 
is necessary for safety purposes. This need can occur because of 
changes in the workplace, fall protection systems, or fall protection 
equipment that render previous training invalid; or finding that 
employee knowledge or use of fall protection systems or equipment is no 
longer adequate. In the PEA, OSHA assumed that retraining already 
occurs at establishments that have training programs in place. For the 
remaining employees, OSHA assumed that five percent require retraining 
each year. OSHA estimated that the retraining course consists of a one-
hour supervisor-led refresher course that focuses on the areas in which 
the employee is deficient. For this FEA, the estimated annual costs for 
retraining total $2.0 million.
b. Estimated Compliance Costs by Provision in the Final Standard for 
Subpart I
    Hazard assessment. Final Sec.  1910.132(d) requires an employer to 
assess the workplace to determine if hazards are present or are likely 
to be present. In the PEA, OSHA assumed that the time needed by an 
employer to walk around the workplace, assess the potential hazard, and 
determine the appropriate PPE and training needed by the employees 
would vary with the size of the establishment. OSHA used the number of 
employees as an indicator of establishment size. OSHA estimated the 
time required for the hazard assessment as:
     1 to 19 employees: 1 hour
     20 to 99 employees: 2 hours
     100 to 499 employees: 3 hours
     500+ employees: 4 hours
    Furthermore, OSHA assumed:
     All establishments in the forestry, oil and gas, utility, 
manufacturing, and transportation sectors (NAICS 1131 through 3399 and 
4811 through 4931) would perform a hazard assessment because of the 
high level of risk involved in these sectors;
     Half the establishments in wholesale and retail sales 
(NAICS 4231 through 4543) would have slip, trip, or fall hazards such 
that they would be required to perform a hazard assessment;
     One-quarter of the establishments in the service 
industries (NAICS 5111 through 8139) would have slip, trip, or fall 
hazards such that they would be required to perform a hazard 
assessment; and
     According to the original Regulatory Impact Analysis for 
PPE and as reported in the 2013 Information Collection Request for PPE 
in general industry, 47 percent of establishments conduct the initial 
hazard assessment as a usual and customary practice.\158\
---------------------------------------------------------------------------

    \158\ See the Information Collection Request For Personal 
Protective Equipment (PPE) For General Industry (29 CFR Part 1910, 
Subpart I)) Office of Management and Budget (OMB) Control No. 1218-
0205 (January 2013), p. 5. Docket No. OSHA-2013-0004, Document ID 
0002.

This analysis resulted in a one-time cost of $79.0 million in the PEA, 
with an annualized cost of $11.3 million at seven-percent discount rate 
over 10 years. For this FEA, after adjusting for differences in wages 
and industry size and composition since the publication of the NPRM, 
one-time costs for the hazard-assessment requirement were $85.2 
million, with annualized costs of $12.1 million.
    In addition to the costs for assessing hazards in walking-working 
environments where the use of fall protection will be necessary, OSHA 
anticipates that employers will incur expenditures to address any 
hazards identified during the assessments. According to 2005 OSHA 
inspection data, the likelihood of a compliance violation of current 
Subpart D ranges from 0.24 percent (of inspections) for the Finance and 
Insurance industry sector to 0.81 percent for Wholesale Trade sector. 
Multiplying these noncompliance rates by the annual number of new 
employers entering business (determined by NAICS code as the product of 
a 7 percent establishment turnover rate and the number of 
establishments) and the cost of a typical correction--the purchase and 
ten-minute installation of a 6-ft. portable guardrail ($256 per 
guardrail + labor)--OSHA estimates that the costs for correcting 
hazards identified by the assessments required under Sec.  1910.132(d) 
will total $0.52 million. (See Ex. [OSHA Excel Workbook], tabs 
Compliance and Hazard Assessment & Training.)
    Summing the costs for hazard assessment and hazard correction 
implied by compliance with final Sec.  1910.132(d), OSHA estimates that 
total costs for this provision will be approximately $12.7 million.
    Ameren Corporation questioned whether, in light of existing OSHA 
standards, OSHA's assignment of costs for this provision was necessary. 
Ameren stated, ``This seems to be redundant whereas currently assessing 
fall protection needs is performed in accordance to the specific 
standard in which it is addressed'' (Ex. 189). In response, OSHA notes 
that, prior to the publication of the fall protection requirements in 
final subpart I, no standard explicitly requiring hazard assessment for 
fall protection in the workplace existed for general industry; 
therefore, OSHA must account for the incremental compliance burden 
resulting from these requirements.
    PPE training. Final Sec.  1910.132(f) requires that employers train 
employees before they use PPE in the workplace. OSHA included the costs 
for this final provision in the costs for Sec.  1910.30, described 
earlier.
    PPE inspection. Final Sec.  1910.140(c)(18) requires employers to 
inspect that personal fall protection systems before the initial use 
during each work shift for mildew, wear, damage, and other 
deterioration, and remove defective components from service. For the 
purposes of estimating costs, OSHA in the PEA assumed that on average 
each production employee who requires fall protection wears a personal 
fall protection system regularly, performs the required inspection once 
a week at the beginning of every workweek, works 50 weeks per year, and 
takes one minute to inspect the fall protection system (wage rates 
varied across four-digit NAICS codes). Beginning with a baseline 
estimate of the number of workers using fall protection (2.1 million 
employees), OSHA accounted for current PPE inspection (``current 
compliance'') by applying results from the NIOSH NOES database. In its 
use of that survey, OSHA regarded the percentage of employers 
conducting safety training as a reasonable proxy for PPE inspection. 
Reducing the affected workforce by the percentage currently conducting 
PPE inspection, OSHA derived a final estimate of 362,000 affected 
employees. OSHA's estimated cost for this provision in the PEA was 
approximately $7.3 million per year; for this FEA, the Agency estimated 
the cost to perform the inspection to be $10.2 million a year.
    Inspection of personal fall arrest systems will likely lead to the 
discovery of defective PPE, resulting in costs to repair or replace 
out-of-compliance PPE. OSHA expects that most employers will

[[Page 82846]]

opt to replace faulty PPE; to simplify the calculation of costs, OSHA 
conservatively chose one of the most expensive types of PPE needing 
replacement, a full-body harness ($118 per unit) and applied a non-
compliance rate to the percentage of employers who at the baseline 
(i.e., lacking NIOSH NOES training) are currently not conducting PPE 
inspection. To estimate the rate of non-compliance, OSHA identified 
current Subpart M, Fall Protection, Sec.  1926.502, Fall protection 
systems criteria and practices, in the construction CFR, as the 
standard analogous to final Sec.  1910.140. The OSHA inspection 
database for the most recent fiscal year (2015) reports that of 38,029 
inspections in NAICS 23, Construction, 544 inspections, or 1.43 
percent, resulted in citations for violation of Sec.  1926.502.\159\ 
Applying this PPE criteria violation rate in Construction, 1.43 
percent, to the number of affected establishments in general industry, 
and multiplying that product times the unit cost of harnesses, OSHA 
estimates that the cost for replacing defective PPE under Sec.  
1910.140 will total $0.85 million.
---------------------------------------------------------------------------

    \159\ See https://www.osha.gov/pls/imis/industryprofile.stand?p_esize=&p_stand=19260502&p_state=FEFederal&p_type=2 and https://www.osha.gov/pls/imis/industry.search?p_logger=1&sic=&naics=23&State=All&officetype=All&Office=All&endmonth=10&endday=01&endyear=2014&startmonth=09&startday=30&startyear=2015&owner=&scope=&FedAgnCode=.
---------------------------------------------------------------------------

    Summing the costs for PPE inspection and PPE replacement, OSHA 
estimates that employers will incur $11.0 million in new costs 
associated with the final provisions under Sec.  1910.140.
Rule Familiarization
    For this final economic analysis, OSHA has added an estimate for 
the compliance expenditures incurred by employers to gain familiarity 
with the final rule. OSHA estimated costs for rule familiarization by 
applying the methodology described above for Hazard Assessment and 
Training (Sec.  1910.132(d)), shown in the following exhibit. All other 
training costs associated with the final standard are addressed above 
under Sec.  1910.30.
    For the industries with less than 100 percent share needing hazard 
assessment, OSHA applied the estimated percentage to the time 
assumptions shown in Exhibit V-3. For example, for a very small (<20 
employees) retail establishment: 50% needing familiarization * 10 
minutes = 5 minutes per employer. For the industries where 100 percent 
of establishments will conduct hazard assessment, the average unit time 
per employment range (1-19, 20-99, etc.) shown in the exhibit was 
multiplied times the entire number of number of establishments whose 
employment falls within the range, by four-digit NAICS industry.\160\ 
All affected NAICS industries and establishments were costed. Labor 
costs were calculated using supervisor loaded wage, by NAICS industry. 
Costs for rule familiarization are expected to total $28.5 million in 
first-year costs, or $4.1 million per year when annualized over ten 
years.
---------------------------------------------------------------------------

    \160\ For example, for NAICS 2211: Electric power generation, 
transmission and distribution, in the Utility industry sector, the 
cost calculation was as follows: ((1,529 very small establishments * 
0.17 hours) + (152 small establishments * 0.25 hours) + (30 mid-size 
establishments * 0.33 hours) + (44 large establishments * 0.5 
hours)) * ($54.24 production worker supervisor hourly wage for NAICS 
2211) = $17,620. Analogous calculations were performed for each 
industry and summed to produce a total of $28.5 million in first-
year costs. See Ex. [OSHA Excel workbook], tab Rule Familiarization.
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7. Cost Summary
    Tables V-25 through V-27 summarize the costs by industry for each 
paragraph in the final standard. Table V-25 lists the first-year costs, 
which employers incur once to comply with the new requirements. For 
evaluating economic impacts, OSHA annualized these one-time costs over 
a 10-year period at a discount rate of 7 percent. Total first-year 
costs for final subparts D and I are $319.5 million, with annualized 
costs for the first year of $45.5 million.
    Table V-26 lists the recurring annual costs, such as inspections, 
training new employees, and maintaining safe conditions when fall 
hazards remain; OSHA estimates these costs to be $259.0 million. Table 
V-27 lists the annual costs by industry, which include the sum of the 
recurring costs and the annualized one-time costs; OSHA estimated these 
costs at $305.0 million.
    Listing annualized costs in descending order by section of the 
rule, OSHA projects that the most costly provisions address training 
programs ($74.2 million), scaffolds and rope descent systems ($71.6 
million), duty to have fall protection and falling-object protection 
($55.9 million), and general requirements ($33.2 million). Of these 
final costs, the most significant change in costs from the PEA involve 
the costs associated with the duty to have fall protection and falling-
object protection (Sec.  1910.28) ($55.9 million in FEA vs. $0.09 
million in the PEA) because the strengthened requirements for fixed 
ladders, roof edges, slaughtering platforms, and step bolts lead to 
additional employer expenditures for equipment and labor.
    For the category with the second largest compliance costs, 
scaffolds and rope descent systems, the final standard provides greater 
specificity than the proposal regarding the need for proper rigging, 
including sound anchorages and tiebacks. The final rule at Sec.  
1910.27(b)(1)(i) and (ii) states that before any rope descent system is 
used, the building owner must inform 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 (22.2 
kN) in any direction, for each employee attached and, moreover, that 
the employer must ensure that no employee uses any anchorage before the 
employer has obtained written information from the building owner that 
each anchorage meets the requirements of paragraph (b)(1)(i). Finally, 
the employer must keep the information on building anchorages for the 
duration of the job. The information must be based on an annual 
inspection conducted by a qualified person, with certification of each 
anchorage performed by a qualified person, as necessary, but at least 
every 10 years. As described earlier in this cost analysis, OSHA 
assumed that building owners and employers would comply with this 
requirement by scheduling periodic inspections and certifications of 
building anchorages.
    Because of the hazards associated with cleaning windows of office 
buildings and other tall structures while suspended on scaffolds or 
other devices (see Table V-6 for the number of reported fatalities in 
NAICS 561, Administrative and Support Services), OSHA raised the issue 
of proper safety during window cleaning in the 2003 notice that 
reopened the rulemaking record, and in the 2010 NPRM. In those notices, 
OSHA requested comment on the hazards associated with window cleaning 
and the safe practices recommended and implemented for the use of rope 
descent systems (68 FR 23534; 75 FR 28862). OSHA based its analysis of 
the costs of ensuring sound anchorages and rigging, described above, as 
well as the Agency's analysis of the costs for protecting workers on 
rope descent systems and suspended scaffolds, on the experiences and 
observations of the industry representatives who responded to OSHA's 
request for comment in 2003 and in OSHA's 2010 NPRM; therefore, the 
Agency believes that the record fully supports this cost analysis.
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BILLING CODE 4510-29-C

G. Economic Feasibility and Regulatory Flexibility Screening Analysis

1. Introduction
    OSHA determined that the costs of complying with the requirements 
of final subparts D and I will not impose substantial economic impacts 
on employers in the industries affected by the final rule. The costs 
imposed by the final standards are modest, and the increased safety and 
reduction in injuries and fatalities associated with the standards will 
reduce employers' direct and indirect costs. OSHA based this final 
economic-impacts analysis on the PEA, the rulemaking record, and 
revisions to OSHA's preliminary data as described above in section C 
(``Profile of Affected Industries, Firms, and Workers'') and section F 
(``Costs of Compliance'').
    Table V-28 summarizes OSHA's final estimate of impacts (annualized 
costs) for the two-digit NAICS industry groups affected by the final 
standards. ``Minimum'' and ``Maximum'' refer to the lowest and highest 
costs among the four-digit NAICS industries categorized within the two-
digit group. The following section discusses OSHA's methodology for 
assessing the significance of the impacts at the aggregate level 
presented in Table V-29 and at levels of greater industry detail.
2. Economic Screening Analysis
    To determine whether the final rule's projected costs of compliance 
would raise issues of economic feasibility for employers in affected 
industries, i.e., would adversely affect the competitive structure of 
the industry, OSHA first compared compliance costs, annualized at a 7 
percent discount rate, to industry revenues and profits. OSHA then 
examined specific factors affecting individual industries for which 
compliance costs represent a significant share of revenue, or for which 
the record contains other evidence that the standards could have a 
significant impact on the competitive structure of the industry.
    As noted, OSHA examined the potential impacts of the final rule two 
ways, i.e., as a percentage of revenues and as a percentage of profits. 
Table V-29 presents the estimated average receipts and profits by 
establishment and industry. In the PEA, OSHA, applying the methodology 
employed by ERG (ERG, 2007), estimated 2006 receipts based on 2002 
receipts and payroll data from U.S. Census Bureau, Statistics of U.S. 
Businesses, 2002, and payroll data from U.S. Census Bureau, Statistics 
of U.S. Businesses, 2006. For that calculation, OSHA assumed that the 
ratio of receipts to payroll remained unchanged between 2002 and 2006.
    For this FEA, OSHA applied Statistics of U.S. Businesses, 2007 data 
on establishments, firms, and revenue at the four-digit NAICS level. 
OSHA estimated profits from ratios of net income to total receipts as 
reported for 2000-2008 (nine-year average) by the U.S. Internal Revenue 
Service, Corporation Source Book (IRS, 2009). Profit data were not 
available at disaggregated levels for all industries; therefore, OSHA 
used profit rates at more highly aggregated levels for such industries.
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BILLING CODE 4510-29-C

[[Page 82872]]

    OSHA compared the baseline financial data with total annualized 
incremental costs of compliance by computing compliance costs as a 
percentage of revenues and profits. The Agency considers this impact 
assessment for all firms, presented in Tables V-28 and V-29, to be a 
screening analysis and the first step in OSHA's analysis of whether the 
compliance costs potentially associated with the final standards would 
lead to significant impacts on establishments in the affected 
industries. The impact of the final standards on the viability of 
establishments in a given industry depends, to a significant degree, on 
the price elasticity of demand for the services sold by establishments 
in that industry.
    Price elasticity refers to the relationship between the price 
charged for a service and the quantity of that service demanded; that 
is, the more elastic the relationship, the less able is an 
establishment to pass the costs of compliance through to its customers 
in the form of a price increase, and the more it will have to absorb 
the costs of compliance from its profits. When demand is inelastic, 
establishments can recover most of the costs of compliance by raising 
the prices they charge for that service; under this scenario, profit 
rates remain largely unchanged, and the industry remains largely 
unaffected. Therefore, any impacts are primarily on the consumers using 
the relevant services. However, when demand is elastic, establishments 
cannot recover all the costs simply by passing the cost increase 
through in the form of a price increase. Instead, they must absorb some 
of the increase from their profits, commonly by both reducing the 
quantity of goods and services produced and reducing total profits, 
though, in some cases, profits rate may remain unchanged. If demand is 
not perfectly elastic and if at least some of the costs in question are 
variable rather than fixed, ``when an industry is subject to a higher 
cost, it does not simply swallow it, it raises its price and reduces 
its output, and in this way shifts a part of the cost to its consumers 
and a part to its suppliers,'' as the court stated in American Dental 
Association v. Secretary of Labor (984 F.2d 823, 829 (7th Cir. 1993)).
    The court's summary is in accordance with micro-economic theory 
(subject to some caveats discussed below). In the long run, firms can 
only remain in business if their profits are adequate to provide a 
return on investment that ensures that investment in the industry will 
continue. Over time, because of rising real incomes and productivity, 
firms in most industries are able to maintain adequate profits. As 
technology and costs change, however, the long-run demand for some 
products increases and the long-run demand for other products 
decreases. In the face of rising external costs, firms that otherwise 
have a profitable line of business may have to increase prices to stay 
viable. Commonly, increases in prices result in reduced quantity 
demanded, but rarely eliminate all demand for the product. Whether this 
decrease in production results in smaller production for each 
establishment within the industry or in closing some plants within the 
industry, or a combination of these two effects, depends on the cost 
and profit structure of individual firms within the industry.
    If demand is completely inelastic (i.e., price elasticity is 0), 
then the impact of variable compliance costs (that is, costs that 
depend directly on the quantity of output produced) that are 1 percent 
of revenues for each firm in the industry would result in a 1 percent 
increase in the price of the product or service, with no decline in 
quantity demanded. Such a situation represents an extreme case, but 
might be correct in situations in which there are few if any 
substitutes for the product or service in question, or if the products 
or services of the affected sector account for only a small portion of 
the income of its consumers.
    If demand is perfectly elastic (i.e., the price elasticity is 
infinitely large), then no increase in price is possible and before-tax 
profits would decrease by an amount equal to the costs of compliance 
(minus any savings resulting from improved employee health and/or 
reduced insurance costs) should the industry attempt to keep producing 
the same amount of goods and services. Under this scenario, if the 
costs of compliance are such a large percentage of profits that some or 
all plants in the industry can no longer invest in the industry and 
receive an adequate return on investment, then some or all of the firms 
in the industry will close. The scenario of perfectly elastic demand 
can only arise when there are other goods and services that are, in the 
eyes of the consumer, perfect substitutes for the goods and services 
the affected establishments produce.
    A common intermediate case would be a price elasticity of one. In 
this situation, if the costs of compliance amount to 1 percent of 
revenues and are entirely variable rather than fixed, then production 
would decline by 1 percent and prices would rise by 1 percent over the 
long run. In this case, the industry revenues would stay the same, with 
somewhat lower production, but with similar profit rates. However, 
consumers would get less of the product or the service for their 
expenditures, and producers would have lower total profits; this, as 
the court described in American Dental Association v. Secretary of 
Labor, is the more typical case.
    If compliance costs are fixed--that is, they do not depend on 
quantity of output produced--they cannot be passed through to consumers 
in the short run. In the medium- to long-run, however, some producers 
may exit the industry, or new producers may fail to enter an industry 
to replace natural exit, thus decreasing total supply, increasing 
prices, and reducing the portion of costs borne by producers that 
remain in the industry (except in the case of perfectly elastic demand, 
as discussed above).
    However, there is still the question of whether these costs will 
reduce significantly the industry's competitive structure. For example, 
if an industry faces a 20 percent increase in costs due to a standard, 
and its product has an elasticity of demand of one, the industry may 
likely remain viable. However, if the standard leads to closing all 
small firms in the industry, this result would indicate that standard 
impaired the competitive structure of the industry. For this reason, 
when costs are a significant percentage of revenues, OSHA examines the 
differential costs by size of firm and other classifications that may 
be important.
    As indicated by the impact estimates shown in Tables V-28 and V-29, 
OSHA determined that, for all affected establishments in general 
industry, revenue impacts will not exceed 0.2 percent for any affected 
industry group, and profit impacts will not exceed 3.1 percent for any 
affected industry group. Therefore, the economic impact of the final 
rule will most likely consist of a small increase in prices of less 
than 0.2 percent for the goods and services provided by the affected 
employers. It is unlikely that a price increase of the magnitude of 0.2 
percent will significantly reduce the quantity of goods or services 
demanded by the public or any other affected customers or 
intermediaries. If industry can recoup substantially the compliance 
costs of the final rule with such a minimal increase in prices, there 
may be little effect on profits.
    In general, for most establishments, it would be unlikely that they 
could not pass some of the compliance costs along in the form of 
increased prices. In the event that unusual circumstances may inhibit 
even a price increase of 0.2 percent, profits in the majority of

[[Page 82873]]

affected industries would decrease by a maximum of about 0.1 percent.
    In profit-earning entities, a combination of increases in prices or 
reduction in profits generally can absorb compliance costs. As 
discussed above, the extent to which the impacts of cost increases 
affect prices or profits depends on the price elasticity of demand for 
the products or services produced and sold by the entity.
    Given the small incremental increases in prices potentially 
resulting from compliance with the final standards, and the lack of 
readily available substitutes for the products and services provided by 
the covered industry sectors, OSHA expects demand to be sufficiently 
inelastic in each affected industry to enable entities to substantially 
offset compliance costs through minor price increases without 
experiencing any significant reduction in total revenues or in net 
profits.
    Positive net benefits of a regulation can only be realized in the 
presence of an externality or other market failure; until now, society 
externalized many of the costs associated with the injuries and 
fatalities resulting from the hazards addressed by the final rule. That 
is, the prices of goods and services did not reflect the costs incurred 
by society from the fall-related injuries and death that occur during 
the production of these goods and services. The workers who suffer the 
consequences associated with the fall hazards also assume some of the 
costs of production. To the extent that society externalizes fewer of 
these costs, the price mechanism will enable the market to produce a 
more socially efficient allocation of resources. However, reductions in 
externalities alone do not necessarily increase efficiency or social 
welfare unless the benefits outweigh the costs of achieving the 
reductions.
    OSHA concludes that compliance with the requirements of the final 
standards is economically feasible in every affected industry sector. 
The Agency basis this conclusion on the criteria established by the OSH 
Act, as interpreted in relevant case law. In general, the courts hold 
that a standard is economically feasible if there is a reasonable 
likelihood that the estimated costs of compliance ``will not threaten 
the existence or competitive structure of an industry, even if it does 
portend disaster for some marginal firms'' (United Steelworkers of 
America v. Marshall, 647 F.2d 1189, 1272 (D.C. Cir. 1980)). As 
demonstrated by this FEA and the supporting evidence, the potential 
impacts associated with achieving compliance with the final rule fall 
well within the bounds of economic feasibility in each industry sector.
    OSHA does not expect compliance with the requirements of the final 
standards to threaten the viability of entities, or the existence or 
competitive structure of any of the affected industry sectors. In 
addition, based on an analysis of the costs and economic impacts 
associated with this rulemaking and the review of the record, OSHA 
concludes that the effects of the final rule on international trade, 
employment, wages, and economic growth for the United States would be 
negligible.

H. Regulatory Flexibility Screening Analysis

1. Introduction
    The Regulatory Flexibility Act, as amended in 1996, requires the 
preparation of a Final Regulatory Flexibility Analysis (FRFA) for any 
rule that determined to have a significant economic impact on a 
substantial number of small entities (5 U.S.C. 601-612). Under the 
provisions of the law, each such analysis must contain:
     A description of the impact of the rule on small entities;
     A statement of the need for, and objectives of, the rule;
     The response of the Agency to any comments filed by the 
Chief Counsel for Advocacy of the Small Business Administration in 
response to the proposed rule, and a detailed statement of any 
revisions made to the proposed rule in the final rule as a result of 
these comments;
     A statement of the significant issues raised by the public 
comments in response to the initial regulatory flexibility analysis, a 
statement of the assessment of the agency of such issues, and a 
statement of any revisions made in the proposed rule as a result of 
such comments;
     A description and an estimate of the number of small 
entities to which the rule will apply, or an explanation of why no such 
estimate is available;
     A description of the projected reporting, recordkeeping, 
and other compliance requirements of the rule, including an estimate of 
the classes of small entities that will be subject to the requirements 
and the type of professional skills necessary for preparation of the 
report or record; and
     A description of the steps the agency took in the final 
rule to minimize the significant economic impact on small entities 
consistent with the stated objectives of the applicable statutes, 
including a statement of the factual, policy, and legal reasons for 
selecting the alternative adopted in the final rule, and why the agency 
rejected each of the other significant alternatives to the rule 
considered by the agency that affect the impact on small entities.
    To determine the need for a FRFA, OSHA conducted a regulatory 
flexibility screening analysis to assess the potential impacts of the 
proposed standards on affected small entities. On the basis of the 
screening analysis, presented below, the Assistant Secretary certifies 
that it does not expect the final standards for walking-working 
surfaces and personal protective equipment to have a significant impact 
on a substantial number of small entities.
2. Impact of the Final Rule on Small Entities
    Based on the PEA and comments in the rulemaking record, OSHA 
estimated compliance costs and economic impacts for small entities 
affected by the final rule. Tables V-2 and V-3 in Section C presented, 
respectively, the profiles for two classes of general industry 
entities: Those entities classified as small according to Small 
Business Administration (SBA) criteria, and those entities with fewer 
than 20 employees. OSHA assigned costs to small entities by first 
determining the per-employee compliance costs for those cost items that 
are a function of the number of affected employees at a facility, and 
the per-establishment cost for those items that do not vary with 
establishment size. OSHA then calculated, by industry, the average 
number of employees for each of the two classes of small entities, 
multiplied these averages by per-employee compliance cost, and then 
added the establishment-based cost to determine the average compliance 
cost for each class of small entity. The Agency then multiplied these 
average costs by the numbers of small entities to produce the total 
compliance costs in each industry incurred by small entities.
    Table V-30 shows the resultant annualized compliance costs by 
industry sector for SBA-defined small entities, while Table V-31 shows 
the costs for entities with fewer than 20 employees. Compliance costs 
for SBA-defined small entities totaled $202.6 million, compared to 
$305.1 million for all entities. Compliance costs for entities with 
fewer than 20 employees totaled $161.6 million.
    OSHA calculated the economic impacts of these costs by comparing 
average compliance costs with average receipts and profits. Tables V-32 
and V-33 display the results of these calculations by four-digit NAICS 
industry sectors; these results are OSHA's final assessment of impacts 
on

[[Page 82874]]

SBA-defined small entities and entities with fewer than 20 employees 
(``very small entities''). Among SBA-defined small entities, compliance 
costs were less than three percent of profits for nearly all 
industries, and larger than one percent for only two industries: NAICS 
2213, Water, Sewage and Other Systems (5.3 percent); and NAICS 5617, 
Services to Buildings and Dwellings (2.6 percent). For entities with 
fewer than 20 employees, compliance costs as a percent of profits were 
less than five percent for nearly all industries, and larger than two 
percent for only two industries: NAICS 2213, Water, Sewage and Other 
Systems (11.7 percent); and NAICS 5617, Services to Buildings and 
Dwellings (4.2 percent).
    For one industry group, chimney-cleaning services, found in NAICS 
56179, Other Services to Buildings and Dwellings, OSHA estimates that, 
for the approximately 6,000 establishments providing chimney-cleaning 
services affected by the final rule, economic impacts could be 
significant. OSHA estimates that compliance costs could reach 0.6 
percent of pre-regulation revenue if the establishments passed all 
costs forward to customers (primarily homeowners) or, at the other 
extreme, costs could approach 15.4 percent of pre-regulation profits if 
the establishments passed none of the costs forward to customers, but 
instead absorbed the costs from profits. For several reasons, OSHA 
believes that demand for chimney-cleaning services is relatively 
inelastic and, therefore, cost impacts are more likely to result in 
price adjustments than profit reduction.
    On the question of passing compliance costs forward to customers, 
the National Chimney Sweep Guild noted in a pre-hearing comment:

    Unless the homeowner is willing to pay for this added time, then 
each job becomes less profitable. Furthermore, the additional time 
required to perform the work would significantly reduce the number 
of jobs that could be performed per day to the point where the 
business would have to double its staff to perform the same number 
of jobs and the business would no longer be profitable. Especially 
in the current economic climate, homeowners are generally unwilling 
to absorb these added costs. (Ex. 296, p. 29.)

OSHA disagrees with this comment because, first, all employers 
providing chimney-cleaning services would face the new requirements at 
the same time and, therefore, would have few incentives to hold the 
price of the services steady at pre-regulation levels with the 
expectation of gaining enough additional business to offset the 
compliance costs.
    Second, chimney-cleaning services involve almost exclusively 
domestic American businesses. Therefore, international-trade factors 
would not present competitive pressures to keep prices at the baseline 
levels (thereby reducing profits).
    Third, under the final rule, in the event that conventional fall 
protection is infeasible or creates a greater hazard, employers could 
develop a fall protection plan, the costs of which are likely to be 
minimal because templates for such plans should be readily available on 
the Internet. In such cases, employers likely would pass the cost 
forward to customers.
    Finally, OSHA believes the increase in price resulting from the 
cost increase would be modest. Accordingly, the price increase would 
not dissuade homeowners from continuing a contractual relationship with 
chimney-cleaning services.
BILLING CODE 4510-19-P

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BILLING CODE 4510-29-C
    OSHA's impact analysis for small entities indicates that one other 
industry, NAICS 2213--Water, sewage and other systems, will experience

[[Page 82925]]

significant profit impacts under a worst-case scenario: Costs are 5.3 
percent of profits for entities defined as small by the SBA, and costs 
are 11.7 percent of profits for entities with fewer than twenty 
employees. While profit impacts at these levels suggest that utilities 
in NAICS 2213 may have to reduce operations substantially if they are 
unable to pass forward to customers the approximately $3,441 in 
annualized compliance costs, OSHA expects that most water and sewage 
employers will not experience profit impacts of that severity. First, 
whereas the estimate of revenue per small entity (fewer than 100 
employees) in 2007 is approximately $823,000 (Tables V-2 and V-32), 
according to 2012 Census data, revenue per small entity in NAICS 2213 
rose to $956,000. Assuming those higher per-entity revenues continued 
up until the scheduled compliance with this final standard, the impacts 
of costs on revenue and profit would be less severe than suggested 
using the 2007 receipts data.
    Moreover, there is reason to think that OSHA's data understates 
actual profits for small utilities. Many small utilities are organized 
as cooperatives and a modest percentage of utilities file income tax 
returns as S Corporations, and the tax law allows both types of 
entities to pass profits back to members without being taxed as income 
at the business level. According to IRS data,\161\ of the 3,216 tax 
returns filed by utilities (NAICS 22) as S corporations in 2012, only 
2,693 S-corporation utilities reported net income, suggesting that of 
the 5,973 firms in NAICS 22 in 2012, just under 9 percent ((3,216 S 
returns filed--2,693 S returns with net income)/5,973 total returns in 
NAICS 22) may have had profit that was not reported as income on the 
corporate return. However, they would have been included in the balance 
sheet data that formed the basis for the calculation of the average 
profit rate, 5.4 percent, for NAICS 2213. As evidence supporting this 
conclusion, IRS data indicate that for S utility corporations that 
reported net income, 2012 profit rates averaged 9.7 percent.\162\ 
Therefore, if the overall nine-year (2000-2008) average profit rate for 
NAICS 2213 underestimates the actual profit rate for the industry, 
impacts resulting from compliance with this final standard may be 
overstated in Tables V-32 and V-33.
---------------------------------------------------------------------------

    \161\ See https://www.irs.gov/uac/soi-tax-stats-s-corporation-statistics, Table 1: Returns of Active Corporations, Form 1120S and 
Table 2: Returns with Net Income, Form 1120S.
    \162\ See https://www.irs.gov/uac/soi-tax-stats-s-corporation-statistics, Table 2: Returns with Net Income, Form 1120S. For 
Utilities in 2012, Total net income (less deficit) = $689,965 
thousand, or $690.0 million, and Total Receipts = $7,112,150 
thousand, or $7.1 billion. Profit rate = $690 million/$7.1 billion = 
9.7 percent.
---------------------------------------------------------------------------

3. A Statement of the Need for, and Objectives of, the Rule
    Employees in general industry performing construction, 
installation, maintenance, and repair tasks are exposed to a range of 
significant slip, trip, and fall hazards that cause serious injury and 
death. OSHA estimates that approximately 202,100 serious injuries and 
345 fatalities occur annually among these employees. Although employers 
could prevent some of these incidents with increased compliance with 
existing safety standards, research and analyses conducted by OSHA 
found that many preventable injuries and fatalities would continue to 
occur even if employers achieved full compliance with the existing 
standards. Without counting incidents that employers could potentially 
prevent by complying fully with existing standards, OSHA estimates that 
full compliance with these final standards would prevent 5,842 
additional injuries and 29 fatalities annually, even with full 
compliance with the existing standard.
    As explained above, additional benefits associated with this 
rulemaking involve providing updated, clear, and consistent safety 
standards regarding fall protection in general industry to the relevant 
employers, employees, and interested members of the public. The 
existing OSHA standards for walking-working surfaces in general 
industry are over 30 years old and inconsistent with the more recently 
promulgated standards addressing fall protection in construction. OSHA 
believes that the final updated standards are easier to understand and 
to apply than the existing standard, thereby benefiting employers and 
employees by facilitating compliance and improving safety.
4. Response to Comments Filed by the Small Business Administration
    The Small Business Administration's Chief Counsel for Advocacy (SBA 
Advocacy) submitted comments into the rulemaking record following 
publication of the NPRM. SBA Advocacy's comments (Ex. 124) covered four 
broad areas; OSHA addresses each area below.
    Area 1: ``OSHA should not include vague, overly-broad, `general 
duty clause' type requirements.''
    OSHA's response: SBA Advocacy expressed concern that some 
provisions, such as proposed Sec.  1910.22(a)(3) which required 
employers to ``ensure that all surfaces are designed, constructed and 
maintained free of recognized hazards,'' lacked detail and precise 
definition, and would, therefore, place an unreasonable compliance 
burden on employers. In the final standards, OSHA revised the proposed 
language of paragraph (a)(3) to provide specific examples of the types 
of hazards addressed by this provision--e.g., protruding or sharp 
objects, spills. The final regulatory text no longer requires that 
employers identify and correct all ``recognized'' hazards.
    Area 2: ``OSHA should further synchronize the proposed general 
industry rule with the existing construction standard.''
    OSHA's response: OSHA believes that, to the extent possible given 
the technological and work-organization differences between general 
industry and construction, the final standards mesh closely with the 
construction fall protection standards. Whenever possible, to avoid 
duplication, inconsistency, or overlap, the final standards reference 
the OSHA construction standards (for example, Sec.  1910.27(a), 
Scaffolds; Sec.  1910.28(b)(12), Scaffolds and rope descent systems; 
and Sec.  1910.29(b), Guardrail systems reference part 1926).
    Area 3: ``OSHA should not expand its reading of Section 1910.22 to 
regulate combustible dust.''
    OSHA's response: As noted in this preamble and in the preamble to 
the NPRM, OSHA interprets the housekeeping provisions in subpart D as 
applying to combustible-dust accumulations associated with fire and 
explosion hazards. Regarding this interpretation, one court stated that 
``the housekeeping standard is not limited to tripping and falling 
hazards, but may be applied to [a] 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), which 
reached the same conclusion). Following publication of the NPRM, OSHA 
received no evidence that the regulated community had technological or 
economic concerns about including combustible dust in the scope of the 
housekeeping section of final subpart D. Therefore, OSHA will continue 
to regulate combustible-dust hazards on walking-working surfaces in 
this final standard.
    Area 4: ``OSHA should not regulate commercial motor vehicles 
(trucks) under the proposed rule.''
    OSHA's response: Based on comments and testimony received on both 
the 2003 Reopening Notice and the 2010 Proposed Rule, OSHA finds it is 
sometimes feasible to provide fall protection for rolling stock where 
it is not contiguous or next to a structure.

[[Page 82926]]

However, OSHA still believes that additional information and data 
analysis is needed in order to determine an appropriate course of 
action. Therefore, this Final Rule does not include any specific 
requirements for fall protection on rolling stock and motor vehicles 
and OSHA's current existing enforcement policies on rolling stock and 
motor vehicles will remain in effect. This issue is discussed further 
in the Summary and Explanation for final rule Sec.  1910.21(a).
5. Issues Raised Regarding the Small Business Regulatory Enforcement 
Fairness Act
    The U.S. Chamber of Commerce (``the Chamber'') addressed the 
absence of a review process under the Small Business Regulatory 
Enforcement Fairness Act (5 U.S.C. 601 et seq.) (SBREFA) during this 
rulemaking, stating:

    OSHA's decision to forgo SBREFA panel review for this rulemaking 
is even more troubling when one considers that the agency has 
undertaken SBREFA reviews with a number of rulemakings that have 
impacted a smaller number of workplaces and employees than this 
proposed walking-working surfaces revision will impact. . . . [T]his 
rulemaking will have a direct effect on a wide array of employers, 
both large and small, across all types of operations. This 
rulemaking is broader in application than many of the rulemakings 
noted above, with new requirements for training, and associated 
levels of personal protection. There are a large number of variables 
that will determine how these requirements will actually impact 
employers, especially small employers, and the agency would have 
benefited from the opportunity to obtain data and information from 
small employers. This is particularly true with respect to OSHA's 
effort to synchronize the general industry and construction industry 
provisions where small businesses are most likely to be confused and 
would have been able to provide useful input on achieving this goal. 
The scope of this regulation is so broad, and it will impose fall 
protection on so many workplaces for the first time, that OSHA 
should have conducted a panel to gather from affected entities 
direct information on how to better tailor this regulation. The 
Chamber urges OSHA to conduct a SBREFA panel review before 
proceeding to a final regulation. (Ex. 202, p. 2.)

In response to the concerns of the Chamber and the other stakeholders 
that expressed similar views (i.e., the Sheet Metal and Air 
Conditioning Contractors National Association (Ex. 165) and the 
National Federation of Independent Business (Ex. 173), OSHA notes that 
throughout the rulemaking process, during the public hearings and on 
other occasions (including during the 2003 reopening of the record for 
a request for information), OSHA solicited and received comment from 
small firms on a variety of issues. Topics that involved input from 
small firms included, for example, safety on fixed ladders in outdoor 
advertising (Exs. 136; 229), the design of guardrails and gates at 
ladderway openings (Exs. 68; 366), use of rope descent systems for 
window cleaning (Exs. 69; 76), and protection of utility workers when 
ascending and descending stepbolts (Ex. 155). In developing and 
finalizing its final standards for subparts D and I, OSHA thoroughly 
considered the concerns expressed by small firms and other stakeholders 
representing the views of small firms, and revised requirements as 
appropriate.
6. Information Regarding the Small Entities Covered by the Final Rule
    OSHA's analysis of the impacts of this final rule includes an 
analysis of the type and number of small entities impacted by the final 
rule. The final rule primarily impacts workers performing installation, 
maintenance, and repair tasks throughout general industry. To determine 
the number of small entities potentially affected by this rulemaking, 
OSHA used the definitions of small entities developed by the Small 
Business Administration for each industry. In section C of this FEA, 
OSHA discussed its methodology for determining the number of affected 
small entities, and presented its estimates of the number in Table V-2. 
As shown in that table, OSHA estimates that the final standards would 
cover 5.1 million small entities, employing 43.8 million workers, 
including 2.3 million workers directly exposed to slip, trip, and fall 
hazards. Industries (four-digit NAICSs) expected to have the highest 
number of affected at-risk employees include automotive repair and 
maintenance (390,000 employees), wired telecommunications carriers 
(170,000 employees), and lessors of real estate (84,000).
7. Administrative Costs for Employers
    OSHA issued the existing standards in subpart D in 1971 under 
Section 6(a) of the Occupational Safety and Health Act of 1970 (the 
Act) (29 U.S.C. 655). During the period since OSHA issued existing 
subpart D, interested parties recommended revisions to its standards. 
In addition, the majority of the existing OSHA standards for walking-
working surfaces are inconsistent with numerous national consensus 
standards and the more recently issued OSHA standards addressing fall 
protection elsewhere in general industry (e.g., Sec.  1910.66, Powered 
platforms for building maintenance) and construction (e.g., Sec.  1926 
Subpart M--Fall Protection).
    Section F, Costs of Compliance, above described, for categories of 
employee training, the administrative costs for employers. Accordingly, 
OSHA does not consider the costs to document the training and 
retraining of employees to be recordkeeping, but rather typical 
expenses involved in administering a safety program.
8. Minimizing the Economic Impact on Small Entities
    OSHA evaluated several alternatives to the final standards to 
ensure that the requirements would accomplish the stated objectives of 
applicable statutes and minimize the economic impact on small entities. 
For example, OSHA considered an alternative that would exempt small 
entities from the rule; however, the Agency rejected this alternative 
because it would unduly jeopardize the safety and health of affected 
employees. Throughout Section IV of this document, Summary and 
Explanation of the Final Rule, OSHA discusses other alternatives 
considered, generally in response to public comment.
    In developing the final rule, especially establishing compliance or 
reporting requirements or timetables that affect small entities, OSHA 
took the resources available to small entities into account. OSHA 
clarified, consolidated, and simplified the compliance and reporting 
requirements applicable to small entities to the extent practicable. 
Wherever possible, OSHA allowed the employer multiple options to 
control fall hazards. Therefore, OSHA made every effort to provide 
maximum flexibility in the choice of controls required by the final 
rule.
    To demonstrate the relative economic efficiency (i.e., cost 
effectiveness) of the final subpart D standards, OSHA selected eight 
provisions from these standards for which it considered alternative 
controls, but rejected these controls as inefficient from a cost-
effectiveness perspective. The table below presents OSHA's evaluation 
of the potential impacts associated with these alternative controls for 
the eight provisions.
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    OSHA also considered non-regulatory alternatives in determining the 
appropriate approach to reducing occupational hazards associated with 
work on elevated or slippery surfaces in general industry. The Agency 
discusses these alternatives in Section B of this FEA.

I. Sensitivity Analyses

1. Introduction
    In this subsection, OSHA presents the results of two different 
types of sensitivity analysis to demonstrate how robust the estimates 
of net benefits are to changes in selected cost and benefit parameters. 
In the first sensitivity analysis (the ``standard sensitivity 
analysis''), OSHA makes a series of isolated changes to individual cost 
and benefit parameters to determine their effects on the Agency's 
estimates of annualized costs, benefits, and net benefits. In the 
second sensitivity analysis--the ``break-even sensitivity analysis''--
OSHA investigates isolated changes to individual cost and benefit 
parameters, but with the objective of determining the magnitude of the 
changes needed for annualized costs to equal annualized benefits. The 
Agency is conducting these analyses for informational purposes only.
2. Sensitivity Analysis for Specific Parameters
    OSHA provides below a sensitivity analysis of some assumptions 
underlying the Agency's estimates of the annualized costs and benefits 
of the final rule. The calculations underlying the Agency's estimate 
that the compliance costs, benefits, and economic impacts associated 
with this rulemaking are generally linear and additive. Accordingly, 
the changes in the costs or benefits should generally be proportional 
to variations in the relevant input parameters. For example, if the 
estimated time for supervisors to inspect the conditions of walking-
working surfaces (to ensure that they are free of hazards) increased by 
100 percent, the corresponding labor costs for that task also should 
increase by 100 percent.
    OSHA evaluated a series of such changes in input parameters to test 
the validity of the general conclusions derived from the economic 
analysis. Overall, OSHA found these conclusions to be robust as even 
sizeable changes in the values of several input parameters did not 
substantially alter the estimates of the costs, benefits, or net 
benefits. Furthermore, the rule produces significant positive net 
benefits regardless of the revisions made to costs, benefits, or the 
discount rate. Table V-35 below provides the summary results of these 
sensitivity tests. In each sensitivity test, parameters other than the 
ones tested remained unchanged.
    In the first sensitivity test, OSHA adjusted the estimated 
noncompliance rates applied to the costs for the requirements for 
inspections and hazard corrections in final Sec.  1910.22(d). When OSHA 
doubles the noncompliance rates (deriving noncompliance rates that 
range from 6 percent to 27 percent), annualized costs rise by $33.2 
million (10.9 percent), with total compliance costs summing to $338.2 
million, and net benefits are reduced by an equal amount ($33.32 
million), to a level of $276.4 million. In the benefits sensitivity 
analysis, OSHA also considered the effect of changing these provisions 
on benefits.
    In the second sensitivity test on costs, when OSHA increased by 100 
percent the estimated time for supervisors to inspect walking-working 
surfaces for the presence of hazards (from one hour to two hours), the 
estimated total costs of compliance increased by $33 million annually, 
or about 11 percent of overall costs. In the third sensitivity test on 
costs, OSHA increased a set of values for variables critical to the 
estimated compliance costs for fall protection on fixed ladders as 
follows:
     Increased the estimate of the number of fixed ladders per 
establishment by 100 percent (0.45 to 0.9); and
     Increased the installation time for ladder safety systems 
by 100 percent (two hours to four hours).
    This sensitivity test increased the estimated annualized compliance 
costs by $0.4 million annually, about 0.1 percent of overall costs.
    In the fourth sensitivity test on costs, OSHA extended from 20 
years to 25 years after publication of the rule the date when OSHA 
would no longer accept cages and wells for fall protection, thereby 
requiring employers to install other forms of fall protection such as 
ladder safety systems on fixed ladders that extend more than 24 feet 
above a lower level. This sensitivity test decreased the estimated 
annualized compliance costs by $1.0 million annually, or about 0.3 
percent of overall costs.
    In the fifth sensitivity test on costs, OSHA retrofitted all fixed 
ladders over 20 feet in length with ladder safety systems (not just 
those ladders that extend more than 24 feet above a lower level) 
according to a 20-year deadline specified by final Sec.  
1910.28(b)(9)(i)(D), with the result that costs increased by $10.1 
million annually, or 3.3 percent of overall costs.
    OSHA believes this stringent test represents a highly unlikely 
scenario because the current consensus standard for fixed ladders--ANSI 
A14.3-2008, American National Standard for Ladders--Fixed--Safety 
Requirements--requires use of a ladder safety system only for single 
climbs in excess of 24 feet, whereas the 2002 version of that standard 
prescribed the use of ladder safety systems for climbs in excess of 50 
feet. Furthermore, current Sec.  1910.27(d)(5) permits the use of 
ladder safety devices instead of cages on tower, water-tank, and 
chimney ladders over 20 feet in unbroken length. In addition, evidence 
in the record suggests that firms with a choice of a cage/platform or 
ladder safety systems generally install ladder safety systems for 
ladders reaching heights above 30 feet, and that safety engineers are 
now designing solutions using ladder safety systems for fall protection 
during all long ladder climbs (Exs. 127; 369). Therefore, OSHA believes 
that only a small percentage of fixed ladders, i.e., ladders between 24 
and 30 feet in height, would require retrofitting with ladder safety 
systems 20 years after publication of the final rule.
    In a sixth sensitivity test on costs, OSHA increased by 100 percent 
the estimated time for employee training, which increased the estimated 
costs of compliance by $54.1 million annually, or about 18 percent of 
overall costs.
    Finally, in a seventh sensitivity test on costs, OSHA increased by 
100 percent the estimated time for a supervisor to conduct a hazard 
assessment needed before issuing personal fall protection equipment. 
This sensitivity test increased the estimated costs of compliance by 
$11.6 million annually, or roughly 4 percent of overall costs.
    In addition, OSHA examined the effect on annualized costs and 
benefits of changing the discount rate. Changing the discount rate from 
seven percent, used in the base case, to three percent would reduce the 
estimated costs of the final rule from $305.0 million to $297.0 million 
per year (while leaving estimated annual benefits unaffected), thereby 
increasing the estimated net benefits by $7.9 million. For both this 
scenario and for the primary (seven-percent rate) scenario, with the 
exception of the 20-year deadline for installation of specific types of 
fall protection on certain fixed ladders, OSHA assumed that employers 
would incur all costs (first-year and recurring) upon implementation of 
the final standards (i.e., no phase-in provisions).

[[Page 82931]]

OSHA also assumed that the benefits outlined in this section will begin 
accruing once the rule takes effect.
    OSHA recognizes that there is not one uniform approach to 
estimating the marginal cost of labor. For the economic analysis in 
support of the final rule, OSHA has estimated the marginal costs of 
labor as wages plus a fringe benefit rate of 41.5% (which includes some 
fixed costs such as health insurance). However, this approach does not 
account for overhead costs. For illustrative purposes in the context of 
this sensitivity analysis, OSHA has modified the cost estimates by 
including an overhead rate when estimating the marginal cost of labor. 
It is important to note that there is not one broadly accepted overhead 
rate in academic literature and estimating the most appropriate 
overhead rate for this FEA would require significant modeling, 
including as regards the interaction between overhead costs and the 
equipment and other costs that have been separately estimated. Further, 
the Department has not further analyzed an appropriate quantitative 
adjustment. Therefore, DOL adopted for the purposes of this specific 
exercise an overhead rate of 17%. This rate has been used by the EPA in 
its final rules (see for example, EPA Electronic Reporting under the 
Toxic Substances Control Act Final Rule, June 17, 2013), and is based 
upon a Chemical Manufacturers Association study.\163\
---------------------------------------------------------------------------

    \163\ The uncertainty surrounding the appropriate amount of 
overhead cost to include in loaded wages may be observed in the 
range of estimates that other Agencies have included for overhead 
rates specific to their requirement. For example, recent regulatory 
impact analyses conducted by agencies of the Department of Health 
and Human Services (HHS) have featured doubling of base wages to 
account for both fringe benefits and overhead. DOL's Employee 
Benefits Security Administration (EBSA) includes overhead costs that 
are substantially higher than EPA's and more variable across 
employee types than HHS's, as presented in detail at www.dol.gov/ebsa/pdf/labor-cost-inputs-used-in-ebsa-opr-ria-and-pra-burden-calculations-march-2016.pdf.
---------------------------------------------------------------------------

    Using an overhead rate of 17% would increase costs by $24.4 million 
per year, or 8.0 percent above the best estimate of costs. (See Table 
V-35)
    OSHA also performed sensitivity tests on a set of input parameters 
used to estimate the benefits of the final rule. In the first test, 
OSHA estimated that the final preventability rates for falls from 
ladders (20 percent), falls from roofs (20 percent), and falls to lower 
levels not elsewhere classified (5 percent) did not increase from the 
estimates applied in the PEA, but instead remained the same for this 
FEA (i.e., 15 percent, 15 percent, and 2.5 percent, respectively). As a 
result of using the (lower) preliminary preventability rates, the 
estimated monetized benefits fell by $89.6 million annually relative to 
final monetized benefits, or about 15 percent of overall benefits.
    In a second benefits sensitivity test, OSHA reduced the 
preventability rate for falls on the same level from 1 percent to 0 
percent. As a result, monetized benefits fell 13.8 percent ($85.0 
million) to $530.0 million, and net benefits fell to $225.0 million.
    In a third benefits sensitivity test, OSHA doubled the 
preventability rate for falls on the same level from 1 percent to 2 
percent. As a result, monetized benefits rose 13.8 percent ($85.0 
million) to $699.6 million, and net benefits rose to $394.6 million.
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    OSHA's benefits estimates are most sensitive when it comes to 
estimating the percentage of current injuries and fatalities avoided by 
full compliance with the final standards. OSHA closely examined 
available reports of fatalities related to the provisions in the 
existing and final standards and found that full compliance with the 
final standards would prevent 29 fatalities, or approximately 9 percent 
of all slip-, trip-, and fall-related fatalities in general industry 
(including, among the global group, accidents not directly addressed by 
the final standards). The true benefits of the final rule depend on how 
well these fatalities represent actual fall-related fatalities in 
general industry that compliance with the final rule would prevent. 
OSHA believes that the benefits in this FEA (see Table V-11) are 
representative of actual prevented fatalities; however, an average 
estimate such as presented here can mask year-to-year variations.
    The Agency believes that its estimate of annual fatalities 
involving slips, trips, and falls (about 345) in general industry is a 
much less sensitive estimate of actual fatalities than the estimate of 
the percentage of fatalities avoided. The estimate of the annual number 
of baseline fatalities is derived from 7 years of recent accident data 
with percent-distributed averages corroborated by 11 prior years of 
data, whereas the estimate of percentage of fatalities avoided is based 
on professional judgment (the determinations from which were placed 
into the record and reviewed by rulemaking stakeholders). Furthermore, 
as noted earlier, OSHA believes that its benefits estimates are low. 
Specifically, the Agency believes the training and work-practices 
requirements specified by the final standards would likely improve the 
use and application of safety equipment (including personal fall 
protection equipment), thereby further reducing fatalities and 
injuries.
    In conclusion, these sensitivity tests demonstrate that even with 
relatively large variations in the input parameters, there are no large 
changes in the estimates of compliance costs or benefits.
3. Sensitivity Analysis With Respect to Noncompliance and Possible 
Overestimation of Benefits
    In the benefits section, OSHA noted that an article by Seong and 
Mendeloff suggested that OSHA had, in a period of 17 to 27 years ago, 
estimated reductions in fatalities that were not in fact reflected in 
the observed data over the next ten years. All of the analyses in 
question assumed full compliance with the rule, as does this analysis. 
The resulting failures to meet observed declines could have been the 
result of either failure to comply with OSHA's rule, or overestimates 
of the effectiveness of OSHA's rule. OSHA believes that it was a 
combination of the two--there were both overestimates of effectiveness 
and failures to comply with the rule. Unfortunately, there are no 
studies that enable us to distinguish between the two phenomena. 
Further, OSHA believes that its estimates for this rule reflect lessons 
learned from the Seong and Mendeloff article. Still OSHA believes it is 
important to analyze the possibilities that the article might reflect 
OSHA's current practice and that it might reflect the possibility that 
OSHA's overestimates are solely due to noncompliance with the rule.
    In Appendix A, OSHA derives a set of factors for reducing OSHA's 
benefits estimates based on the assumption that Seong and Mendeloff's 
observations correctly state the standard's effectiveness rates. These 
factors represent a possible correction to OSHA's base estimates. The 
exact possible correction factors and their limitations are given in 
Appendix A to this FEA.
    Using these correction factors, OSHA found that the standard would 
prevent from 9 fatalities and 1,753 non-fatal injuries (=0.3*29 and 
0.3*5,842), with a value of $184 million, to 14 fatalities and 2,746 
non-fatal injuries (=0.47*29 and 0.47*5,842), with a value of $289 
million. If application of these correction factors to OSHA's 
estimation methodology better represent the true benefits of the rule, 
then this lower range of benefits would be more compliant with OMB 
Circular A-4, than the 29 fatalities and 5,842 non-fatal injures 
presented at the summary results elsewhere in this FEA.
    If lack of employer compliance is the only driver of the 
disparities between OSHA's estimates and actual declines in fatalities 
and if non-compliance is close to homogeneous across employers covered 
by this rule (in other words, if baseline slip, trip and fall injuries 
are not largely concentrated amongst bad actors who do not attempt to 
comply with OSHA standards), then the appropriate cost estimates to 
compare to the above benefits estimate would be $91 million (=0.3*$305 
million) to $143 million (=0.47*$305 million), and net benefits remain 
positive.
    To the extent that OSHA has not corrected any overestimation of 
effectiveness that is not the result of noncompliance, then costs could 
exceed benefits. As noted, OSHA is aware of the possible overestimation 
for reasons other than less than full compliance and has tried to 
correct this overestimation.
4. Break-Even Sensitivity Analysis
    This break-even sensitivity analysis determines how much cost and 
benefits would have to vary for the costs to equal benefits. According 
to the Agency's models for estimating costs and monetized benefits, the 
final standards generate considerable positive net benefits; that is, 
expected benefits are much greater than expected costs. Only 
significant errors in OSHA's analysis would bring true net benefits to, 
or below, zero. Therefore, in the first break-even sensitivity test in 
this analysis, which addresses cost, for net monetized benefits to fall 
to zero, for example, the Agency would have to underestimate the number 
of buildings with anchorages subject to inspection and certification by 
two-fold (from about 750,000 buildings to 1.5 million buildings), and 
would also have to underestimate the number of employees requiring 
training by four-fold (from 504,000 to 2.0 million). In this case, 
estimated compliance costs would rise to roughly $593 million annually, 
thereby approaching the value of estimated monetized benefits and 
reducing the net monetized benefits approximately to zero.
    In a second break-even sensitivity test in this analysis, which 
addresses benefits, OSHA examined how much its estimate of the final 
rule's aggregate benefits in terms of avoided fatalities and injuries 
would have to decline for the costs to equal the benefits, thereby 
eliminating the net monetized benefits. Net monetized benefits would 
decline to zero if, for example, the Agency overestimated fatalities 
prevented by the final standards by roughly 93 percent (if prevented 
fatalities were 15 rather than 29) and overestimated injuries prevented 
by the standards by roughly 108 percent (if prevented injuries were 
2,814 rather than 5,842).
    OSHA believes that a ten percent overestimate of fatalities is 
unlikely given the conservative (low) accident preventability rates 
projected for many provisions of the final standards. Further, OSHA 
notes, as discussed earlier, that some of the other benefits of the 
rule are non-quantifiable, such as the benefits resulting from making 
several provisions in this final standard compatible with provisions in 
the Agency's construction fall protection standards. OSHA believes that 
these benefits would increase the overall net benefits of the final 
rule.

[[Page 82936]]

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1995-2001. January 2009. Docket OSHA-2007-0072 (Ex. OSHA-2007-0072-
0049).
Occupational Safety and Health Administration (OSHA, 2006a). 
Accident Investigation Search, 2006. https://www.osha.gov/pls/imis/accidentsearch.html.
Occupational Safety and Health Administration (OSHA, 2006b). 
Standard Interpretations: 2/10/2006--``The use of ship's stairs 
instead of fixed stairs in general industry.'' https://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_id=25301.
Occupational Safety and Health Administration (OSHA, 2006c). 
Standard Interpretations: 2/10/2006--``Circumstances under which 
installation of fixed industrial stairs with a slope between 50 
degrees and 70 degrees from the horizontal would be considered a de 
minimis violation.'' https://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_id=25299.
Occupational Safety and Health Administration (OSHA, 2003a). 
Standard Interpretations: 05/05/2003--``Standards applicable to step 
bolts and manhole steps; load requirements for step bolts.'' https://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_id=24564 corrected 
4/4/2005.
Occupational Safety and Health Administration (OSHA, 2003b). 
``Walking and Working Surfaces; Personal Protective Equipment (Fall 
Protection Systems)''; Proposed Rule. Federal Register 68: 23528-
23568, May 2, 2003.
Occupational Safety and Health Administration (OSHA, 1996). ``Safety 
Standards for Scaffolds Used in the Construction Industry''; Final 
Rule. Federal Register 61: 46026-46126, August 30, 1996.
Occupational Safety and Health Administration (OSHA, 1994). 
``Background Document to the Regulatory Impact and Regulatory 
Flexibility Assessment for the PPE Standard.'' Office of Regulatory 
Analysis, March 15, 1994. Docket OSHA-S060-2006-0681 (Ex. OSHA-S060-
2006-0681-0333).
Occupational Safety and Health Administration (OSHA, 1993). ``Fixed 
Ladders Used on Outdoor Advertising Structures/Billboards in the 
Outdoor Advertising Industry.'' OSHA Instruction STD 1-1.14, January 
26, 1993. https://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=DIRECTIVES&p_id=1756.
Occupational Safety and Health Administration (OSHA, 1991a). 
December 5, 1989, letter from Mr. Thomas J. Shepich to Mr. Carl 
Pedersen regarding Descent Control Devices. Memorandum to Regional 
Administrators from Patricia K. Clark, Director, Directorate of 
Compliance Programs, March 12, 1991. Docket OSHA-S029-2006-0662 (Ex. 
OSHA-S029-2006-0662-0019).
Occupational Safety and Health Administration (OSHA, 1991b). ``Grant 
of Variance.'' Federal Register 56: 8801, March 1, 1991. https://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=FEDERAL_REGISTER&p_id=13148. Accessed 
by ERG on August 26, 2006.
Occupational Safety and Health Administration (OSHA, 1990a). 
``Preliminary Regulatory Impact and Regulatory Flexibility Analysis 
of Proposed Subparts D and I of 29 CFR Part 1910 Walking and Working 
Surfaces.'' Occupational Safety and Health Administration, Office of 
Regulatory Analysis, March 6, 1990. Docket OSHA-S041-2006-0666 (Ex. 
OSHA-S041-2006-0666-0689).
Occupational Safety and Health Administration (OSHA, 1990b). 
``Application of Gannett Outdoor Companies for a Variance Concerning 
Fixed Ladders.'' Federal Register 55: 26796-26797, June 29, 1990. 
https://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=FEDERAL_REGISTER&p_id=13085.
Occupational Safety and Health Administration (OSHA, 1981). Standard 
Interpretations: 12/02/1981--``Alternating tread type stair is 
approved as safe for use.'' https://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_id=18983.
Office of Management and Budget (OMB, 2007). North American Industry 
Classification System--2007. Executive Office of the President, 
2007.
Office of Management and Budget (OMB, 2005). Regulatory Reform of 
the U.S. Manufacturing Sector. March 2005. https://www.whitehouse.gov/sites/default/files/omb/assets/omb/inforeg/reports/manufacturing_initiative.pdf.
Office of Management and Budget (OMB, 2003). Regulatory Analysis. 
Circular A-4, September 17, 2003. https://www.whitehouse.gov/omb/circulars/a004/a-4.pdf.
Platts.com (Platts, 2007). 2007 UDI Directory of Electric Power 
Producers and Distributors, 115th Edition, Electrical World 
Directory. The McGraw-Hill Companies, 2007.
Seong, Si Kyung and John Mendeloff (Seong and Mendeloff, 2008). 
``Assessing the Accuracy of OSHA's Projections of the Benefits of 
New Safety Standards.'' American Journal of Industrial Medicine 
45(4): 313-328, 2004.
Small Business Administration (SBA, 2010). Table of Small Business 
Size Standards Matched to North American Industry Classification 
System Codes, 2010. https://www.sba.gov/content/table-small-business-size-standards.
Small Business Administration (SBA, 1996). Regulatory Flexibility 
Act of 1980 (Pub. L. 96-354), amended by the Small Business 
Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121).
U.S. Census Bureau (Census Bureau, 2002/2006). Statistics of U.S. 
Businesses, 2002/2006. https://www.census.gov/csd/susb/.
U.S. Environmental Protection Agency (U.S. EPA, 2010). Guidelines 
for Preparing Economic Analyses. EPA 240-R-10-001, December 2010. 
https://yosemite.epa.gov/ee/epa/eed.nsf/webpages/Guidelines.html.
U.S. Internal Revenue Service (IRS, 2013). 2010 Corporation Source 
Book, Publication 1053. https://www.irs.gov/uac/SOI-Tax-Stats-Corporation-Source-Book:-U.S.-Total-and-Sectors-Listing Accessed by 
OSHA on 4/19/2013.
U.S. Internal Revenue Service (IRS, 2009). Corporation Source Book. 
https://www.irs.gov/uac/SOI-Tax-Stats-Corporation-Source-Book:-U.S.-Total-and-Sectors-Listing. Accessed, 2009.
U.S. Internal Revenue Service (IRS, 2003). Corporation Source Book, 
2003. https://www.irs.gov/taxstats/bustaxstats/article/0,,id=149687,00.html.
Urban Institute/Brookings, 2012. ``Historical Average Federal Tax 
Rates for All Households,'' Tax Policy Center, October. Available at 
https://www.taxpolicycenter.org/taxfacts/displayafact.cfm?Docid=456.

[[Page 82938]]

Viscusi, Kip and Joseph Aldy (Viscusi and Aldy, 2003). ``The Value 
of a Statistical Life: A Critical Review of Market Estimates 
Throughout the World.'' The Journal of Risk and Uncertainty, 27-1 
(2003): 5-76.
Workers' Compensation Research Institute (WCRI, 1993). ``Income 
Replacement in California.'' WCRI Research Brief, Special Edition. 
Volume 9, number 4S, Cambridge, MA, December 1993. Also available in 
Docket OSHA-S777-2006-0938 (Ex. 0266).
Wright, Michael C. (Wright, 2003). Comments submitted to OSHA Docket 
S-029. Michael C. Wright, LJB, Inc. (Ex. OSHA-S029-2006-0662-0350).
Zeolla, Robert J. (Zeolla, 2003). Comments submitted to OSHA Docket 
S-029. Robert J. Zeolla, Jr., President, Sunset Window Cleaning 
Company. June 5, 2003 (Ex. OSHA-S029-2006-0662-0348).

Appendix A. Derivation of Prevention Factor Adjustments

    To derive possible quantitative adjustment factors from the 
Seong and Mendeloff study OSHA examined each of their case studies. 
In most cases, Seong and Mendeloff did not derive a quantitative 
difference between what happened and what OSHA estimated. Instead 
their goal was to qualitatively establish that overestimation was 
routine and in some cases extremely large. To derive quantitative 
estimates from this data requires making some assumptions. First, 
OSHA has assumed that all declines that actually occurred are 
attributable to a new standard. This will tend to overestimate the 
effectiveness of standards. Second, in some cases declines take 
place over time, and are significant over the long run but show 
little effect in the first year. If there is no decline in early 
years but a major one thereafter, OSHA has developed two estimates, 
one based on the first year and one based on what happened over 
time.
     Scaffolding for General Industry (61 FR 46026, August 
30, 1996): OSHA originally predicted that the scaffolding rule would 
reduce fatalities by 59 percent, whereas Seong and Mendeloff find an 
actual reduction of 21 percent, yielding a realized-to-projected 
effectiveness ratio of 0.36 (=0.21/0.59).
     Electrical Work Practices for General Industry (55 FR 
31984, August 6, 1990)--OSHA's predicted reduction was 41.4 percent. 
The actual decrease was negligible immediately upon finalization of 
the rule and up to 48 percent in the latter portion of the post-
implementation decade, thus yielding a range of ratios from 0 (=0/
0.414) if the immediate post-implementation result is interpreted as 
the amount attributable to the rule, or up to 0.61 (=0.25/0.414 
where 0.25 is the annualization over a ten-year period with a 7 
percent discount rate of a reduction pattern that rises linearly 
from 0 immediately upon finalization to 48 percent after a decade) 
if the longer-term reduction is interpreted as attributable to the 
rule.
     Process Safety Management (PSM) in General Industry (57 
FR 6356, February 24, 1992)--OSHA's predicted reduction was 40 
percent in the first five years and at least 80 percent in 
subsequent years, and the actual decrease was a reduction of around 
50 percent in the first year (though a substantial portion of this 
was probably attributable to the rule taking effect in a recession) 
and then no further decreases in subsequent years, yielding a ratio 
of 0.88 (=0.54/0.61 where 0.54 and 0.61 are annualizations over a 
ten-year period with a 7 percent discount rate of the reduction 
patterns just listed).
     Permit-Required Confined Spaces for General Industry 
(58 FR 4462, January 14, 1993)--OSHA's predicted reduction was 85 
percent, and the actual decrease is described by Seong and Mendeloff 
as probably at least 50 percent (though the discussion of relative 
results in greater- and lesser-affected states undermines the claim 
of the rule's effectiveness), yielding a ratio of 0.59 (=0.5/0.85).
     Electrical Power Generation (59 FR 4320, January 31, 
1994)--OSHA's predicted reduction was 68 percent, but actual deaths 
``dipped in 1993, the year the standard became effective, then went 
back to their pre-standard levels through 1997,'' and subsequently 
dropped by one-third or one-half, depending on the measure used. The 
resulting ratios range from approximately 0 (=0/0.68) if the 
immediate post-implementation result is interpreted as the amount 
attributable to the rule, up to 0.41 (=0.28/0.68 where 0.28 is the 
annualization over a ten-year period with a 7 percent discount rate 
of a reduction pattern of zero in the first four years and 50 
percent subsequently) if the longer-term reduction is interpreted as 
attributable to the rule.
     Logging Operations (59 FR 51672, October 12, 1994)--
OSHA's predicted reduction was 70 percent, but there is no 
indication that injuries decreased at all, yielding a ratio of 0 
(=0/0.7).
    The average of the six ratios ranges from 0.3, if the lower end 
of a range is used, to 0.47, if the higher end is used.

Appendix B. Fatal Accidents on Walking-Working Surfaces Preventable by 
the Final Standards (2006-2010 OSHA IMIS)

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BILLING CODE 4510-29-C

VI. Federalism

    OSHA has reviewed the final rule in accordance with Executive Order 
(E.O.) 13132 on Federalism (64 FR 43255 (8/10/1999)). This E.O. 
requires that Federal agencies, to the extent possible, refrain from 
limiting state policymaking discretion; consult with states prior to 
taking action that restricts state policy options; and take action that 
has federalism implications only where (1) there is ``constitutional 
and statutory authority'' for such action, and (2) the problem is of 
``national significance'' (E.O. 13132, Section 3(b)).
    Section 4 of E.O. 13132 allows Federal agencies to preempt state 
law, but only (1) where the Federal statute contains an express 
preemption provision or there is some other clear evidence that 
Congress intended preemption of state law, or (2) where the exercise of 
state authority conflicts with the exercise of Federal authority under 
the Federal statute. The E.O. further provides that Federal agencies 
must limit any such preemption of state law to the extent possible.
    The final rule complies with E.O. 13132. The FEA (Section V) and 
other information in the rulemaking record shows that worker exposure 
to walking-working surface hazards, particularly fall hazards, is very 
widespread. Workers throughout general industry are exposed to walking-
working surface hazards that can result in slips, trips and falls and 
other injuries and 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. As discussed in 
the Analysis of Risk section (Section II), workplace deaths due to 
slips, trips, and falls are second only to motor-vehicle accidents as 
the leading cause of worker fatalities.
    Congress enacted the Occupational Safety and Health Act of 1970 
(OSH Act) (29 U.S.C. 651 et seq.) ``to assure so far as possible every 
working man and woman in the nation safe and healthful working 
conditions'' (29 U.S.C. 651(b)). To achieve that objective, Congress 
expressly authorizes the Secretary of Labor to promulgate occupational 
safety and health standards applicable to businesses affecting 
interstate commerce (29 U.S.C. 655(a)).\164\
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    \164\ The OSH Act defines an ``occupational safety and health 
standard'' as ``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 safety 
and healthful employment and places of employment'' (29 U.S.C. 
652(8)).
---------------------------------------------------------------------------

    Section 18 of the OSH Act addresses the role of states in 
regulating workplace safety and health issues (29 U.S.C. 667). Section 
18(a) provides that the OSH Act does not prevent states from asserting 
jurisdiction under state law over a workplace safety and health issue 
with respect to which no Federal OSHA standard is in effect (29 U.S.C. 
667(a)). Where Federal OSHA has regulated an occupational safety and 
health issue, Section 18(b) gives states the option of developing and 
enforcing their own occupational safety and health standards through 
establishment of a State Plan. Section 18(b) specifies: ``Any State 
which, at any time, desires to assume responsibility for development 
and enforcement therein of occupational safety and health standards 
relating to any occupational safety or health issue with respect to 
which a Federal standard has been promulgated . . . shall submit a 
State plan for the development of such standards and their 
enforcement.''
    Section 18(c) provides that the Secretary of Labor will issue 
approval of a State Plan if the plan provides for the development and 
enforcement of standards for occupational safety and health that are at 
least as effective in providing safe and healthful workplaces as 
federal OSHA standards. (29 U.S.C. 667(c)). State Plan standards may 
have different or additional requirements from OSHA's standards.
    Currently, 27 U.S. states and territories, including New York, have 
OSHA-approved State Plans. However, the New York State Plan is limited 
in coverage; it is one of five state and local government only State 
Plans (29 CFR part 1956, subpart F). As such, the New York State Plan 
only covers state and local government workers and does not cover 
private sector employers or employees.
    Approximately 40 years before Congress passed the OSH Act, New 
York's legislature had enacted a statute addressing the ``[p]rotection 
of the public and of persons engaged at window cleaning and cleaning of 
exterior surfaces of buildings'' \165\ (N.Y. Lab. Law sec. 202). 
Section 202 requires that workers be provided with safe means for 
cleaning windows and exterior surfaces, and not be required or allowed 
to clean any window or exterior surface unless such means are in place 
for the ``prevention of accidents and for the protection of the public 
and of such persons engaged in such work'' (N.Y. Lab. Law sec. 202). 
The statute applies to all employers whose employees clean windows and 
exterior surfaces of covered buildings as well as to owners, lessees, 
agents, and managers of such buildings.
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    \165\ New York Lab. Law sec. 2(13) defines ``public building'' 
to include ``a factory building, an office building, a mercantile 
building, a hotel building, a theatre building, a warehouse 
building, an apartment building, a state or municipal building, a 
school, a college or university building, a building containing a 
place of public assembly maintained or leased for pecuniary gain, or 
any other building more than one story high except a dwelling house 
less than three stories high or occupied by less than three 
families'' (See also, N.Y. Comp. Codes R. & Regs. sec. 21.2(k)). 
Section 202 excepts the following public buildings from coverage: 
Multiple dwellings six or fewer stories in height; any building 
three or fewer stories in height in cities, towns or villages with a 
population of less than 40,000; and windows or exterior surfaces of 
any building the Industrial Board of Appeals may exempt from the 
requirement.
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    Section 202 also authorized the Industrial Board of Appeals 
(Industrial Board) to ``make rules to effectuate the purposes of the 
section.'' It specifies that those rules shall be applicable 
exclusively throughout the state, notwithstanding any other general or 
local law or regulation, and that the Commissioner of Labor shall have 
``exclusive authority'' to enforce sec. 202 and the rules issued 
thereunder (N.Y. Lab. Law sec. 202). Pursuant to sec. 202, the 
Industrial Board has issued regulations for the ``protection of persons 
engaged at window cleaning;'' however, they do not include specific 
provisions directed at protecting the public (N.Y. Comp. Codes R. & 
Regs. part 21). The regulations specify, among other things, that 
employees shall not be permitted to clean windows other than ``in 
accordance with an authorized means and methods'' (N.Y. Comp. Codes R. 
& Regs. sec. 21.3(b)(2) (emphasis added)). The following means and 
methods are the only ones the regulations authorize employers to use 
for cleaning windows:
     Working from safe surfaces;
     Working from window sills or ledges;
     Working from ladders;
     Working from boatswain's chairs;
     Working from scaffolds (12 N.Y. Comp. Codes & Regs. sec. 
21.4).
    The authorized means and methods do not include rope descent 
systems (RDS) \166\ or identify whether

[[Page 82976]]

``boatswain's chairs'' \167\ include RDSs. However, New York State 
Department of Labor (NYSDOL) advisory standards on practices and 
procedures for the use of boatswain's chairs expressly prohibit 
employers from using controlled descent devices (CDDs) \168\ for window 
cleaning (Advisory Standards for Construction, Operation and 
Maintenance of Suspended Scaffolds used for Window Cleaning and Light 
Maintenance, 101-1, 101-3 Design Components, sec. 9(b)(ii)).
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    \166\ The final rule defines a rope descent system as a 
suspension system that allows an employee to descend in a controlled 
manner and, as needed, stop at any point during the descent. A rope 
descent system usually consists of a roof anchorage, support rope, a 
descent device, carabiner(s) or shackle(s), and a chair (seatboard). 
A rope descent system also is called controlled descent equipment or 
apparatus. Rope descent systems do not include industrial rope 
access systems (final Sec.  1910.21(b)). The final rule requires 
that RDSs be used in conjunction with a separate personal fall 
arrest system to protect workers if a fall occurs (Sec.  
1910.27(b)(2)(vi)).
    \167\ Existing Sec.  1910.21(f)(2) defines a boatswain's chair 
as a ``seat supported slings attached to a suspended rope, designed 
to accommodate one workman in a sitting position.'' OSHA's 
construction cranes and derricks standard, revised in 2010, defines 
boatswain's chair as ``a single-point adjustable suspension scaffold 
consisting of a seat or sling (which may be incorporated into a full 
body harness) designed to support one employee in a sitting 
position'' (29 CFR 1926.1401). In the proposed rule OSHA 
characterized rope descent systems as ``a variation of a single-
point adjustable suspension scaffold'' (proposed Sec.  1910.21(b)). 
Several stakeholders said OSHA's characterization was not accurate 
because RDS and controlled descent devices only travel downward 
whereas single-point adjustable suspension scaffolds, such as 
boatswain's chairs, can go up and down. (Exs. 62; 168; 205). The 
final rule clarifies that RDS are not a boatswain's chair or a type 
of single-point adjustable suspension scaffold (final Sec.  
1910.21(b)).
    \168\ The definition of ``rope descent system'' (RDS) in final 
Sec.  1910.21(b) states that RDS also are called CDDs.
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    The final rule (Sec.  1910.27(b)), on the other hand, allows 
employers to use RDSs for activities performed at elevated heights, 
including window cleaning. Final Sec.  1910.27(b)(2)(i) limits the use 
of RDSs to elevations not exceeding 300 feet above grade; however, 
employers may use RDSs at greater heights if they can demonstrate that 
it is not feasible to access such heights by any method other than an 
RDS or other means pose a greater hazard than using an RDS.
    OSHA received many comments on the proposed rule. Many 
stakeholders, including window cleaning companies and window cleaners, 
supported allowing employers to use RDSs, including at heights above 
300 feet (e.g., Exs. 138; 147; 163; 184; 221; 242; 243; 329 (1/19/2011, 
pgs. 326-29). Also, many stakeholders, including many New York window 
cleaners, opposed the proposed rule (e.g., Exs. 131; 224; 311; 313; 
314; 316; 319; 329 (1/19/2011; pgs. 5-8, 17-19; 354). They urged that 
OSHA, like New York, prohibit the use of RDSs for window cleaning and 
indicated concerns about the potential preemptive effect of the final 
rule on New York's window cleaning laws and regulations.
    The question of whether a state law is preempted by Federal law is 
one of congressional intent (Gade v. National Solid Wastes Management, 
505 U.S. 88, 96 (1992)). In Gade,\169\ a five-justice majority said the 
language of Section 18 of the OSH Act indicates Congress' intent to 
preempt state occupational safety and health regulations relating to an 
issue that Federal OSHA already has regulated, unless the state has an 
OSHA-approved State Plan (Id., at 98).
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    \169\ Gade addressed the preemptive effect of OSHA's Hazardous 
Waste Operations and Emergency Response standard (29 CFR 1910.120) 
on Illinois laws establishing training and license requirements for 
hazardous waste equipment operators and workers. Illinois did not 
have an approved State Plan at the time.
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    A four-justice plurality determined the state law, absent an 
approved State Plan, is impliedly pre-empted'' (Id., at 98 (Congress' 
intent is ``implicitly contained in the [OSH Act's] structure and 
purpose'')). The plurality said language in Section 18(b) requiring 
that a state ``shall submit a State plan'' for approval if it desires 
to assume responsibility for developing and enforcing standards on an 
occupational safety and health issue that Federal OSHA has regulated, 
evidences Congress' intent to preempt where there is no approved plan:

    The unavoidable implication of [Section 18(b)] is that a State 
may not enforce its own occupational safety and health standards 
without obtaining the Secretary's approval (Id., at 99).

    The plurality noted that other parts of Section 18 also support 
preemption absent an approved plan (Id., at 100-102). Looking at 
Section 18 as a whole, the plurality was persuaded that Congress sought 
``to promote occupational safety and health while at the same time 
avoiding duplicative, and possibly counterproductive, regulation'' 
(Id., at 102). Therefore, they concluded that, absent an approved plan, 
any state regulation of an OSHA-regulated occupational safety or health 
issue is preempted as being in conflict with ``the full purposes and 
objectives'' of the OSH Act. The plurality also concluded that allowing 
a state without a -State Plan to supplement Federal OSHA standards, 
even non-conflicting laws,\170\ would be inconsistent with the 
``federal scheme of establishing uniform federal standards, on one 
hand, and encouraging States to assume full responsibility of their own 
OSH programs, on the other'' (Id., at 103).
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    \170\ OSHA notes that New York's laws and regulations and final 
Sec.  1910.27 are not non-conflicting regulations. Rather, it is ``a 
physical impossibility'' for employers and employees to comply with 
both the final rule, which allows the use of RDSs, and New York's 
regulations, which prohibit their use (Gade, 505 U.S. at 98). If 
employers use RDSs in accordance with final Sec.  1910.27(b) to 
clean windows up to 300 feet above grade, they violate New York's 
regulations.
---------------------------------------------------------------------------

    The Court also reached the same conclusion regarding the preemptive 
effect of a law that regulates public as well as workplace safety and 
health (i.e., a ``dual impact'' law). The five-justice majority said 
that any state law ``designed to promote safety and health in the 
workplace falls neatly within the Act's definition of an `occupational 
safety and health standard' '' (Id., at 105). According to the Court, 
the fact such a state law also may have a non-occupational purpose or 
impact ``does not render it any less of an occupational safety and 
health standard for purposes of preemption analysis'':

    [I]t would defeat the purpose of section 18 if a state could 
enact measures stricter than OSHA's and largely accomplished through 
regulation of worker safety and health simply by asserting a non-
occupational purpose for the legislation' (Id., at 106, citing 
National Solid Wastes Management Assn. v. Killian, 918 F.2d 671, 679 
(7th Cir. 1990)).

    Therefore, the Court said it must look at the ``effects of the 
law'' as well legislature's professed purpose (Id., at 105). Applying 
this test, the Court determined that, in the absence of an approved 
state plan, the OSH Act preempts all state law that ``constitutes, in a 
direct, clear and substantial way, regulation of worker health and 
safety'' (Id., at 107).\171\
---------------------------------------------------------------------------

    \171\ OSHA notes that the Court in Gade recognized an exception 
to the OSH Act's preemption of state regulations for ``laws of 
general applicability'' (Gade, 505 U.S. 107). Laws of general 
applicability regulate the conduct of workers ``simply as members of 
the general public'' (Id.). Like the Court, OSHA has consistently 
taken the position the OSH Act does not preempt state laws 
promulgated primarily for the purpose of protecting public safety, 
such as building, electrical and fire codes (CSP 01-03-004, The 
Effect of Preemption on the State Agencies without 18(b) Plans (3/
13/1981)).
---------------------------------------------------------------------------

    Based on the following, OSHA finds that sec. 202 ``directly, 
substantially, and specifically regulates occupational safety and 
health.'' Although the title of sec. 202 specifies that its purpose is 
``[p]rotection of the public and of persons engaged at window cleaning 
and cleaning of exterior surfaces of buildings,'' the language in sec. 
202 clearly indicates it is promulgated primarily for the protection of 
workers rather than the public. For example, Section 202 directs 
employers and contractors to ``provide safe means'' for workers to 
clean windows and building surfaces and ``require his employees . . . 
to use the equipment and safety devices'' while cleaning windows and 
building surfaces, but does not contain any requirements directed at 
members of the public. As such, protection of the

[[Page 82977]]

public appears to be a residual benefit of sec. 202's requirements to 
protect workers. The legislative history of sec. 202 also reinforces 
that it is primarily ``directed at workplace safety'' (Gade, at 107). 
Section 202, as originally enacted in 1930, only applied to ``persons 
engaged at window cleaning.'' It wasn't until 1970 that the legislature 
expanded the scope of sec. 202 to cover ``protection of the public.''
    The title of the Industrial Board regulations that implement sec. 
202, ``Protection of persons employed at window cleaning--structural 
requirements, equipment and procedure,'' also support that sec. 202 is 
primarily directed to protecting workers (N.Y. Comp. Codes R. & Regs. 
Part 21). The regulations' findings of fact reinforce this:

    The board finds that the trade, occupation or process of 
cleaning the windows of public buildings involves such elements of 
danger to the lives, health or safety of persons employed therein as 
to require special regulations for the protection of such persons, 
in that such trade, occupation or process necessarily involves the 
constant hazard of falling from dangerous heights and creates a 
substantial risk of serious injury to such persons and others (12 
N.Y. Comp. Codes & Regs. 21.0).

    In addition to the ``authorized means and methods'' employers must 
use to clean windows, the regulations as well as the advisory standards 
also establish work practice and equipment requirements employers and 
workers must follow. Like OSHA standards, New York's laws and 
regulations establish the means and methods ``reasonably necessary or 
appropriate to provide safety and health employment and places of 
employment'' for workers who clean windows and exterior surfaces of 
public buildings.
    Looking at sec. 202 and its implementing regulations and advisory 
standards as a whole, the substantial effect they have on workplace 
safety and health shows they are occupational safety and health 
standards within the meaning of the OSH Act. Since New York's laws 
regulate the same occupational safety and health issue as the final 
rule, pursuant to Gade, they can be saved from preemption only if New 
York has an OSHA-approved State Plan. As mentioned, New York has an 
approved State Plan, but it only covers state and local government 
employees. New York has not submitted a State Plan covering private 
employees for approval by the Secretary of Labor. Absent such a plan, 
New York's laws and regulations, to the extent that they cover private 
employees, are preempted as being in conflict with ``the full purposes 
and objectives'' of the OSH Act (Gade, at 98). That said, New York's 
laws remain in effect for state and local government employees, and, to 
the extent that New York's laws are at least as effective as OSHA's 
standard, state and local government employees are prohibited from 
using RDS when they clean windows.
    Finally, OSHA notes Congress saved two areas from federal 
preemption. In addition to section 18(a), discussed above, Section 
4(b)(4) of the OSH Act evidences Congress' clear intent to preserve 
state laws that that create liability for personal injury (Gade, 505 
U.S. at 96). Section 4(b)(4) states: ``Nothing in this Act shall be 
construed to supersede or in any manner affect any workmen's 
compensation law or to enlarge or diminish of affect in any other 
manner, the common law or statutory rights, duties or liabilities of 
employers and employees under any law with respect to injuries, 
diseases, or death of employees arising out of, or in the course of, 
employment'' (29 U.S.C. 653(b)(4)).
    Section 202 creates a private right of action for violations of the 
window cleaning regulations (N.Y. Comp. Codes R. & Regs. Part 21), 
which the New York courts have consistently upheld (See e.g., Pollard 
v. Trivia Bldg. Corp., 291 N.Y. 19 (1943); Bauer v. Female Academy of 
the Sacred Heart (767 N.E.2d 1136 (N.Y. 2002)).
    Since Gade, courts routinely have upheld state tort laws against 
preemption challenges so long as the state laws do not create conflict 
with an OSHA standard (See Lindsey v. Caterpillar, 480 F.3d. 202,212 
(3d. Cir. 2007) (``We join with those courts whose holdings have formed 
a `solid consensus that [Section 4(b)(4)] operates to save state tort 
rules from preemption' '')). Explaining the rationale behind Section 
4(b)(4)'s savings clause, the courts noted that the OSH Act is 
primarily preventive in nature and does not provide private remedies 
for injuries (Irwin v. St. Joseph's Intercommunity Hospital, 665 
N.Y.S.2d 773, 778-79 (App. Div. 1997) (citing cases)).
    Although Section 4(b)(4) does not protect NYSDOL's ability to 
enforce Sec.  202 and the regulations implementing it, OSHA believes 
Sec.  202 survives preemption to the extent that it provides workers 
with a private right of action for damages for injuries.

VII. State-Plan Requirements

    When Federal OSHA promulgates a new standard or more stringent 
amendment to an existing standard, the 27 States and U.S. Territories 
with their own OSHA-approved occupational safety and health plans must:
     Amend their standards to reflect the new standard or 
amendment; or
     Show OSHA why such action is unnecessary; for example, 
because an existing State standard covering this area is ``at least as 
effective'' as the new Federal standard or amendment (29 CFR 
1953.5(a)).
    The State standard must be at least as effective as the final 
Federal rule, must be applicable to both the private and public (State 
and local government employees) sectors, and must be completed within 6 
months of the promulgation date of the final Federal rule. When OSHA 
promulgates a new standard or amendment that does not impose additional 
or more stringent requirements than an existing standard, State-Plan 
States are not required to amend their standards, although the Agency 
may encourage them to do so.
    The 21 States and one U.S. Territory with OSHA-approved 
occupational safety and health plans covering private employers and 
State and local government employees are: Alaska, Arizona, California, 
Hawaii, Indiana, Iowa, Kentucky, Maryland, Michigan, Minnesota, Nevada, 
New Mexico, North Carolina, Oregon, Puerto Rico, South Carolina, 
Tennessee, Utah, Vermont, Virginia, Washington, and Wyoming. In 
addition, four States and one U.S. Territory have OSHA-approved State 
Plans that apply to State and local government employees only: 
Connecticut, Illinois, New Jersey, New York, and the Virgin Islands.
    This final rule results in more stringent requirements for the work 
it covers. Therefore, States and Territories with OSHA-approved State 
Plans must adopt comparable amendments to their standards within 6 
months of the date of publication of this final rule in the Federal 
Register unless they demonstrate that such amendments are not necessary 
because their existing standards are at least as effective in 
protecting workers as this final rule. Each State Plan's existing 
requirements will continue to be in effect until it adopts the required 
revisions.

VIII. Unfunded Mandates Reform Act

    OSHA reviewed this final rule according to the Unfunded Mandates 
Reform Act of 1995 (``UMRA``; 2 U.S.C. 1501 et seq.) and Executive 
Order 13132 (64 FR 43255 (Aug. 10, 1999)). As discussed in the Final 
Economic Analysis and Final Regulatory Flexibility Screening Analysis, 
OSHA estimates that compliance with this final rule would require 
general industry private-sector employers to

[[Page 82978]]

expend about $246.5 million each year. However, while this final rule 
establishes a federal mandate in the private sector, it is not a 
significant regulatory action within the meaning of Section 202 of the 
UMRA (2 U.S.C. 1532).
    OSHA standards do not apply to State or local governments except in 
States that have elected, under a voluntary agreement, to adopt a State 
Plan that OSHA has approved. State Plan States enforce compliance with 
their State standards on public sector entities, and these agreements 
specify that these State standards must be equivalent to OSHA 
standards. Thus, although OSHA has included compliance costs for the 
affected public-sector entities in its analysis of the expected impacts 
associated with the final rule, the final rule does not involve any 
unfunded mandates being imposed on any State or local government 
entity. Consequently, this final rule does not meet the definition of a 
``Federal intergovernmental mandate'' (see Sec. 421(5) of the UMRA (2 
U.S.C. 658(5))). Therefore, for the purposes of the UMRA, the Agency 
certifies that this final rule does not mandate that State, local, and 
tribal governments adopt new, unfunded regulatory obligations.

IX. Consultation and Coordination With Indian Tribal Governments

    OSHA reviewed this final rule in accordance with Executive Order 
13175, (65 FR 67249 (Nov. 9, 2000)) and determined that it does not 
have ``tribal implications'' as defined in that order. The final rule 
does not have substantial direct effects on one or more Indian tribes, 
on the relationship between the Federal government and Indian tribes, 
or on the distribution of power and responsibilities between the 
Federal government and Indian tribes.

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

    The final general industry Walking-Working Surfaces (29 CFR part 
1910, subpart D) and Personal Protective Equipment (Fall Protection 
PPE) (29 CFR part 1910, subpart I) standards, like the proposed rule, 
contain collection of information (paperwork) requirements that are 
subject to review by the Office of Management and Budget (OMB) under 
the Paperwork Reduction Act of 1995 (PRA-95) (44 U.S.C. 3501 et seq.), 
and OMB regulations (5 CFR part 1320). The PRA-95 defines ``collection 
of information'' to mean, ``the obtaining, causing to be obtained, 
soliciting, or requiring the disclosure to third parties or the public, 
of facts or opinions by or for an agency, regardless of form or 
format'' (44 U.S.C. 3502(3)(A)).
    Under PRA-95, a Federal agency cannot conduct or sponsor a 
collection of information unless OMB approves it and the collection of 
information displays a currently valid OMB control number. In addition, 
notwithstanding any other provision of law, no employer shall be 
subject to penalty for failing to comply with a collection of 
information that does not display a currently valid OMB control number.
    OSHA has OMB approval for the collection of information 
requirements contained in both existing subparts D and I. These 
Information Collection Requests (ICRs) (paperwork burden hour and cost 
analysis), both of which expire August 31, 2019, are titled:
     Standard on Walking-Working Surfaces (29 CFR part 1910, 
subpart D), OMB control number 1218-0199; and
     Personal Protective Equipment (PPE) for General Industry 
(29 CFR part 1910, subpart I), OMB control number 1218-0205.
    In accordance with PRA-95 (44 U.S.C. 3506(c)(2)), OSHA included 
revised ICRs for subparts D and I in the proposed rule and solicited 
public comment (75 FR 28862, 29129 (5/24/2010)). OSHA also submitted 
the revised ICRs to OMB for review as PRA-95 requires (44 U.S.C. 
3507(d)). On July 26, 2010, OMB issued a Notice of Action (NOA) for the 
revised subpart D ICR, filing comment on the request that did not 
approve the request at that time and stating: ``Terms of the previous 
clearance remain in effect.''
    On October 11, 2010, OMB issued a NOA for the revised subpart I 
ICR, also filing comment on the proposed revisions to the ICR and 
stating: ``OMB is not approving the collection of information in the 
proposed rule at this time. Prior to publication of the final rule, the 
agency should provide a summary of all comments related to the 
information collection requirements contained in the proposed rule and 
a description of any changes made in response to these comments.'' OSHA 
did not receive any public comments on the burden estimates in the 
proposed revised ICRs. However, the Agency received a number of 
comments on the proposed rule, discussed earlier in this preamble, that 
include information relevant to the paperwork analysis. OSHA addresses 
these comments in detail in the final ICR for subparts D and I.
    Concurrent with publication of this final rule, the Department is 
submitting ICRs to revise the authority for the information collections 
under the Paperwork Reduction Act. The Department will publish an 
additional Federal Register notice to announce the final OMB 
disposition on those requests.
    Title: Standard on Walking--Working Surfaces (29 CFR part 1910, 
subpart D).
    Type of Review: Revision of a currently approved collection.
    OMB Control Number: 1218-0199.
    Affected Public: Business or other for-profits; Federal Government; 
State, Local, or Tribal Government.
    Total Estimated Number of Respondents: 750,000.
    Total Estimated Number of Responses: 1,032,860.
    Total Estimated Annual Burden Hours: 498,803.
    Total Estimated Annual Cost Burden (Capital and start-up cost 
component): $54,697,500.
    Description of Collections of Information:
    Final subpart D contains several new collection of information 
requirements and removes three existing collection of information 
requirements from this ICR.
    Final Sec.  1910.22--General requirements. Final Sec.  1910.22(b), 
like the proposal, requires that employers ensure each walking-working 
surface can support the maximum intended load for that surface. The 
existing rule requires that building officials mark on plates the loads 
they have approved and securely affix them in a conspicuous place in 
the space to which they relate. The existing rule also requires that 
the plates not be removed or defaced and be replaced, if they are.
    This final rule replaces the specifications in the existing rule 
(Sec.  1910.22(d)(1)) with performance-based language and, in so doing, 
deletes the collection of information requirement. In the preamble of 
the proposed and final rules, OSHA explained that the specification 
requirement in the existing rule was not necessary for two reasons: (1) 
Load-limit information is available in building plans and from other 
sources, and (2) maximum loads are taken into consideration when 
surfaces are designed.
    Under the final rule, employers can obtain information about 
current walking-working surfaces from plates posted in accordance with 
the existing rule. For new buildings, structures and walking-working 
surfaces, employers can obtain information on load limits in various 
ways, such as from building plans, local codes, third-party 
certification, or self-evaluations.
    Final Sec.  1910.23--Ladders. Final Sec.  1910.23 (b)(10) requires 
that any ladder with structural or other defects immediately be tagged 
``Dangerous: Do

[[Page 82979]]

Not Use,'' or with ``similar language in accordance with Sec.  
1910.145, and removed from service until it is repaired or replaced.'' 
Section 1910.145 specifies that, depending on the nature of the hazard, 
tags must contain a ``signal'' word and ``major message'' (Sec.  
1910.145(f)(4)). The ``signal'' word must be ``Danger,'' ``Caution,'' 
``Biological Hazard,'' or ``BIOHAZARD'' or the tag may use the 
biological hazard symbol (Sec.  1910.145(f)(4)(i)(A)). The major 
message, which can be in written text, pictographs or both, must 
indicate ``the specific hazardous condition or instruction to be 
communicated to the employee'' (Sec.  1910.145(f)(4)(i)(B) and 
(f)(4)(iii)).
    The existing rule also requires tagging defective ladders, but the 
requirement only applies to portable wood and metal ladders (Sec. Sec.  
1910.25(d)(1)(x) and 1910.26(c)(2)(vii), respectively). In addition, 
the subpart D ICR only takes paperwork burden hours and costs for 
portable metal ladders, not wood ones. This is because the existing 
standard for wood ladders provides the specific language that employers 
must use for the tags on defective ladders (``Dangerous: Do Not Use''). 
When OSHA supplies the exact language that employers must provide to 
employees, the Agency is not required to take paperwork burdens because 
the requirement does not come within the definition of ``collection of 
information'' under PRA-95 (5 CFR 1320.3(c)(2)).
    In the proposed rule, the Agency proposed removing the word 
``Dangerous'' from the existing tag language and requiring that tags 
state ``Do Not Use'' or similar language that complies with Sec.  
1910.145. After further analysis, however, OSHA concluded that 
retaining the signal word is necessary to get workers' attention in 
order 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).
    OSHA notes that the final rule applies the tagging requirement to 
all ladders final Sec.  1910.23 covers, which includes fixed ladders, 
mobile ladder stands and mobile ladder stand platforms in addition to 
portable wood and metal ladders. As a result, the final rule expands 
the collection of information requirement.
    Section 1910.27--Scaffolds and rope descent systems. Final Sec.  
1910.27, like the proposed rule, establishes requirements for scaffolds 
and rope descent systems (RDS) used in general industry. The 
requirements are designed to protect workers whose duties require them 
to work at elevations, whether on scaffolds or RDS.
    Final paragraph Sec.  1910.27(a), like the proposed rule, replaces 
the existing general industry scaffold standards (Sec. Sec.  1910.28 
and 1910.29) with the requirement that employers ensure scaffolds used 
meet the requirements in the construction scaffolds standards (29 CFR 
part 1926, subpart L). As the record indicated, many general industry 
employers use scaffolds to perform both general industry and 
construction activities. OSHA believes that allowing employers to 
comply with the same scaffold requirements regardless of whether they 
are performing general industry or construction activities will 
increase understanding of and compliance with the final rule, and thus, 
provide greater protection for workers.
    By replacing the existing general industry requirements, the final 
rule deletes the collection of information requirement in existing 
Sec.  1910.28(e)(3). That provision requires that employers ensure 
outrigger scaffolds are constructed and erected in accordance with 
table D-16, if they are not designed by a licensed professional 
engineer, and keep a copy of the detailed drawings and specifications 
at the job.
    Final paragraph Sec.  1910.27(b), like the proposal, adds new 
requirements that addresses the use of RDS. Final paragraphs (b)(1)(i) 
and (ii) contain a new collection of information requirement. Final 
paragraph (b)(1) requires that, before any RDS is used, the building 
owner must inform the employer in writing (final paragraph (b)(1)(i)), 
and the employer must obtain written information from the building 
owner (final paragraph (b)(1)(ii)), that the building owner has 
identified, tested, certified, and maintained each anchorage to ensure 
it is capable of supporting at least 5,000 pounds in any direction for 
each worker attached. The final rule specifies that the written 
information the building owner provides must be based on:
     An annual inspection; and
     A certification of each anchorage, as necessary, and at 
least every 10 years.
    The requirement that anchorages be certified ``as necessary'' means 
the building owner must have a qualified person recertify any anchorage 
when the owner knows or has reason to believe recertification is needed 
(final paragraph (b)(1)(i)). The final rule gives building owners 
flexibility in determining when anchorage recertification is necessary. 
As discussed in Section IV, factors or conditions indicating that 
recertification may be needed include, but are not limited to, an 
accident involving the use of an RDS; a report of damage to an 
anchorage, major alteration to the building; exposure of the anchorage 
to destructive industrial substances; and location of the building in 
an area that might accelerate corrosion, such as areas having exposure 
to high rainfall, high humidity, or sea air.
    Final paragraph (b)(1)(ii) requires that employers keep the written 
information obtained from the building owner for the duration of the 
job.
    OSHA believes the requirement that building owners provide written 
information on anchorages to employers is essential to ensure that 
employers know the anchorages are safe for their workers who use RDS. 
In addition, the requirement that employers retain the written 
information throughout the job is important to keep workers informed 
about which anchorages are safe to use. This is particularly true if 
the job involves multiple workshifts or work crews, the employer adds 
new workers during the job, or there are changes in on-site 
supervisors.
    Final Sec.  1910.28--Duty to have fall protection and falling 
object protection. Final Sec.  1910.28 requires that employers provide 
protection for each employee exposed to fall and falling object 
hazards.
    Final paragraph (b)(1)(ii) is a new requirement. The provision 
requires that when the employer can demonstrate that it is not feasible 
or creates a greater hazard to use a guardrail, safety net, or personal 
fall protection systems on residential roofs, the employer must develop 
and implement a fall protection plan that meets the requirements of 29 
CFR 1926.502(k). This requirement was added to the final rule based on 
public comment to allow employers greater flexibility in using PPE on 
residential roofs and to be more consistent with OSHA's construction's 
fall protection standard.
    Final paragraph (b)(8)(iii), like the proposal, is a new 
requirement that addresses fall hazards associated with repair, 
service, and assembly pits less than 10 feet deep. The provision 
requires that employers post readily-visible warning signs in pit areas 
that state ``Caution--Open Pit'' and also comply with the requirements 
in Sec.  1910.145.
    The proposed standard would have required that employers post 
caution signs stating ``Caution--Open Floor'' or a ``similar legend.'' 
In the revised ICR published in the proposed rule, OSHA said proposed 
Sec.  1910.28(b)(8)(iii) contains a new collection of information 
requirement and took a paperwork burden. The final rule, however, does

[[Page 82980]]

not permit employers to post signs that contain a ``similar legend;'' 
it requires that employers must post signs that state ``Caution--Open 
Floor.'' Therefore, OSHA is not taking paperwork burden hours or costs 
because, as mentioned, information supplied by the Federal government 
to the recipient for the purpose of disclosure to the public is not a 
collection of information under PRA-95.
    Title: Personal Protective Equipment (PPE) for General Industry (29 
CFR part 1910, subpart I).
    Type of Review: Revision of a currently approved collection.
    OMB Control Number: 1218-0205.
    Affected Public: Business or other for-profits; Federal Government; 
State, Local, or Tribal Government.
    Total Estimated Number of Respondents: 3,500,000.
    Total Estimated Number of Responses: 2,220,281.
    Total Estimated Annual Burden Hours: 3,745,218.
    Total Estimated Annual Cost Burden (Capital and start-up cost 
component): $0.
    Description of Collections of Information:
    Final Sec.  1910.140, like the proposed rule, adds a new section to 
subpart I that addresses personal fall protection systems, such as 
personal fall arrest systems, travel restraint systems and positioning 
systems. Although final Sec.  1910.140 does not contain any collection 
of information requirements, employers whose workers use a personal 
fall protection system also must comply with Sec.  1910.132. Section 
1910.132(d)(2) requires employers certify in writing they have 
performed the required workplace hazard assessment (Sec.  
1910.132(d)(1)) to determine whether fall or falling-object hazards are 
present, or likely to be present, that make the use of personal fall 
protection systems necessary. The written certification must identify 
the date and workplace assessed and the person who is certifying that 
the hazard assessment was performed. In addition, the written document 
must identify that it is a workplace hazard assessment certification. 
The written certification requirement is a collection of information 
under PRA-95.
    At the time OSHA published the proposed rule, general industry 
employers also were required to comply with Sec.  1910.132(f)(4). That 
provision required employers to certify in writing that each worker has 
received and understood the PPE training. The standard also required 
that the written certification specify name of each employee trained 
plus the date and content of the training. In the revised ICR that OSHA 
published in the proposed rule, the Agency said Sec.  1910.132(f)(4) 
imposes a new information collection requirement for personal fall 
protection systems and took a paperwork burden. Thereafter, as part of 
the Standards Improvement Project--Phase III final rule, OSHA deleted 
Sec.  1910.132(f)(4) (76 FR 33590, 6/8/3011). Therefore, OSHA has 
removed the information collection requirement from the final ICR for 
Personal Protective Equipment (PPE) for General Industry.

XI. Dates

    Effective Date. The final rule generally becomes effective and 
enforceable 60 days after publication of this document in the Federal 
Register, which is January 17, 2017. Information collections subject to 
OMB approval will take effect on the date OMB approves the Department's 
request to revise the information collection authority under PRA-95 or 
the date the rule otherwise becomes effective and the compliance date 
has arrived, whichever date is later. The Department will publish a 
document in the Federal Register to announce OMB's disposition of the 
Department's requests to revise the Paperwork Reduction Act authority 
for the information collections.
    Compliance Dates. Most of the requirements in the final rule are 
existing provisions that OSHA is retaining and updating. OSHA believes 
that employers already are in compliance with those provisions and, 
therefore, it is not necessary to give additional time to comply with 
them.
    However, for some of the new requirements in the final rule, OSHA 
is providing employers with additional time to come into compliance. 
The extended compliance dates give employers time to get familiar with 
the new requirements, evaluate changes they may need to make, purchase 
equipment necessary to comply with the final rule, and develop and 
present required training. In addition, the extended compliance dates 
allows employers to upgrade their fall protection systems as part of 
the normal ``business cycle'' or ``useful life'' of equipment (i.e., 
cage, well, fixed ladder), which reduces compliance costs.
    The following table specifies the amount of additional time OSHA is 
giving employers to certify anchorages, equip fixed ladders with fall 
protection, and train workers:
[GRAPHIC] [TIFF OMITTED] TR18NO16.345


[[Page 82981]]


    For additional information about these compliance deadlines, see 
discussion of Sec. Sec.  1910.27(b)(1), 1910.28(b)(9), and 1910.30 in 
Section IV.

List of Subjects in 29 CFR Part 1910

    Falls, Fall arrest, Fall protection, Fall restraint, Guardrails, 
Incorporation by reference, Ladders, Occupational safety and health, 
Scaffolds, Stairs, Walking-working surfaces.

Authority and Signature

    This document was prepared under the direction of David Michaels, 
Assistant Secretary of Labor for Occupational Safety and Health. This 
action is taken pursuant to sections 29 U.S.C. 653, 655, 657; Secretary 
of Labor's Order No. 1-2012 (77 FR 3912 (1/25/2012)); and 29 CFR part 
1911.

    Signed at Washington, DC, on October 4, 2016.
David Michaels,
Assistant Secretary of Labor for Occupational Safety and Health.

Final Regulatory Text

    For the reasons set forth in the preamble, OSHA amends part 1910 of 
title 29 of the Code of Federal Regulations as follows:

PART 1910--OCCUPATIONAL SAFETY AND HEALTH STANDARDS

0
1. The authority citation for part 1910 continues to read as follows:

    Authority:  29 U.S.C. 653, 655, 657; Secretary of Labor's Order 
Numbers 12-71 (36 FR 8754), 8-76 (41 FR 25059), 9-83 (48 FR 35736), 
1-90 (55 FR 9033), 6-96 (62 FR 111), 3-2000 (65 FR 50017), 5-2002 
(67 FR 65008), 5-2007 (72 FR 31159), 4-2010 (75 FR 55355), or 1-2012 
(77 FR 3912), as applicable.
    Sections 1910.6, 1910.7, 1910.8 and 1910.9 also issued under 29 
CFR 1911. Section 1910.7(f) also issued under 31 U.S.C. 9701, 29 
U.S.C. 9a, 5 U.S.C. 553; Public Law 106-113 (113 Stat. 1501A-222); 
Pub. L. 11-8 and 111-317; and OMB Circular A-25 (dated July 8, 1993) 
(58 FR 38142, July 15, 1993).


Sec.  1910.6   [Amended]

0
2. Amend Sec.  1910.6 by:
0
a. In paragraph (e)(9), removing ``1910.68(b)(12)'' and 
``1910.179(c)(2);``; and
0
b. Removing and reserving paragraphs (h)(8) and (j)(1).

0
3. Revise subpart D to read as follows:

Subpart D--Walking-Working Surfaces

Sec.
1910.21 Scope and definitions.
1910.22 General requirements.
1910.23 Ladders.
1910.24 Step bolts and manhole steps.
1910.25 Stairways.
1910.26 Dockboards.
1910.27 Scaffolds and rope descent systems.
1910.28 Duty to have fall protection and falling object protection.
1910.29 Fall protection systems and falling object protection--
criteria and practices.
1910.30 Training requirements.

    Authority: 29 U.S.C. 653, 655, and 657; Secretary of Labor's 
Order No. 12-71 (36 FR 8754), 8-76 (41 FR 25059), 9-83 (48 FR 
35736), 1-90 (55 FR 9033), and 1-2012 (77 FR 3912), as applicable; 
and 29 CFR part 1911.


Sec.  1910.21   Scope and definitions.

    (a) Scope. This subpart applies to all general industry workplaces. 
It covers all walking-working surfaces unless specifically excluded by 
an individual section of this subpart.
    (b) Definitions. The following definitions apply in this subpart:
    Alternating tread-type stair means a type of stairway consisting of 
a series of treads that usually are attached to a center support in an 
alternating manner such that an employee typically does not have both 
feet on the same level while using the stairway.
    Anchorage means a secure point of attachment for equipment such as 
lifelines, lanyards, deceleration devices, and rope descent systems.
    Authorized means an employee who the employer assigns to perform a 
specific type of duty, or allows in a specific location or area.
    Cage means an enclosure mounted on the side rails of a fixed ladder 
or fastened to a structure behind the fixed ladder that is designed to 
surround the climbing space of the ladder. A cage also is called a 
``cage guard'' or ``basket guard.''
    Carrier means 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.
    Combination ladder means a portable ladder that can be used as a 
stepladder, extension ladder, trestle ladder, or stairway ladder. The 
components of a combination ladder also may be used separately as a 
single ladder.
    Dangerous equipment means 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 the equipment.
    Designated area means a distinct portion of a walking-working 
surface delineated by a warning line in which employees may perform 
work without additional fall protection.
    Dockboard means a portable or fixed device that spans a gap or 
compensates for a difference in elevation between a loading platform 
and a transport vehicle. Dockboards include, but are not limited to, 
bridge plates, dock plates, and dock levelers.
    Equivalent means alternative designs, equipment, materials, or 
methods, that the employer can demonstrate will provide an equal or 
greater degree of safety for employees compared to the designs, 
equipment, materials, or methods specified in this subpart.
    Extension ladder means a non-self-supporting portable ladder that 
is adjustable in length.
    Failure means a load refusal, breakage, or separation of component 
parts. A load refusal is the point at which the ultimate strength of a 
component or object is exceeded.
    Fall hazard means any condition on a walking-working surface that 
exposes an employee to a risk of harm from a fall on the same level or 
to a lower level.
    Fall protection means any equipment, device, or system that 
prevents an employee from falling from an elevation or mitigates the 
effect of such a fall.
    Fixed ladder means 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.
    Grab bar means an individual horizontal or vertical handhold 
installed to provide access above the height of the ladder.
    Guardrail system means a barrier erected along an unprotected or 
exposed side, edge, or other area of a walking-working surface to 
prevent employees from falling to a lower level.
    Handrail means a rail used to provide employees with a handhold for 
support.
    Hoist area means any elevated access opening to a walking-working 
surface through which equipment or materials are loaded or received.
    Hole means 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.
    Individual-rung ladder means a ladder that has rungs individually 
attached to a building or structure. An individual-rung ladder does not 
include manhole steps.
    Ladder means a device with rungs, steps, or cleats used to gain 
access to a different elevation.
    Ladder safety system means a system designed to eliminate or reduce 
the possibility of falling from a ladder. A ladder safety system 
usually consists of a carrier, safety sleeve, lanyard, connectors, and 
body harness. Cages and wells are not ladder safety systems.

[[Page 82982]]

    Low-slope roof means a roof that has a slope less than or equal to 
a ratio of 4 in 12 (vertical to horizontal).
    Lower level means a surface or area to which an employee could 
fall. Such surfaces or areas include, but are not limited to, ground 
levels, floors, roofs, ramps, runways, excavations, pits, tanks, 
materials, water, equipment, and similar surfaces and structures, or 
portions thereof.
    Manhole steps means steps that are individually attached to, or set 
into, the wall of a manhole structure.
    Maximum intended load means 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.
    Mobile means manually propelled or moveable.
    Mobile ladder stand (ladder stand) means a mobile, fixed-height, 
self-supporting ladder that usually consists of wheels or casters on a 
rigid base and steps leading to a top step. A mobile ladder stand also 
may have handrails and is designed for use by one employee at a time.
    Mobile ladder stand platform means a mobile, fixed-height, self-
supporting unit having one or more standing platforms that are provided 
with means of access or egress.
    Open riser means the gap or space between treads of stairways that 
do not have upright or inclined members (risers).
    Opening means a gap or open space in a wall, partition, vertical 
walking-working surface, or similar surface that is at least 30 inches 
(76 cm) high and at least 18 inches (46 cm) wide, through which an 
employee can fall to a lower level.
    Personal fall arrest system means a system used to arrest an 
employee in a fall from a walking-working surface. It consists of a 
body harness, anchorage, and connector. The means of connection may 
include a lanyard, deceleration device, lifeline, or a suitable 
combination of these.
    Personal fall protection system means a system (including all 
components) an employer uses to provide protection from falling or to 
safely arrest an employee's fall if one occurs. Examples of personal 
fall protection systems include personal fall arrest systems, 
positioning systems, and travel restraint systems.
    Platform means a walking-working surface that is elevated above the 
surrounding area.
    Portable ladder means a ladder that can readily be moved or 
carried, and usually consists of side rails joined at intervals by 
steps, rungs, or cleats.
    Positioning system (work-positioning system) 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.''
    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.
    Ramp means an inclined walking-working surface used to access 
another level.
    Riser means the upright (vertical) or inclined member of a stair 
that is located at the back of a stair tread or platform and connects 
close to the front edge of the next higher tread, platform, or landing.
    Rope descent system means a suspension system that allows an 
employee to descend in a controlled manner and, as needed, stop at any 
point during the descent. A rope descent system usually consists of a 
roof anchorage, support rope, a descent device, carabiner(s) or 
shackle(s), and a chair (seatboard). A rope descent system also is 
called controlled descent equipment or apparatus. Rope descent systems 
do not include industrial rope access systems.
    Rung, step, or cleat means the cross-piece of a ladder on which an 
employee steps to climb up and down.
    Runway means an elevated walking-working surface, such as a 
catwalk, a foot walk along shafting, or an elevated walkway between 
buildings.
    Scaffold means any temporary elevated or suspended platform and its 
supporting structure, including anchorage points, used to support 
employees, equipment, materials, and other items. For purposes of this 
subpart, a scaffold does not include a crane-suspended or derrick-
suspended personnel platform or a rope descent system.
    Ship stair (ship ladder) means 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.
    Side-step ladder means a type of fixed ladder that requires an 
employee to step sideways from it in order to reach a walking-working 
surface, such as a landing.
    Spiral stairs means a series of treads attached to a vertical pole 
in a winding fashion, usually within a cylindrical space.
    Stair rail or stair rail system means a barrier erected along the 
exposed or open side of stairways to prevent employees from falling to 
a lower level.
    Stairway (stairs) means risers and treads that connect one level 
with another, and includes any landings and platforms in between those 
levels. Stairways include standard, spiral, alternating tread-type, and 
ship stairs.
    Standard stairs means a fixed or permanently installed stairway. 
Ship, spiral, and alternating tread-type stairs are not considered 
standard stairs.
    Step bolt (pole step) means a bolt or rung attached at intervals 
along a structural member used for foot placement and as a handhold 
when climbing or standing.
    Stepladder means a self-supporting, portable ladder that has a 
fixed height, flat steps, and a hinged back.
    Stepstool means a self-supporting, portable ladder that has flat 
steps and side rails. For purposes of the final rule, stepstool 
includes only those ladders that have a fixed height, do not have a 
pail shelf, and do not exceed 32 inches (81 cm) in overall height to 
the top cap, although side rails may extend above the top cap. A 
stepstool is designed so an employee can climb and stand on all of the 
steps and the top cap.
    Through ladder means a type of fixed ladder that allows the 
employee to step through the side rails at the top of the ladder to 
reach a walking-working surface, such as a landing.
    Tieback means an attachment between an anchorage (e.g., structural 
member) and a supporting device (e.g., parapet clamp or cornice hook).
    Toeboard means a low protective barrier that is designed to prevent 
materials, tools, and equipment from falling to a lower level, and 
protect employees from falling.
    Travel restraint system means a combination of an anchorage, 
anchorage connector, lanyard (or other means of connection), and body 
support that an employer uses to eliminate the possibility of an 
employee going over the edge of a walking-working surface.
    Tread means a horizontal member of a stair or stairway, but does 
not include landings or platforms.
    Unprotected sides and edges mean 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.

[[Page 82983]]

    Walking-working surface means any horizontal or vertical surface on 
or through which an employee walks, works, or gains access to a work 
area or workplace location.
    Warning line means 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.
    Well means a permanent, complete enclosure around a fixed ladder.


Sec.  1910.22  General requirements.

    (a) Surface conditions. The employer must ensure:
    (1) All places of employment, passageways, storerooms, service 
rooms, and walking-working surfaces are kept in a clean, orderly, and 
sanitary condition.
    (2) The floor of each workroom is maintained in a clean and, to the 
extent feasible, in a dry condition. When wet processes are used, 
drainage must be maintained and, to the extent feasible, dry standing 
places, such as false floors, platforms, and mats must be provided.
    (3) Walking-working surfaces are maintained free of hazards such as 
sharp or protruding objects, loose boards, corrosion, leaks, spills, 
snow, and ice.
    (b) Loads. The employer must ensure that each walking-working 
surface can support the maximum intended load for that surface.
    (c) Access and egress. The employer must provide, and ensure each 
employee uses, a safe means of access and egress to and from walking-
working surfaces.
    (d) Inspection, maintenance, and repair. The employer must ensure:
    (1) Walking-working surfaces are inspected, regularly and as 
necessary, and maintained in a safe condition;
    (2) Hazardous conditions on walking-working surfaces are corrected 
or repaired before an employee uses the walking-working surface again. 
If the correction or repair cannot be made immediately, the hazard must 
be guarded to prevent employees from using the walking-working surface 
until the hazard is corrected or repaired; and
    (3) When any correction or repair involves the structural integrity 
of the walking-working surface, a qualified person performs or 
supervises the correction or repair.


Sec.  1910.23  Ladders.

    (a) Application. The employer must ensure that each ladder used 
meets the requirements of this section. This section covers all 
ladders, except when the ladder is:
    (1) Used in emergency operations such as firefighting, rescue, and 
tactical law enforcement operations, or training for these operations; 
or
    (2) Designed into or is an integral part of machines or equipment.
    (b) General requirements for all ladders. The employer must ensure:
    (1) Ladder rungs, steps, and cleats are parallel, level, and 
uniformly spaced when the ladder is in position for use;
    (2) Ladder rungs, steps, and cleats are spaced not less than 10 
inches (25 cm) and not more than 14 inches (36 cm) apart, as measured 
between the centerlines of the rungs, cleats, and steps, except that:
    (i) Ladder rungs and steps in elevator shafts must be spaced not 
less than 6 inches (15 cm) apart and not more than 16.5 inches (42 cm) 
apart, as measured along the ladder side rails; and
    (ii) Fixed ladder rungs and steps on telecommunication towers must 
be spaced not more than 18 inches (46 cm) apart, measured between the 
centerlines of the rungs or steps;
    (3) Steps on stepstools are spaced not less than 8 inches (20 cm) 
apart and not more than 12 inches (30 cm) apart, as measured between 
the centerlines of the steps;
    (4) Ladder rungs, steps, and cleats have a minimum clear width of 
11.5 inches (29 cm) on portable ladders and 16 inches (41 cm) (measured 
before installation of ladder safety systems) for fixed ladders, except 
that:
    (i) The minimum clear width does not apply to 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;
    (ii) Rungs and steps of manhole entry ladders that are supported by 
the manhole opening must have a minimum clear width of 9 inches (23 
cm);
    (iii) Rungs and steps on rolling ladders used in telecommunication 
centers must have a minimum clear width of 8 inches (20 cm); and
    (iv) Stepstools have a minimum clear width of 10.5 inches (26.7 
cm);
    (5) Wooden ladders are not coated with any material that may 
obscure structural defects;
    (6) Metal ladders are made with corrosion-resistant material or 
protected against corrosion;
    (7) Ladder surfaces are free of puncture and laceration hazards;
    (8) Ladders are used only for the purposes for which they were 
designed;
    (9) Ladders are inspected before initial use in each work shift, 
and more frequently as necessary, to identify any visible defects that 
could cause employee injury;
    (10) Any ladder with structural or other defects is immediately 
tagged ``Dangerous: Do Not Use'' or with similar language in accordance 
with Sec.  1910.145 and removed from service until repaired in 
accordance with Sec.  1910.22(d), or replaced;
    (11) Each employee faces the ladder when climbing up or down it;
    (12) Each employee uses at least one hand to grasp the ladder when 
climbing up and down it; and
    (13) No employee carries any object or load that could cause the 
employee to lose balance and fall while climbing up or down the ladder.
    (c) Portable ladders. The employer must ensure:
    (1) 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;
    (2) Each stepladder or combination ladder used in a stepladder mode 
is equipped with a metal spreader or locking device that securely holds 
the front and back sections in an open position while the ladder is in 
use;
    (3) Ladders are not loaded beyond the maximum intended load;

    Note to paragraph (c)(3):  The maximum intended load, as defined 
in Sec.  1910.21(b), includes the total load (weight and force) of 
the employee and all tools, equipment, and materials being carried.

    (4) Ladders are used only on stable and level surfaces unless they 
are secured or stabilized to prevent accidental displacement;
    (5) No portable single rail ladders are used;
    (6) No ladder is moved, shifted, or extended while an employee is 
on it;
    (7) Ladders placed in locations such as passageways, doorways, or 
driveways where they can be displaced by other activities or traffic:
    (i) Are secured to prevent accidental displacement; or
    (ii) Are guarded by a temporary barricade, such as a row of traffic 
cones or caution tape, to keep the activities or traffic away from the 
ladder;
    (8) The cap (if equipped) and top step of a stepladder are not used 
as steps;
    (9) Portable ladders used on slippery surfaces are secured and 
stabilized;
    (10) The top of a non-self-supporting ladder is placed so that both 
side rails are supported, unless the ladder is equipped with a single 
support attachment;
    (11) Portable ladders used to gain access to an upper landing 
surface have side rails that extend at least 3 feet (0.9 m) above the 
upper landing surface (see Figure D-1 of this section);
    (12) Ladders and ladder sections are not tied or fastened together 
to provide

[[Page 82984]]

added length unless they are specifically designed for such use;
    (13) Ladders are not placed on boxes, barrels, or other unstable 
bases to obtain additional height.
[GRAPHIC] [TIFF OMITTED] TR18NO16.346

    (d) Fixed ladders. The employer must ensure:
    (1) Fixed ladders are capable of supporting their maximum intended 
load;
    (2) The minimum perpendicular distance from the centerline of the 
steps or rungs, or grab bars, or both, to the nearest permanent object 
in back of the ladder is 7 inches (18 cm), except for elevator pit 
ladders, which have a minimum perpendicular distance of 4.5 inches (11 
cm);
    (3) Grab bars do not protrude on the climbing side beyond the rungs 
of the ladder that they serve;
    (4) The side rails of through or side-step ladders extend 42 inches 
(1.1 m) above the top of the access level or landing platform served by 
the ladder. For parapet ladders, the access level is:
    (i) The roof, if the parapet is cut to permit passage through the 
parapet; or
    (ii) The top of the parapet, if the parapet is continuous;
    (5) For through ladders, the steps or rungs are omitted from the 
extensions, and the side rails are flared to provide not less than 24 
inches (61cm) and not more than 30 inches (76 cm) of clearance. When a 
ladder safety system is provided, the maximum clearance between side 
rails of the extension must not exceed 36 inches (91 cm);
    (6) For side-step ladders, the side rails, rungs, and steps must be 
continuous in the extension (see Figure D-2 of this section);
    (7) Grab bars extend 42 inches (1.1 m) above the access level or 
landing platforms served by the ladder;
    (8) The minimum size (cross-section) of grab bars is the same size 
as the rungs of the ladder.
    (9) When a fixed ladder terminates at a hatch (see Figure D-3 of 
this section), the hatch cover:
    (i) Opens with sufficient clearance to provide easy access to or 
from the ladder; and
    (ii) Opens at least 70 degrees from horizontal if the hatch is 
counterbalanced;
    (10) Individual-rung ladders are constructed to prevent the 
employee's feet from sliding off the ends of the rungs (see Figure D-4 
of this section);
    (11) Fixed ladders having a pitch greater than 90 degrees from the 
horizontal are not used;
    (12) The step-across distance from the centerline of the rungs or 
steps is:
    (i) For through ladders, not less than 7 inches (18 cm) and not 
more than 12 inches (30 cm) to the nearest edge of the structure, 
building, or equipment accessed from the ladders;
    (ii) For side-step ladders, not less than 15 inches (38 cm) and not 
more than 20 inches (51 cm) to the access points of the platform edge;
    (13) Fixed ladders that do not have cages or wells have:
    (i) A clear width of at least 15 inches (38 cm) on each side of the 
ladder centerline to the nearest permanent object; and
    (ii) A minimum perpendicular distance of 30 inches (76 cm) from the 
centerline of the steps or rungs to the nearest object on the climbing 
side. When unavoidable obstructions are encountered, the minimum 
clearance at the obstruction may be reduced to 24 inches (61 cm), 
provided deflector plates are installed (see Figure D-5 of this 
section).

    Note to paragraph (d):  Section 1910.28 establishes the 
employer's duty to provide fall protection for employees on fixed 
ladders, and Sec.  1910.29 specifies the criteria for fall 
protection systems for fixed ladders.


[[Page 82985]]


[GRAPHIC] [TIFF OMITTED] TR18NO16.347


[[Page 82986]]


[GRAPHIC] [TIFF OMITTED] TR18NO16.348

    (e) Mobile ladder stands and mobile ladder stand platforms--(1) 
General requirements. The employer must ensure:
    (i) Mobile ladder stands and platforms have a step width of at 
least 16 inches (41 cm);
    (ii) The steps and platforms of mobile ladder stands and platforms 
are slip resistant. Slip-resistant surfaces must be either an integral 
part of the design and construction of the mobile ladder stand and 
platform, or provided as a secondary process or operation, such as 
dimpling, knurling, shotblasting, coating, spraying, or applying 
durable slip-resistant tapes;
    (iii) Mobile ladder stands and platforms are capable of supporting 
at least four times their maximum intended load;
    (iv) Wheels or casters under load are capable of supporting their 
proportional share of four times the maximum intended load, plus their 
proportional share of the unit's weight;
    (v) Unless otherwise specified in this section, mobile ladder 
stands and platforms with a top step height of 4 feet (1.2 m) or above 
have handrails with a vertical height of 29.5 inches (75 cm) to 37 
inches (94 cm), measured from the front edge of a step. Removable gates 
or non-rigid members, such as chains, may be used instead of handrails 
in special-use applications;
    (vi) The maximum work-surface height of mobile ladder stands and 
platforms does not exceed four times the shortest base dimension, 
without additional support. For greater heights, outriggers, 
counterweights, or comparable means that stabilize the mobile ladder 
stands and platforms and prevent overturning must be used;
    (vii) Mobile ladder stands and platforms that have wheels or 
casters are equipped with a system to impede horizontal movement when 
an employee is on the stand or platform; and
    (viii) No mobile ladder stand or platform moves when an employee is 
on it.
    (2) Design requirements for mobile ladder stands. The employer must 
ensure:
    (i) Steps are uniformly spaced and arranged, with a rise of not 
more than 10 inches (25 cm) and a depth of not less than 7 inches (18 
cm). The slope of the step stringer to which the steps are attached 
must not be more than 60 degrees, measured from the horizontal;
    (ii) Mobile ladder stands with a top step height above 10 feet (3 
m) have the top step protected on three sides by a handrail with a 
vertical height of at least 36 inches (91 cm); and top steps that are 
20 inches (51 cm) or more, front to back, have a midrail and toeboard. 
Removable gates or non-rigid members, such as chains, may be used 
instead of handrails in special-use applications; and
    (iii) The standing area of mobile ladder stands is within the base 
frame.
    (3) Design requirements for mobile ladder stand platforms. The 
employer must ensure:
    (i) Steps of mobile ladder stand platforms meet the requirements of 
paragraph (e)(2)(i) of this section. When the employer demonstrates 
that the requirement is not feasible, steeper slopes or vertical rung 
ladders may be used, provided the units are stabilized to prevent 
overturning;
    (ii) Mobile ladder stand platforms with a platform height of 4 to 
10 feet (1.2 m to 3 m) have, in the platform area, handrails with a 
vertical height of at least 36 inches (91 cm) and midrails; and
    (iii) All ladder stand platforms with a platform height above 10 
feet (3 m) have guardrails and toeboards on the exposed sides and ends 
of the platform.
    (iv) Removable gates or non-rigid members, such as chains, may be 
used on mobile ladder stand platforms instead of handrails and 
guardrails in special-use applications.


Sec.  1910.24  Step bolts and manhole steps.

    (a) Step bolts. The employer must ensure:
    (1) Each step bolt installed on or after January 17, 2017 in an 
environment where corrosion may occur is constructed of, or coated 
with, material that protects against corrosion;
    (2) Each step bolt is designed, constructed, and maintained to 
prevent the employee's foot from slipping off the end of the step bolt;
    (3) Step bolts are uniformly spaced at a vertical distance of not 
less than 12 inches (30 cm) and not more than 18 inches (46 cm) apart, 
measured center to center (see Figure D-6 of this section). The spacing 
from the entry and exit surface to the first step bolt may differ from 
the spacing between the other step bolts;
    (4) Each step bolt has a minimum clear width of 4.5 inches (11 cm);
    (5) The minimum perpendicular distance between the centerline of 
each step bolt to the nearest permanent object in back of the step bolt 
is 7 inches (18 cm). When the employer demonstrates that an obstruction 
cannot be avoided, the distance must be at least 4.5 inches (11 cm);
    (6) Each step bolt installed before January 17, 2017 is capable of 
supporting its maximum intended load;

[[Page 82987]]

    (7) Each step bolt installed on or after January 17, 2017 is 
capable of supporting at least four times its maximum intended load;
    (8) Each step bolt is inspected at the start of the workshift and 
maintained in accordance with Sec.  1910.22; and
    (9) Any step bolt that is bent more than 15 degrees from the 
perpendicular in any direction is removed and replaced with a step bolt 
that meets the requirements of this section before an employee uses it.
[GRAPHIC] [TIFF OMITTED] TR18NO16.349

    (b) Manhole steps. (1) The employer must ensure that each manhole 
step is capable of supporting its maximum intended load.
    (2) The employer must ensure that each manhole step installed on or 
after January 17, 2017:
    (i) Has a corrugated, knurled, dimpled, or other surface that 
minimizes the possibility of an employee slipping;
    (ii) Is constructed of, or coated with, material that protects 
against corrosion if the manhole step is located in an environment 
where corrosion may occur;
    (iii) Has a minimum clear step width of 10 inches (25 cm);
    (iv) Is uniformly spaced at a vertical distance not more than 16 
inches (41 cm) apart, measured center to center between steps. The 
spacing from the entry and exit surface to the first manhole step may 
differ from the spacing between the other steps.
    (v) Has a minimum perpendicular distance between the centerline of 
the manhole step to the nearest permanent object in back of the step of 
at least 4.5 inches (11 cm); and
    (vi) Is designed, constructed, and maintained to prevent the 
employee's foot from slipping or sliding off the end.
    (3) The employer must ensure that each manhole step is inspected at 
the start of the work shift and maintained in accordance with Sec.  
1910.22.


Sec.  1910.25  Stairways.

    (a) Application. This section covers all stairways (including 
standard, spiral, ship, and alternating tread-type stairs), except for 
stairs serving floating roof tanks, stairs on scaffolds, stairs 
designed into machines or equipment, and stairs on self-propelled 
motorized equipment.
    (b) General requirements. The employer must ensure:
    (1) Handrails, stair rail systems, and guardrail systems are 
provided in accordance with Sec.  1910.28;
    (2) Vertical clearance above any stair tread to any overhead 
obstruction is at least 6 feet, 8 inches (203 cm), as measured from the 
leading edge of the tread. Spiral stairs must meet the vertical 
clearance requirements in paragraph (d)(3) of this section.
    (3) Stairs have uniform riser heights and tread depths between 
landings;
    (4) Stairway landings and platforms are at least the width of the 
stair and at least 30 inches (76 cm) in depth, as measured in the 
direction of travel;
    (5) When a door or a gate opens directly on a stairway, a platform 
is provided, and the swing of the door or gate does not reduce the 
platform's effective usable depth to:
    (i) Less than 20 inches (51 cm) for platforms installed before 
January 17, 2017; and
    (ii) Less than 22 inches (56 cm) for platforms installed on or 
after January 17, 2017 (see Figure D-7 of this section);
    (6) Each stair can support at least five times the normal 
anticipated live load, but never less than a concentrated load of 1,000 
pounds (454 kg) applied at any point;
    (7) Standard stairs are used to provide access from one walking-
working surface to another when operations necessitate regular and 
routine travel between levels, including access to operating platforms 
for equipment. Winding stairways may be used on tanks and similar round 
structures when the diameter of the tank or structure is at least 5 
feet (1.5 m).
    (8) Spiral, ship, or alternating tread-type stairs are used only 
when the employer can demonstrate that it is not feasible to provide 
standard stairs.
    (9) When paragraph (b)(8) of this section allows the use of spiral, 
ship, or alternating tread-type stairs, they are installed, used, and 
maintained in accordance with manufacturer's instructions.

[[Page 82988]]

[GRAPHIC] [TIFF OMITTED] TR18NO16.350

    (c) Standard stairs. In addition to paragraph (b) of this section, 
the employer must ensure standard stairs:
    (1) Are installed at angles between 30 to 50 degrees from the 
horizontal;
    (2) Have a maximum riser height of 9.5 inches (24 cm);
    (3) Have a minimum tread depth of 9.5 inches (24 cm); and
    (4) Have a minimum width of 22 inches (56 cm) between vertical 
barriers (see Figure D-8 of this section).
    (5) Exception to paragraphs (c)(2) and (3) of this section. The 
requirements of paragraphs (c)(2) and (3) do not apply to standard 
stairs installed prior to January 17, 2017. OSHA will deem those stairs 
in compliance if they meet the dimension requirements specified in 
Table D-1 of this section or they use a combination that achieves the 
angle requirements of paragraph (c)(1) of this section.
[GRAPHIC] [TIFF OMITTED] TR18NO16.351


[[Page 82989]]


[GRAPHIC] [TIFF OMITTED] TR18NO16.352

    (d) Spiral stairs. In addition to paragraph (b) of this section, 
the employer must ensure spiral stairs:
    (1) Have a minimum clear width of 26 inches (66 cm);
    (2) Have a maximum riser height of 9.5 inches (24 cm);
    (3) Have a minimum headroom above spiral stair treads of at least 6 
feet, 6 inches (2 m), measured from the leading edge of the tread;
    (4) Have a minimum tread depth of 7.5 inches (19 cm), measured at a 
point 12 inches (30 cm) from the narrower edge;
    (5) Have a uniform tread size;
    (e) Ship stairs. In addition to paragraph (b) of this section, the 
employer must ensure ship stairs (see Figure D-9 of this section):
    (1) Are installed at a slope of 50 to 70 degrees from the 
horizontal;
    (2) Have open risers with a vertical rise between tread surfaces of 
6.5 to 12 inches (17 to 30 cm);
    (3) Have minimum tread depth of 4 inches (10 cm); and
    (4) Have a minimum tread width of 18 inches (46 cm).
    [GRAPHIC] [TIFF OMITTED] TR18NO16.353
    
    (f) Alternating tread-type stairs. In addition to paragraph (b) of 
this section, the employer must ensure alternating tread-type stairs:
    (1) Have a series of treads installed at a slope of 50 to 70 
degrees from the horizontal;
    (2) Have a distance between handrails of 17 to 24 inches (51 to 61 
cm);
    (3) Have a minimum tread depth of 8.5 inches (22 cm); and
    (4) Have open risers if the tread depth is less than 9.5 inches (24 
cm);
    (5) Have a minimum tread width of 7 inches (18 cm), measured at the 
leading edge of the tread (i.e., nosing).

[[Page 82990]]

[GRAPHIC] [TIFF OMITTED] TR18NO16.354

Sec.  1910.26  Dockboards.

    The employer must ensure that each dockboard used meets the 
requirements of this section. The employer must ensure:
    (a) Dockboards are capable of supporting the maximum intended load 
in accordance with Sec.  1910.22(b);
    (b)(1) Dockboards put into initial service on or after January 17, 
2017 are designed, constructed, and maintained to prevent transfer 
vehicles from running off the dockboard edge;
    (2) Exception to paragraph (b)(1) of this section. When the 
employer demonstrates there is no hazard of transfer vehicles running 
off the dockboard edge, the employer may use dockboards that do not 
have run-off protection.
    (c) Portable dockboards are secured by anchoring them in place or 
using equipment or devices that prevent the dockboard from moving out 
of a safe position. When the employer demonstrates that securing the 
dockboard is not feasible, the employer must ensure there is sufficient 
contact between the dockboard and the surface to prevent the dockboard 
from moving out of a safe position;
    (d) Measures, such as wheel chocks or sand shoes, are used to 
prevent the transport vehicle (e.g. a truck, semi-trailer, trailer, or 
rail car) on which a dockboard is placed, from moving while employees 
are on the dockboard; and
    (e) Portable dockboards are equipped with handholds or other means 
to permit safe handling of dockboards.


Sec.  1910.27  Scaffolds and rope descent systems.

    (a) Scaffolds. Scaffolds used in general industry must meet the 
requirements in 29 CFR part 1926, subpart L (Scaffolds).
    (b) Rope descent systems--(1) Anchorages. (i) Before any rope 
descent system is used, the building owner must inform 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 (268 kg), in any direction, for each employee attached. The 
information must be based on an annual inspection by a qualified person 
and certification of each anchorage by a qualified person, as 
necessary, and at least every 10 years.
    (ii) The employer must ensure that no employee uses any anchorage 
before the employer has obtained written information from the building 
owner that each anchorage meets the requirements of paragraph (b)(1)(i) 
of this section. The employer must keep the information for the 
duration of the job.
    (iii) The requirements in paragraphs (b)(1)(i) and (ii) of this 
section must be implemented no later than November 20, 2017.

[[Page 82991]]

    (2) Use of rope descent systems. The employer must ensure:
    (i) No rope descent system is used for heights greater than 300 
feet (91 m) above grade unless the employer demonstrates that it is not 
feasible to access such heights by any other means or that those means 
pose a greater hazard than using a rope descent system;
    (ii) The rope descent system is used in accordance with 
instructions, warnings, and design limitations set by the manufacturer 
or under the direction of a qualified person;
    (iii) Each employee who uses the rope descent system is trained in 
accordance with Sec.  1910.30;
    (iv) The rope descent system is inspected at the start of each 
workshift that it is to be used. The employer must ensure damaged or 
defective equipment is removed from service immediately and replaced;
    (v) The rope descent system has proper rigging, including 
anchorages and tiebacks, with particular emphasis on providing tiebacks 
when counterweights, cornice hooks, or similar non-permanent anchorages 
are used;
    (vi) Each employee uses a separate, independent personal fall 
arrest system that meets the requirements of subpart I of this part;
    (vii) All components of each rope descent system, except seat 
boards, are capable of sustaining a minimum rated load of 5,000 pounds 
(22.2 kN). Seat boards must be capable of supporting a live load of 300 
pounds (136 kg);
    (viii) Prompt rescue of each employee is provided in the event of a 
fall;
    (ix) The ropes of each rope descent system are effectively padded 
or otherwise protected, where they can contact edges of the building, 
anchorage, obstructions, or other surfaces, to prevent them from being 
cut or weakened;
    (x) Stabilization is provided at the specific work location when 
descents are greater than 130 feet (39.6 m);
    (xi) No employee uses a rope descent system when hazardous weather 
conditions, such as storms or gusty or excessive wind, are present;
    (xii) Equipment, such as tools, squeegees, or buckets, is secured 
by a tool lanyard or similar method to prevent it from falling; and
    (xiii) The ropes of each rope descent system are protected from 
exposure to open flames, hot work, corrosive chemicals, and other 
destructive conditions.


Sec.  1910.28  Duty to have fall protection and falling object 
protection.

    (a) General. (1) This section requires employers to provide 
protection for each employee exposed to fall and falling object 
hazards. Unless stated otherwise, the employer must ensure that all 
fall protection and falling object protection required by this section 
meet the criteria in Sec.  1910.29, except that personal fall 
protection systems required by this section meet the criteria of Sec.  
1910.140.
    (2) This section does not apply:
    (i) To portable ladders;
    (ii) When employers are inspecting, investigating, or assessing 
workplace conditions or work to be performed prior to the start of work 
or after all work has been completed. This exemption 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 
for pre-work and post-work inspections, investigations, or assessments;
    (iii) To fall hazards presented by the exposed perimeters of 
entertainment stages and the exposed perimeters of rail-station 
platforms;
    (iv) To powered platforms covered by Sec.  1910.66(j);
    (v) To aerial lifts covered by Sec.  1910.67(c)(2)(v);
    (vi) To telecommunications work covered by Sec.  1910.268(n)(7) and 
(8); and
    (vii) To electric power generation, transmission, and distribution 
work covered by Sec.  1910.269(g)(2)(i).
    (b) Protection from fall hazards--(1) Unprotected sides and edges. 
(i) Except as provided elsewhere in this section, the employer must 
ensure that each employee on a walking-working surface with an 
unprotected side or edge that is 4 feet (1.2 m) or more above a lower 
level is protected from falling by one or more of the following:
    (A) Guardrail systems;
    (B) Safety net systems; or
    (C) Personal fall protection systems, such as personal fall arrest, 
travel restraint, or positioning systems.
    (ii) When the employer can demonstrate that it is not feasible or 
creates a greater hazard to use guardrail, safety net, or personal fall 
protection systems on residential roofs, the employer must develop and 
implement a fall protection plan that meets the requirements of 29 CFR 
1926.502(k) and training that meets the requirements of 29 CFR 
1926.503(a) and (c).

    Note to paragraph (b)(1)(ii) of this section: There is a 
presumption that it is feasible and will not create a greater hazard 
to use at least one of the above-listed fall protection systems 
specified in paragraph (b)(1)(i) of this section. Accordingly, the 
employer has the burden of establishing that it is not feasible or 
creates a greater hazard to provide the fall protection systems 
specified in paragraph (b)(1)(i) and that it is necessary to 
implement a fall protection plan that complies with Sec.  
1926.502(k) in the particular work operation, in lieu of 
implementing any of those systems.

    (iii) When the employer can demonstrate that the use of fall 
protection systems is not feasible on the working side of a platform 
used at a loading rack, loading dock, or teeming platform, the work may 
be done without a fall protection system, provided:
    (A) The work operation for which fall protection is infeasible is 
in process;
    (B) Access to the platform is limited to authorized employees; and,
    (C) The authorized employees are trained in accordance with Sec.  
1910.30.
    (2) Hoist areas. The employer must ensure:
    (i) Each employee in a hoist area is protected from falling 4 feet 
(1.2 m) or more to a lower level by:
    (A) A guardrail system;
    (B) A personal fall arrest system; or
    (C) A travel restraint system.
    (ii) When any portion of a guardrail system, gate, or chains is 
removed, and an employee must lean through or over the edge of the 
access opening to facilitate hoisting, the employee is protected from 
falling by a personal fall arrest system.
    (iii) If grab handles are installed at hoist areas, they meet the 
requirements of Sec.  1910.29(l).
    (3) Holes. The employer must ensure:
    (i) Each employee is protected from falling through any hole 
(including skylights) that is 4 feet (1.2 m) or more above a lower 
level by one or more of the following:
    (A) Covers;
    (B) Guardrail systems;
    (C) Travel restraint systems; or
    (D) Personal fall arrest systems.
    (ii) Each employee is protected from tripping into or stepping into 
or through any hole that is less than 4 feet (1.2 m) above a lower 
level by covers or guardrail systems.
    (iii) Each employee is protected from falling into a stairway floor 
hole by a fixed guardrail system on all exposed sides, except at the 
stairway entrance. However, for any stairway used less than once per 
day where traffic across the stairway floor hole prevents the use of a 
fixed guardrail system (e.g., holes located in aisle spaces), the 
employer may protect employees from falling into the hole by using a 
hinged floor hole cover that meets the criteria in Sec.  1910.29 and a 
removable guardrail system on all exposed sides, except at the entrance 
to the stairway.

[[Page 82992]]

    (iv) Each employee is protected from falling into a ladderway floor 
hole or ladderway platform hole by a guardrail system and toeboards 
erected on all exposed sides, except at the entrance to the hole, where 
a self-closing gate or an offset must be used.
    (v) Each employee is protected from falling through a hatchway and 
chute-floor hole by:
    (A) A hinged floor-hole cover that meets the criteria in Sec.  
1910.29 and a fixed guardrail system that leaves only one exposed side. 
When the hole is not in use, the employer must ensure the cover is 
closed or a removable guardrail system is provided on the exposed 
sides;
    (B) 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 is kept 
in place when the hole is not in use; or
    (C) A guardrail system or a travel restraint system when a work 
operation necessitates passing material through a hatchway or chute 
floor hole.
    (4) Dockboards. (i) The employer must ensure that each employee on 
a dockboard is protected from falling 4 feet (1.2 m) or more to a lower 
level by a guardrail system or handrails.
    (ii) A guardrail system or handrails are not required when:
    (A) Dockboards are being used solely for materials-handling 
operations using motorized equipment;
    (B) Employees engaged in these operations are not exposed to fall 
hazards greater than 10 feet (3 m); and
    (C) Those employees have been trained in accordance with Sec.  
1910.30.
    (5) Runways and similar walkways. (i) The employer must ensure each 
employee on a runway or similar walkway is protected from falling 4 
feet (1.2 m) or more to a lower level by a guardrail system.
    (ii) When the employer can demonstrate that it is not feasible to 
have guardrails on both sides of a runway used exclusively for a 
special purpose, the employer may omit the guardrail on one side of the 
runway, provided the employer ensures:
    (A) The runway is at least 18 inches (46 cm) wide; and
    (B) Each employee is provided with and uses a personal fall arrest 
system or travel restraint system.
    (6) Dangerous equipment. The employer must ensure:
    (i) Each employee less than 4 feet (1.2 m) above dangerous 
equipment is protected from falling into or onto the dangerous 
equipment by a guardrail system or a travel restraint system, unless 
the equipment is covered or guarded to eliminate the hazard.
    (ii) Each employee 4 feet (1.2 m) or more above dangerous equipment 
must be protected from falling by:
    (A) Guardrail systems;
    (B) Safety net systems;
    (C) Travel restraint systems; or
    (D) Personal fall arrest systems.
    (7) Openings. The employer must ensure that each employee on a 
walking-working surface near an opening, including one with a chute 
attached, where the inside bottom edge of the opening is less than 39 
inches (99 cm) above that walking-working surface and the outside 
bottom edge of the opening is 4 feet (1.2 m) or more above a lower 
level is protected from falling by the use of:
    (i) Guardrail systems;
    (ii) Safety net systems;
    (iii) Travel restraint systems; or,
    (iv) Personal fall arrest systems.
    (8) Repair pits, service pits, and assembly pits less than 10 feet 
in depth. The use of a fall protection system is not required for a 
repair pit, service pit, or assembly pit that is less than 10 feet (3 
m) deep, provided the employer:
    (i) Limits access within 6 feet (1.8 m) of the edge of the pit to 
authorized employees trained in accordance with Sec.  1910.30;
    (ii) Applies floor markings at least 6 feet (1.8 m) from the edge 
of the pit in colors that contrast with the surrounding area; or places 
a warning line at least 6 feet (1.8 m) from the edge of the pit as well 
as stanchions that are capable of resisting, without tipping over, a 
force of at least 16 pounds (71 N) applied horizontally against the 
stanchion at a height of 30 inches (76 cm); or places a combination of 
floor markings and warning lines at least 6 feet (1.8 m) from the edge 
of the pit. When two or more pits in a common area are not more than 15 
feet (4.5m) apart, the employer may comply by placing contrasting floor 
markings at least 6 feet (1.8 m) from the pit edge around the entire 
area of the pits; and
    (iii) Posts readily visible caution signs that meet the 
requirements of Sec.  1910.145 and state ``Caution--Open Pit.''
    (9) Fixed ladders (that extend more than 24 feet (7.3 m) above a 
lower level). (i) For fixed ladders that extend more than 24 feet (7.3 
m) above a lower level, the employer must ensure:
    (A) Existing fixed ladders. Each fixed ladder installed before 
November 19, 2018 is equipped with a personal fall arrest system, 
ladder safety system, cage, or well;
    (B) New fixed ladders. Each fixed ladder installed on and after 
November 19, 2018, is equipped with a personal fall arrest system or a 
ladder safety system;
    (C) Replacement. 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; and
    (D) Final deadline. On and after November 18, 2036, all fixed 
ladders are equipped with a personal fall arrest system or a ladder 
safety system.
    (ii) When a one-section fixed ladder is equipped with a personal 
fall protection or a ladder safety system or a fixed ladder is equipped 
with a personal fall arrest or ladder safety system on more than one 
section, the employer must ensure:
    (A) The personal fall arrest system or ladder safety system 
provides protection throughout the entire vertical distance of the 
ladder, including all ladder sections; and
    (B) The ladder has rest platforms provided at maximum intervals of 
150 feet (45.7 m).
    (iii) The employer must ensure ladder sections having a cage or 
well:
    (A) Are offset from adjacent sections; and
    (B) Have landing platforms provided at maximum intervals of 50 feet 
(15.2 m).
    (iv) The employer may use a cage or well in combination with a 
personal fall arrest system or ladder safety system provided that the 
cage or well does not interfere with the operation of the system.
    (10) Outdoor advertising (billboards). (i) The requirements in 
paragraph (b)(9) of this section, and other requirements in subparts D 
and I of this part, apply to fixed ladders used in outdoor advertising 
activities.
    (ii) When an employee engaged in outdoor advertising climbs a fixed 
ladder before November 19, 2018 that is not equipped with a cage, well, 
personal fall arrest system, or a ladder safety system the employer 
must ensure the employee:
    (A) Receives training and demonstrates the physical capability to 
perform the necessary climbs in accordance with Sec.  1910.29(h);
    (B) Wears a body harness equipped with an 18-inch (46 cm) rest 
lanyard;
    (C) Keeps both hands free of tools or material when climbing on the 
ladder; and
    (D) Is protected by a fall protection system upon reaching the work 
position.
    (11) Stairways. The employer must ensure:
    (i) Each employee exposed to an unprotected side or edge of a 
stairway

[[Page 82993]]

landing that is 4 feet (1.2 m) or more above a lower level is protected 
by a guardrail or stair rail system;
    (ii) Each flight of stairs having at least 3 treads and at least 4 
risers is equipped with stair rail systems and handrails as follows:
[GRAPHIC] [TIFF OMITTED] TR18NO16.355

    (iii) Each ship stairs and alternating tread type stairs is 
equipped with handrails on both sides.
    (12) Scaffolds and rope descent systems. The employer must ensure:
    (i) Each employee on a scaffold is protected from falling in 
accordance 29 CFR part 1926, subpart L; and
    (ii) Each employee using a rope descent system 4 feet (1.2 m) or 
more above a lower level is protected from falling by a personal fall 
arrest system.
    (13) Work on low-slope roofs. (i) When work is performed less than 
6 feet (1.6 m) from the roof edge, the employer must ensure each 
employee is protected from falling by a guardrail system, safety net 
system, travel restraint system, or personal fall arrest system.
    (ii) When work is performed at least 6 feet (1.6 m) but less than 
15 feet (4.6 m) from the roof edge, the employer must ensure each 
employee is protected from falling by using a guardrail system, safety 
net system, travel restraint system, or personal fall arrest system. 
The employer may use a designated area when performing work that is 
both infrequent and temporary.
    (iii) When work is performed 15 feet (4.6 m) or more from the roof 
edge, the employer must:
    (A) Protect each employee from falling by a guardrail system, 
safety net system, travel restraint system, or personal fall arrest 
system or a designated area. The employer is not required to provide 
any fall protection, provided the work is both infrequent and 
temporary; and
    (B) Implement and enforce a work rule prohibiting employees from 
going within 15 feet (4.6 m) of the roof edge without using fall 
protection in accordance with paragraphs (b)(13)(i) and (ii) of this 
section.
    (14) Slaughtering facility platforms. (i) The employer must protect 
each employee on the unprotected working side of a slaughtering 
facility platform that is 4 feet (1.2 m) or more above a lower level 
from falling by using:
    (A) Guardrail systems; or
    (B) Travel restraint systems.
    (ii) When the employer can demonstrate the use of a guardrail or 
travel restraint system is not feasible, the work may be done without 
those systems provided:
    (A) The work operation for which fall protection is infeasible is 
in process;
    (B) Access to the platform is limited to authorized employees; and
    (C) The authorized employees are trained in accordance with Sec.  
1910.30.
    (15) Walking-working surfaces not otherwise addressed. Except as 
provided elsewhere in this section or by other subparts of this part, 
the employer must

[[Page 82994]]

ensure each employee on a walking-working surface 4 feet (1.2 m) or 
more above a lower level is protected from falling by:
    (i) Guardrail systems;
    (ii) Safety net systems; or
    (iii) Personal fall protection systems, such as personal fall 
arrest, travel restraint, or positioning systems.
    (c) Protection from falling objects. When an employee is exposed to 
falling objects, the employer must ensure that each employee wears head 
protection that meets the requirements of subpart I of this part. In 
addition, the employer must protect employees from falling objects by 
implementing one or more of the following:
    (1) Erecting toeboards, screens, or guardrail systems to prevent 
objects from falling to a lower level;
    (2) 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; or
    (3) Barricading the area into which objects could fall, prohibiting 
employees from entering the barricaded area, and keeping objects far 
enough from an edge or opening to prevent them from falling to a lower 
level.


Sec.  1910.29  Fall protection systems and falling object protection--
criteria and practices.

    (a) General requirements. The employer must:
    (1) Ensure each fall protection system and falling object 
protection, other than personal fall protection systems, that this part 
requires meets the requirements in this section. The employer must 
ensure each personal fall protection system meets the requirements in 
subpart I of this part; and
    (2) Provide and install all fall protection systems and falling 
object protection this subpart requires, and comply with the other 
requirements in this subpart before any employee begins work that 
necessitates fall or falling object protection.
    (b) Guardrail systems. The employer must ensure guardrail systems 
meet the following requirements:
    (1) The top edge height of top rails, or equivalent guardrail 
system members, are 42 inches (107 cm), plus or minus 3 inches (8 cm), 
above the walking-working surface. The top edge height may exceed 45 
inches (114 cm), provided the guardrail system meets all other criteria 
of paragraph (b) of this section (see Figure D-11 of this section).
    (2) Midrails, screens, mesh, intermediate vertical members, solid 
panels, or equivalent intermediate members are installed between the 
walking-working surface and the top edge of the guardrail system as 
follows when there is not a wall or parapet that is at least 21 inches 
(53 cm) high:
    (i) Midrails are installed at a height midway between the top edge 
of the guardrail system and the walking-working surface;
    (ii) Screens and mesh extend from the walking-working surface to 
the top rail and along the entire opening between top rail supports;
    (iii) Intermediate vertical members (such as balusters) are 
installed no more than 19 inches (48 cm) apart; and
    (iv) Other equivalent intermediate members (such as additional 
midrails and architectural panels) are installed so that the openings 
are not more than 19 inches (48 cm) wide.
    (3) Guardrail systems are capable of withstanding, without failure, 
a force of at least 200 pounds (890 N) applied in a downward or outward 
direction within 2 inches (5 cm) of the top edge, at any point along 
the top rail.
    (4) When the 200-pound (890-N) test load is applied in a downward 
direction, the top rail of the guardrail system must not deflect to a 
height of less than 39 inches (99 cm) above the walking-working 
surface.
    (5) Midrails, screens, mesh, intermediate vertical members, solid 
panels, and other equivalent intermediate members are capable of 
withstanding, without failure, a force of at least 150 pounds (667 N) 
applied in any downward or outward direction at any point along the 
intermediate member.
    (6) Guardrail systems are smooth-surfaced to protect employees from 
injury, such as punctures or lacerations, and to prevent catching or 
snagging of clothing.
    (7) The ends of top rails and midrails do not overhang the terminal 
posts, except where the overhang does not pose a projection hazard for 
employees.
    (8) Steel banding and plastic banding are not used for top rails or 
midrails.
    (9) Top rails and midrails are at least 0.25-inches (0.6 cm) in 
diameter or in thickness.
    (10) When guardrail systems are used at hoist areas, a removable 
guardrail section, consisting of a top rail and midrail, are placed 
across the access opening between guardrail sections when employees are 
not performing hoisting operations. The employer may use chains or 
gates instead of a removable guardrail section at hoist areas if the 
employer demonstrates the chains or gates provide a level of safety 
equivalent to guardrails.
    (11) When guardrail systems are used around holes, they are 
installed on all unprotected sides or edges of the hole.
    (12) For guardrail systems used around holes through which 
materials may be passed:
    (i) When materials are being passed through the hole, not more than 
two sides of the guardrail system are removed; and
    (ii) When materials are not being passed through the hole, the hole 
must be guarded by a guardrail system along all unprotected sides or 
edges or closed over with a cover.
    (13) When guardrail systems are used around holes that serve as 
points of access (such as ladderways), the guardrail system opening:
    (i) Has a self-closing gate that slides or swings away from the 
hole, and is equipped with a top rail and midrail or equivalent 
intermediate member that meets the requirements in paragraph (b) of 
this section; or
    (ii) Is offset to prevent an employee from walking or falling into 
the hole;
    (14) Guardrail systems on ramps and runways are installed along 
each unprotected side or edge.
    (15) Manila or synthetic rope used for top rails or midrails are 
inspected as necessary to ensure that the rope continues to meet the 
strength requirements in paragraphs (b)(3) and (5) of this section.

    Note to paragraph (b) of this section:  The criteria and 
practices requirements for guardrail systems on scaffolds are 
contained in 29 CFR part 1926, subpart L.


[[Page 82995]]


[GRAPHIC] [TIFF OMITTED] TR18NO16.356

    (c) Safety net systems. The employer must ensure each safety net 
system meets the requirements in 29 CFR part 1926, subpart M.
    (d) Designated areas. (1) When the employer uses a designated area, 
the employer must ensure:
    (i) Employees remain within the designated area while work 
operations are underway; and
    (ii) The perimeter of the designated area is delineated with a 
warning line consisting of a rope, wire, tape, or chain that meets the 
requirements of paragraphs (d)(2) and (3) of this section.
    (2) The employer must ensure each warning line:
    (i) Has a minimum breaking strength of 200 pounds (0.89 kN);
    (ii) Is installed so its lowest point, including sag, is not less 
than 34 inches (86 cm) and not more than 39 inches (99 cm) above the 
walking-working surface;
    (iii) Is supported in such a manner that pulling on one section of 
the line will not result in slack being taken up in adjacent sections 
causing the line to fall below the limits specified in paragraph 
(d)(2)(ii) of this section;
    (iv) Is clearly visible from a distance of 25 feet (7.6 m) away, 
and anywhere within the designated area;
    (v) Is erected as close to the work area as the task permits; and
    (vi) Is erected 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.
    (3) When mobile mechanical equipment is used to perform work that 
is both temporary and infrequent in a designated area, the employer 
must ensure the warning line is erected not less than 6 feet (1.8 m) 
from the unprotected side or edge that is parallel to the direction in 
which the mechanical equipment is operated, and not less than 10 feet 
(3 m) from the unprotected side or edge that is perpendicular to the 
direction in which the mechanical equipment is operated.
    (e) Covers. The employer must ensure each cover for a hole in a 
walking-working surface:
    (1) Is capable of supporting without failure, at least twice the 
maximum intended load that may be imposed on the cover at any one time; 
and
    (2) Is secured to prevent accidental displacement.
    (f) Handrails and stair rail systems. The employer must ensure:
    (1) Height criteria. (i) Handrails are not less than 30 inches (76 
cm) and not more than 38 inches (97 cm), as measured from the leading 
edge of the stair tread to the top surface of the handrail (see Figure 
D-12 of this section).
    (ii) The height of stair rail systems meets the following:
    (A) The height of stair rail systems installed before January 17, 
2017 is not less than 30 inches (76 cm) from the leading edge of the 
stair tread to the top surface of the top rail; and
    (B) The height of stair rail systems installed on or after January 
17, 2017 is not less than 42 inches (107 cm) from the leading edge of 
the stair tread to the top surface of the top rail.
    (iii) The top rail of a stair rail system may serve as a handrail 
only when:
    (A) The height of the stair rail system is not less than 36 inches 
(91 cm) and not more than 38 inches (97 cm) as measured at the leading 
edge of the stair tread to the top surface of the top rail (see Figure 
D-13 of this section); and
    (B) The top rail of the stair rail system meets the other handrail 
requirements in paragraph (f) of this section.
    (2) Finger clearance. The minimum clearance between handrails and 
any other object is 2.25 inches (5.7 cm).
    (3) Surfaces. Handrails and stair rail systems are smooth-surfaced 
to protect employees from injury, such as punctures or lacerations, and 
to prevent catching or snagging of clothing.
    (4) Openings in stair rails. No opening in a stair rail system 
exceeds 19 inches (48 cm) at its least dimension.
    (5) Handhold. Handrails have the shape and dimension necessary so 
that employees can grasp the handrail firmly.
    (6) Projection hazards. The ends of handrails and stair rail 
systems do not present any projection hazards.
    (7) Strength criteria. Handrails and the top rails of stair rail 
systems are capable of withstanding, without failure, a force of at 
least 200 pounds (890 N) applied in any downward or outward direction 
within 2 inches (5 cm) of any point along the top edge of the rail.

BILLING CODE 4510-29-P

[[Page 82996]]

[GRAPHIC] [TIFF OMITTED] TR18NO16.357


 
 
 
             Figure D-13 - Combination Handrail and Stair Rail
 

BILLING CODE 4510-29-C

    (g) Cages, wells, and platforms used with fixed ladders. The 
employer must ensure:
    (1) Cages and wells installed on fixed ladders are designed, 
constructed, and maintained to permit easy access to, and egress from, 
the ladder that they enclose (see Figures D-14 and D-15 of this 
section);
    (2) Cages and wells are continuous throughout the length of the 
fixed ladder, except for access, egress, and other transfer points;
    (3) Cages and wells are designed, constructed, and maintained to 
contain employees in the event of a fall, and to direct them to a lower 
landing; and
    (4) Platforms used with fixed ladders provide a horizontal surface 
of at least 24 inches by 30 inches (61 cm by 76 cm).

    Note to paragraph (g):  Section 1910.28 establishes the 
requirements that employers must follow on the use of cages and 
wells as a means of fall protection.


[[Page 82997]]


[GRAPHIC] [TIFF OMITTED] TR18NO16.358

[GRAPHIC] [TIFF OMITTED] TR18NO16.359

    (h) Outdoor advertising. This paragraph (h) applies only to 
employers engaged in outdoor advertising operations (see Sec.  
1910.28(b)(10)). Employers must ensure that each employee who climbs a 
fixed ladder without fall protection:
    (1) Is physically capable, as demonstrated through observations of 
actual climbing activities or by a physical examination, to perform the 
duties that may be assigned, including climbing fixed ladders without 
fall protection;
    (2) Has successfully completed a training or apprenticeship program 
that includes hands-on training on the safe climbing of ladders and is 
retrained as necessary to maintain the necessary skills;
    (3) Has the skill to climb ladders safely, as demonstrated through 
formal classroom training or on-the-job training, and performance 
observation; and
    (4) Performs climbing duties as a part of routine work activity.
    (i) Ladder safety systems. The employer must ensure:
    (1) Each ladder safety system allows the employee to climb up and 
down using both hands and does not require that the employee 
continuously hold, push, or pull any part of the system while climbing;
    (2) The connection between the carrier or lifeline and the point of 
attachment to the body harness or belt does not exceed 9 inches (23 
cm);
    (3) Mountings for rigid carriers are attached at each end of the 
carrier, with intermediate mountings spaced, as necessary, along the 
entire length of the carrier so the system has the strength to stop 
employee falls;
    (4) Mountings for flexible carriers are attached at each end of the 
carrier and cable guides for flexible carriers are installed at least 
25 feet (7.6 m) apart but not more than 40 feet (12.2 m) apart along 
the entire length of the carrier;
    (5) The design and installation of mountings and cable guides does 
not reduce the design strength of the ladder; and
    (6) Ladder safety systems and their support systems are capable of 
withstanding, without failure, a drop test consisting of an 18-inch 
(41-cm) drop of a 500-pound (227-kg) weight.
    (j) Personal fall protection systems. Body belts, harnesses, and 
other components used in personal fall arrest systems, work positioning 
systems, and travel restraint systems must meet the requirements of 
Sec.  1910.140.
    (k) Protection from falling objects. (1) The employers must ensure 
toeboards used for falling object protection:
    (i) Are erected along the exposed edge of the overhead walking-
working surface for a length that is sufficient to protect employees 
below.
    (ii) Have a minimum vertical height of 3.5 inches (9 cm) as 
measured from the top edge of the toeboard to the level of the walking-
working surface.
    (iii) Do not have more than a 0.25-inch (0.5-cm) clearance or 
opening above the walking-working surface.

[[Page 82998]]

    (iv) Are solid or do not have any opening that exceeds 1 inch (3 
cm) at its greatest dimension.
    (v) Have a minimum height of 2.5 inches (6 cm) when used around 
vehicle repair, service, or assembly pits. Toeboards may be omitted 
around vehicle repair, service, or assembly pits when the employer can 
demonstrate that a toeboard would prevent access to a vehicle that is 
over the pit.
    (vi) Are capable of withstanding, without failure, a force of at 
least 50 pounds (222 N) applied in any downward or outward direction at 
any point along the toeboard.
    (2) The employer must ensure:
    (i) Where tools, equipment, or materials are piled higher than the 
top of the toeboard, paneling or screening is installed from the 
toeboard to the midrail of the guardrail system and for a length that 
is sufficient to protect employees below. If the items are piled higher 
than the midrail, the employer also must install paneling or screening 
to the top rail and for a length that is sufficient to protect 
employees below; and
    (ii) All openings in guardrail systems are small enough to prevent 
objects from falling through the opening.
    (3) The employer must ensure canopies used for falling object 
protection are strong enough to prevent collapse and to prevent 
penetration by falling objects.
    (l) Grab handles. The employer must ensure each grab handle:
    (1) Is not less than 12 inches (30 cm) long;
    (2) Is mounted to provide at least 3 inches (8 cm) of clearance 
from the framing or opening; and
    (3) Is capable of withstanding a maximum horizontal pull-out force 
equal to two times the maximum intended load or 200 pounds (890 N), 
whichever is greater.


Sec.  1910.30  Training requirements.

    (a) Fall hazards. (1) Before any employee is exposed to a fall 
hazard, the employer must provide training for each employee who uses 
personal fall protection systems or who is required to be trained as 
specified elsewhere in this subpart. Employers must ensure employees 
are trained in the requirements of this paragraph on or before May 17, 
2017.
    (2) The employer must ensure that each employee is trained by a 
qualified person.
    (3) The employer must train each employee in at least the following 
topics:
    (i) The nature of the fall hazards in the work area and how to 
recognize them;
    (ii) The procedures to be followed to minimize those hazards;
    (iii) The correct procedures for installing, inspecting, operating, 
maintaining, and disassembling the personal fall protection systems 
that the employee uses; and
    (iv) The correct use of personal fall protection systems and 
equipment specified in paragraph (a)(1) of this section, including, but 
not limited to, proper hook-up, anchoring, and tie-off techniques, and 
methods of equipment inspection and storage, as specified by the 
manufacturer.
    (b) Equipment hazards. (1) The employer must train each employee on 
or before May 17, 2017 in the proper care, inspection, storage, and use 
of equipment covered by this subpart before an employee uses the 
equipment.
    (2) The employer must train each employee who uses a dockboard to 
properly place and secure it to prevent unintentional movement.
    (3) The employer must train each employee who uses a rope descent 
system in proper rigging and use of the equipment in accordance with 
Sec.  1910.27.
    (4) The employer must train each employee who uses a designated 
area in the proper set-up and use of the area.
    (c) Retraining. The employer must retrain an employee when the 
employer has reason to believe the employee does not have the 
understanding and skill required by paragraphs (a) and (b) of this 
section. Situations requiring retraining include, but are not limited 
to, the following:
    (1) When changes in the workplace render previous training obsolete 
or inadequate;
    (2) When changes in the types of fall protection systems or 
equipment to be used render previous training obsolete or inadequate; 
or
    (3) When inadequacies in an affected employee's knowledge or use of 
fall protection systems or equipment indicate that the employee no 
longer has the requisite understanding or skill necessary to use 
equipment or perform the job safely.
    (d) Training must be understandable. The employer must provide 
information and training to each employee in a manner that the employee 
understands.

Subpart F--[Amended]

0
4. Revise the authority citation for subpart F to read as follows:

    Authority: 29 U.S.C. 653, 655, and 657; Secretary of Labor's 
Order No. 12-71 (36 FR 8754), 8-76 (41 FR 25059), 9-83 (48 FR 
35736), 1-90 (55 FR 9033), 5-2007 (72 FR 31159), or 1-2012 (77 FR 
3912), as applicable; and 29 CFR part 1911.


0
5. In Sec.  1910.66:
0
a. Revise paragraphs (b)(2)(i), (c)(3), (f)(5)(ii)(L) and (M), 
(f)(5)(iii)(B), and (j);
0
b. Remove and reserve appendix C; and
0
c. Revise appendix D, paragraph (c)(4).
    The revisions read as follows:


Sec.  1910.66  Powered platforms for building maintenance.

* * * * *
    (b) * * *
    (2) * * *
    (i) Permanent installations in existence and/or completed before 
July 23, 1990 shall comply with paragraphs (g), (h), (i), (j) and 
appendix C to subpart I of this part.
* * * * *
    (c) * * *
    (3) Building owners of all installations, new and existing, shall 
inform the employer in writing that the installation has been 
inspected, tested, and maintained in compliance with the requirements 
of paragraphs (g) and (h) of this section and that all anchorages meet 
the requirements of Sec.  1910.140(c)(13).
* * * * *
    (f) * * *
    (5) * * *
    (ii) * * *
    (L) The platform shall be provided with a secondary wire rope 
suspension system if the platform contains overhead structures which 
restrict the emergency egress of employees. A horizontal lifeline or a 
direct connection anchorage shall be provided as part of a personal 
fall arrest system that meets the requirements of subpart I of this 
part for each employee on such a platform.
    (M) A vertical lifeline shall be provided as part of a personal 
fall arrest system that meets the requirements of subpart I of this 
part for each employee on a working platform suspended by two or more 
wire ropes, if the failure of one wire rope or suspension attachment 
will cause the platform to upset. If a secondary wire rope suspension 
is used, vertical lifelines are not required for the personal fall 
arrest system, provided that each employee is attached to a horizontal 
lifeline anchored to the platform.
* * * * *
    (iii) * * *
    (B) Each single point suspended working platform shall be provided 
with a secondary wire rope suspension system which will prevent the 
working platform from falling should there be a failure of the primary 
means of support, or if the platform contains overhead structures which 
restrict the egress of

[[Page 82999]]

the employees. A horizontal life line or a direct connection anchorage 
shall be provided as part of a personal fall arrest system that meets 
the requirements of subpart I of this part for each employee on the 
platform.
* * * * *
    (j) Personal fall protection. Employees on working platforms shall 
be protected by a personal fall arrest system meeting the requirements 
of subpart I of this part and as otherwise provided by this standard.
* * * * *

Appendix C to Sec.  1910.66 [Reserved]

Appendix D to Sec.  1910.66--Existing Installations (Mandatory)

* * * * *
    (c) * * *
    (4) Access to the roof car. Safe access to the roof car and from 
the roof car to the working platform shall be provided. If the 
access to the roof car at any point of its travel is not over the 
roof area or where otherwise necessary for safety, then self-
closing, self-locking gates shall be provided. Access to and from 
roof cars must comply with the requirements of subpart D of this 
part.
* * * * *

0
6. In Sec.  1910.67, revise paragraph (c)(2)(v) to read as follows:


Sec.  1910.67  Vehicle-mounted elevating and rotating work platforms.

* * * * *
    (c) * * *
    (2) * * *
    (v) A personal fall arrest or travel restraint system that meets 
the requirements in subpart I of this part shall be worn and attached 
to the boom or basket when working from an aerial lift.
* * * * *

0
7. In Sec.  1910.68, revise paragraphs (b)(8)(ii) and (b)(12) to read 
as follows:


Sec.  1910.68  Manlifts.

* * * * *
    (b) * * *
    (8) * * *
    (ii) Construction. The rails shall be standard guardrails with 
toeboards that meet the requirements in subpart D of this part.
* * * * *
    (12) Emergency exit ladder. A fixed metal ladder accessible from 
both the ``up'' and ``down'' run of the manlift shall be provided for 
the entire travel of the manlift. Such ladders shall meet the 
requirements in subpart D of this part.
* * * * *

Subpart I--[Amended]

0
8. Revise the authority citation for subpart I to read as follows:

    Authority: 29 U.S.C. 653, 655, 657; Secretary of Labor's Order 
No. 12-71 (36 FR 8754), 8-76 (41 FR 25059), 9-83 (48 FR 35736), 1-90 
(55 FR 9033), 6-96 (62 FR 111), 3-2000 (65 FR 50017), 5-2002 (67 FR 
65008), 5-2007 (72 FR 31159), 4-2010 (75 FR 55355), or 1-2012 (77 FR 
3912), as applicable; and 29 CFR part 1911.

0
9. In Sec.  1910.132, revise paragraph (g) to read as follows:


Sec.  1910.132  General requirements.

* * * * *
    (g) Paragraphs (d) and (f) of this section apply only to Sec. Sec.  
1910.133, 1910.135, 1910.136, 1910.138, and 1910.140. Paragraphs (d) 
and (f) of this section do not apply to Sec. Sec.  1910.134 and 
1910.137.
* * * * *


Sec.  1910.139  [Added and Reserved]

0
10. Add reserved Sec.  1910.139.

0
11. Add Sec.  1910.140 to read as follows:


Sec.  1910.140  Personal fall protection systems.

    (a) Scope and application. This section establishes performance, 
care, and use criteria for all personal fall protection systems. The 
employer must ensure that each personal fall protection system used to 
comply with this part must meet the requirements of this section.
    (b) Definitions. The following definitions apply to this section:
    Anchorage means a secure point of attachment for equipment such as 
lifelines, lanyards, or deceleration devices.
    Belt terminal means an end attachment of a window cleaner's 
positioning system used for securing the belt or harness to a window 
cleaner's belt anchor.
    Body belt means a strap with means both for securing about the 
waist and for attaching to other components such as a lanyard used with 
positioning systems, travel restraint systems, or ladder safety 
systems.
    Body harness means straps that secure about the employee in a 
manner to distribute the fall arrest forces over at least the thighs, 
pelvis, waist, chest, and shoulders, with a means for attaching the 
harness to other components of a personal fall protection system.
    Carabiner means a connector generally comprised of a trapezoidal or 
oval shaped body with a closed gate or similar arrangement that may be 
opened to attach another object and, when released, automatically 
closes to retain the object.
    Competent person means a person who is capable of identifying 
existing and predictable hazards in any personal fall protection system 
or any component of it, as well as in their application and uses with 
related equipment, and who has authorization to take prompt, corrective 
action to eliminate the identified hazards.
    Connector means a device used to couple (connect) parts of the fall 
protection system together.
    D-ring means a connector used:
    (i) In a harness as an integral attachment element or fall arrest 
attachment;
    (ii) In a lanyard, energy absorber, lifeline, or anchorage 
connector as an integral connector; or
    (iii) In a positioning or travel restraint system as an attachment 
element.
    Deceleration device means any mechanism that serves to dissipate 
energy during a fall.
    Deceleration distance means the vertical distance a falling 
employee travels from the point at which the deceleration device begins 
to operate, excluding lifeline elongation and free fall distance, until 
stopping. It is measured as the distance between the location of an 
employee's body harness attachment point at the moment of activation 
(at the onset of fall arrest forces) of the deceleration device during 
a fall, and the location of that attachment point after the employee 
comes to a full stop.
    Equivalent means alternative designs, equipment, materials, or 
methods that the employer can demonstrate will provide an equal or 
greater degree of safety for employees compared to the designs, 
equipment, materials, or methods specified in the standard.
    Free fall means the act of falling before the personal fall arrest 
system begins to apply force to arrest the fall.
    Free fall distance means the vertical displacement of the fall 
arrest attachment point on the employee's body belt or body harness 
between onset of the fall and just before the system begins to apply 
force to arrest the fall. This distance excludes deceleration distance, 
lifeline and lanyard elongation, but includes any deceleration device 
slide distance or self-retracting lifeline/lanyard extension before the 
devices operate and fall arrest forces occur.
    Lanyard means a flexible line of rope, wire rope, or strap that 
generally has a connector at each end for connecting the body belt or 
body harness to a deceleration device, lifeline, or anchorage.
    Lifeline means a component of a personal fall protection system 
consisting of a flexible line for connection to an anchorage at one end 
so as to hang vertically (vertical

[[Page 83000]]

lifeline), or for connection to anchorages at both ends so as to 
stretch horizontally (horizontal lifeline), and serves as a means for 
connecting other components of the system to the anchorage.
    Personal fall arrest system means a system used to arrest an 
employee in a fall from a walking-working surface. It consists of a 
body harness, anchorage, and connector. The means of connection may 
include a lanyard, deceleration device, lifeline, or a suitable 
combination of these.
    Personal fall protection system means a system (including all 
components) an employer uses to provide protection from falling or to 
safely arrest an employee's fall if one occurs.
    Examples of personal fall protection systems include personal fall 
arrest systems, positioning systems, and travel restraint systems.
    Positioning system (work-positioning system) 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.''
    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.
    Rope grab means a deceleration device that travels on a lifeline 
and automatically, by friction, engages the lifeline and locks so as to 
arrest the fall of an employee. A rope grab usually employs the 
principle of inertial locking, cam/lever locking, or both.
    Safety factor means the ratio of the design load and the ultimate 
strength of the material.
    Self-retracting lifeline/lanyard means a deceleration device 
containing a drum-wound line that can be slowly extracted from, or 
retracted onto, the drum under slight tension during normal movement by 
the employee. At the onset of a fall, the device automatically locks 
the drum and arrests the fall.
    Snaphook means a connector comprised of a hook-shaped body with a 
normally closed gate, or similar arrangement that may be manually 
opened to permit the hook to receive an object. When released, the 
snaphook automatically closes to retain the object. Opening a snaphook 
requires two separate actions. Snaphooks are generally one of two 
types:
    (i) Automatic-locking type (permitted) with a self-closing and 
self-locking gate that remains closed and locked until intentionally 
unlocked and opened for connection or disconnection; and
    (ii) Non-locking type (prohibited) with a self-closing gate that 
remains closed, but not locked, until intentionally opened for 
connection or disconnection.
    Travel restraint (tether) line means a rope or wire rope used to 
transfer forces from a body support to an anchorage or anchorage 
connector in a travel restraint system.
    Travel restraint system means a combination of an anchorage, 
anchorage connector, lanyard (or other means of connection), and body 
support that an employer uses to eliminate the possibility of an 
employee going over the edge of a walking-working surface.
    Window cleaner's belt means a positioning belt that consists of a 
waist belt, an integral terminal runner or strap, and belt terminals.
    Window cleaner's belt anchor (window anchor) means specifically 
designed fall-preventing attachment points permanently affixed to a 
window frame or to a building part immediately adjacent to the window 
frame, for direct attachment of the terminal portion of a window 
cleaner's belt.
    Window cleaner's positioning system means a system which consists 
of a window cleaner's belt secured to window anchors.
    Work-positioning system (see Positioning system in this paragraph 
(b)).
    (c) General requirements. The employer must ensure that personal 
fall protection systems meet the following requirements. Additional 
requirements for personal fall arrest systems and positioning systems 
are contained in paragraphs (d) and (e) of this section, respectively.
    (1) Connectors must be drop forged, pressed or formed steel, or 
made of equivalent materials.
    (2) Connectors must have a corrosion-resistant finish, and all 
surfaces and edges must be smooth to prevent damage to interfacing 
parts of the system.
    (3) When vertical lifelines are used, each employee must be 
attached to a separate lifeline.
    (4) Lanyards and vertical lifelines must have a minimum breaking 
strength of 5,000 pounds (22.2 kN).
    (5) Self-retracting lifelines and lanyards that automatically limit 
free fall distance to 2 feet (0.61 m) or less must have components 
capable of sustaining a minimum tensile load of 3,000 pounds (13.3 kN) 
applied to the device with the lifeline or lanyard in the fully 
extended position.
    (6) A competent person or qualified person must inspect each knot 
in a lanyard or vertical lifeline to ensure that it meets the 
requirements of paragraphs (c)(4) and (5) of this section before any 
employee uses the lanyard or lifeline.
    (7) D-rings, snaphooks, and carabiners must be capable of 
sustaining a minimum tensile load of 5,000 pounds (22.2 kN).
    (8) D-rings, snaphooks, and carabiners must be proof tested to a 
minimum tensile load of 3,600 pounds (16 kN) without cracking, 
breaking, or incurring permanent deformation. The gate strength of 
snaphooks and carabiners, must be proof tested to 3,600 lbs. (16 kN) in 
all directions.
    (9) Snaphooks and carabiners must be the automatic locking type 
that require at least two separate, consecutive movements to open.
    (10) Snaphooks and carabiners must not be connected to any of the 
following unless they are designed for such connections:
    (i) Directly to webbing, rope, or wire rope;
    (ii) To each other;
    (iii) To a D-ring to which another snaphook, carabiner, or 
connector is attached;
    (iv) To a horizontal life line; or
    (v) To any object that is incompatibly shaped or dimensioned in 
relation to the snaphook or carabiner such that unintentional 
disengagement could occur when the connected object depresses the 
snaphook or carabiner gate, allowing the components to separate.
    (11) The employer must ensure that each horizontal lifeline:
    (i) Is designed, installed, and used under the supervision of a 
qualified person; and
    (ii) Is part of a complete personal fall arrest system that 
maintains a safety factor of at least two.
    (12) Anchorages used to attach to personal fall protection 
equipment must be independent of any anchorage used to suspend 
employees or platforms on which employees work. Anchorages used to 
attach to personal fall protection equipment on mobile work platforms 
on powered industrial trucks must be attached to an overhead member of 
the platform, at a point located above and near the center of the 
platform.
    (13) Anchorages, except window cleaners' belt anchors covered by 
paragraph (e) of this section, must be:
    (i) Capable of supporting at least 5,000 pounds (22.2 kN) for each 
employee attached; or
    (ii) Designed, installed, and used, under the supervision of 
qualified

[[Page 83001]]

person, as part of a complete personal fall protection system that 
maintains a safety factor of at least two.
    (14) Travel restraint lines must be capable of sustaining a tensile 
load of at least 5,000 pounds (22.2 kN).
    (15) Lifelines must not be made of natural fiber rope. 
Polypropylene rope must contain an ultraviolet (UV) light inhibitor.
    (16) Personal fall protection systems and their components must be 
used exclusively for employee fall protection and not for any other 
purpose, such as hoisting equipment or materials.
    (17) A personal fall protection system or its components subjected 
to impact loading must be removed from service immediately and not used 
again until a competent person inspects the system or components and 
determines that it is not damaged and safe for use for employee 
personal fall protection.
    (18) Personal fall protection systems must be inspected before 
initial use during each workshift for mildew, wear, damage, and other 
deterioration, and defective components must be removed from service.
    (19) Ropes, belts, lanyards, and harnesses used for personal fall 
protection must be compatible with all connectors used.
    (20) Ropes, belts, lanyards, lifelines, and harnesses used for 
personal fall protection must be protected from being cut, abraded, 
melted, or otherwise damaged.
    (21) The employer must provide for prompt rescue of each employee 
in the event of a fall.
    (22) Personal fall protection systems must be worn with the 
attachment point of the body harness located in the center of the 
employee's back near shoulder level. The attachment point may be 
located in the pre-sternal position if the free fall distance is 
limited to 2 feet (0.6 m) or less.
    (d) Personal fall arrest systems--(1) System performance criteria. 
In addition to the general requirements in paragraph (c) of this 
section, the employer must ensure that personal fall arrest systems:
    (i) Limit the maximum arresting force on the employee to 1,800 
pounds (8 kN);
    (ii) Bring the employee to a complete stop and limit the maximum 
deceleration distance the employee travels to 3.5 feet (1.1 m);
    (iii) Have sufficient strength to withstand twice the potential 
impact energy of the employee free falling a distance of 6 feet (1.8 
m), or the free fall distance permitted by the system; and
    (iv) Sustain the employee within the system/strap configuration 
without making contact with the employee's neck and chin area.
    (v) If the personal fall arrest system meets the criteria and 
protocols in appendix D of this subpart, and is being used by an 
employee having a combined body and tool weight of less than 310 pounds 
(140 kg), the system is considered to be in compliance with the 
provisions of paragraphs (d)(1)(i) through (iii) of this section. If 
the system is used by an employee having a combined body and tool 
weight of 310 pounds (140kg) or more and the employer has appropriately 
modified the criteria and protocols in appendix D, then the system will 
be deemed to be in compliance with the requirements of paragraphs 
(d)(1)(i) through (iii).
    (2) System use criteria. The employer must ensure that:
    (i) On any horizontal lifeline that may become a vertical lifeline, 
the device used to connect to the horizontal lifeline is capable of 
locking in both directions on the lifeline.
    (ii) Personal fall arrest systems are rigged in such a manner that 
the employee cannot free fall more than 6 feet (1.8 m) or contact a 
lower level. A free fall may be more than 6 feet (1.8 m) provided the 
employer can demonstrate the manufacturer designed the system to allow 
a free fall of more than 6 feet and tested the system to ensure a 
maximum arresting force of 1,800 pounds (8 kN) is not exceeded.
    (3) Body belts. Body belts are prohibited as part of a personal 
fall arrest system.
    (e) Positioning systems--(1) System performance requirements. The 
employer must ensure that each positioning system meets the following 
requirements:
    (i) General. All positioning systems, except window cleaners' 
positioning systems, are capable of withstanding, without failure, a 
drop test consisting of a 4-foot (1.2-m) drop of a 250-pound (113-kg) 
weight;
    (ii) Window cleaners' positioning systems. All window cleaners' 
positioning systems must:
    (A) Be capable of withstanding without failure a drop test 
consisting of a 6-foot (1.8-m) drop of a 250-pound (113-kg) weight; and
    (B) Limit the initial arresting force on the falling employee to 
not more than 2,000 pounds (8.9 kN), with a duration not exceeding 2 
milliseconds and any subsequent arresting forces to not more than 1,000 
pounds (4.5 kN).
    (iii) Positioning systems, including window cleaners' positioning 
systems, that meet the test methods and procedures in appendix D of 
this subpart are considered to be in compliance with paragraphs 
(e)(1)(i) and (ii).
    (iv) Lineman's body belt and pole strap systems. Lineman's body 
belt and pole strap systems must meet the following tests:
    (A) A dielectric test of 819.7 volts, AC, per centimeter (25,000 
volts per foot) for 3 minutes without visible deterioration;
    (B) A leakage test of 98.4 volts, AC, per centimeter (3,000 volts 
per foot) with a leakage current of no more than 1 mA; and
    (C) A flammability test in accordance with Table I-7 of this 
section.

[[Page 83002]]

[GRAPHIC] [TIFF OMITTED] TR18NO16.360

    (2) System use criteria for window cleaners' positioning systems. 
The employer must ensure that window cleaners' positioning systems meet 
and are used in accordance with the following:
    (i) Window cleaners' belts are designed and constructed so that:
    (A) Belt terminals will not pass through their fastenings on the 
belt or harness if a terminal comes loose from the window anchor; and
    (B) The length of the runner from terminal tip to terminal tip is 8 
feet (2.44 m) or less;
    (ii) Window anchors to which belts are fastened are installed in 
the side frames or mullions of the window at a point not less than 42 
inches (106.7 cm) and not more than 51 inches (129.5 cm) above the 
window sill;
    (iii) Each window anchor is capable of supporting a minimum load of 
6,000 pounds (26.5 kN);
    (iv) Use of installed window anchors for any purpose other than 
attaching the window cleaner's belt is prohibited;
    (v) A window anchor that has damaged or deteriorated fastenings or 
supports is removed, or the window anchor head is detached so the 
anchor cannot be used;
    (vi) Rope that has wear or deterioration that affects its strength 
is not used;
    (vii) Both terminals of the window cleaner's belt are attached to 
separate window anchors during any cleaning operation;
    (viii) No employee works on a window sill or ledge on which there 
is snow, ice, or any other slippery condition, or one that is weakened 
or rotted;
    (ix) No employee works on a window sill or ledge unless:
    (A) The window sill or ledge is a minimum of 4 inches (10 cm) wide 
and slopes no more than 15 degrees below horizontal; or
    (B) The 4-inch minimum width of the window sill or ledge is 
increased 0.4 inches (1 cm) for every degree the sill or ledge slopes 
beyond 15 degrees, up to a maximum of 30 degrees;
    (x) The employee attaches at least one belt terminal to a window 
anchor before climbing through the window opening, and keeps at least 
one terminal attached until completely back inside the window opening;
    (xi) Except as provided in paragraph (e)(2)(xii) of this section, 
the employee travels from one window to another by returning inside the 
window opening and repeating the belt terminal attachment procedure at 
each window in accordance with paragraph (e)(2)(x) of this section;
    (xii) An employee using a window cleaner's positioning system may 
travel from one window to another while outside of the building, 
provided:
    (A) At least one belt terminal is attached to a window anchor at 
all times;
    (B) The distance between window anchors does not exceed 4 feet (1.2 
m) horizontally. The distance between windows may be increased up to 6 
feet (1.8 m) horizontally if the window sill or ledge is at least 1 
foot (0.31 m) wide and the slope is less than 5 degrees;
    (C) The sill or ledge between windows is continuous; and
    (D) The width of the window sill or ledge in front of the mullions 
is at least 6 inches (15.2 cm) wide.

0
12. Add appendices C and D to subpart I of part 1910 to read as 
follows:

Appendix C to Subpart I of Part 1910--Personal Fall Protection Systems 
Non-Mandatory Guidelines

    The following information generally applies to all personal fall 
protection systems and is intended to assist employers and employees 
comply with the requirements of Sec.  1910.140 for personal fall 
protection systems.
    (a) Planning considerations. It is important for employers to 
plan prior to using personal fall protection systems. Probably the 
most overlooked component of planning is locating suitable anchorage 
points. Such planning should ideally be done before the structure or 
building is constructed so that anchorage points can be used later 
for window cleaning or other building maintenance.
    (b) Selection and use considerations. (1) The kind of personal 
fall protection system

[[Page 83003]]

selected should be appropriate for the employee's specific work 
situation. Free fall distances should always be kept to a minimum. 
Many systems are designed for particular work applications, such as 
climbing ladders and poles; maintaining and servicing equipment; and 
window cleaning. Consideration should be given to the environment in 
which the work will be performed. For example, the presence of 
acids, dirt, moisture, oil, grease, or other substances, and their 
potential effects on the system selected, should be evaluated. The 
employer should fully evaluate the work conditions and environment 
(including seasonal weather changes) before selecting the 
appropriate personal fall protection system. Hot or cold 
environments may also affect fall protection systems. Wire rope 
should not be used where electrical hazards are anticipated. As 
required by Sec.  1910.140(c)(21), the employer must provide a means 
for promptly rescuing an employee should a fall occur.
    (2) Where lanyards, connectors, and lifelines are subject to 
damage by work operations, such as welding, chemical cleaning, and 
sandblasting, the component should be protected, or other securing 
systems should be used. A program for cleaning and maintaining the 
system may be necessary.
    (c) Testing considerations. Before purchasing a personal fall 
protection system, an employer should insist that the supplier 
provide information about its test performance (using recognized 
test methods) so the employer will know that the system meets the 
criteria in Sec.  1910.140. Otherwise, the employer should test the 
equipment to ensure that it is in compliance. Appendix D to this 
subpart contains test methods which are recommended for evaluating 
the performance of any system. There are some circumstances in which 
an employer can evaluate a system based on data and calculations 
derived from the testing of similar systems. Enough information must 
be available for the employer to demonstrate that its system and the 
tested system(s) are similar in both function and design.
    (d) Component compatibility considerations. Ideally, a personal 
fall protection system is designed, tested, and supplied as a 
complete system. However, it is common practice for lanyards, 
connectors, lifelines, deceleration devices, body belts, and body 
harnesses to be interchanged since some components wear out before 
others. Employers and employees should realize that not all 
components are interchangeable. For instance, a lanyard should not 
be connected between a body harness and a deceleration device of the 
self-retracting type (unless specifically allowed by the 
manufacturer) since this can result in additional free fall for 
which the system was not designed. In addition, positioning 
components, such as pole straps, ladder hooks and rebar hooks, 
should not be used in personal fall arrest systems unless they meet 
the appropriate strength and performance requirements of part 1910 
(e.g., Sec. Sec.  1910.140, 1910.268 and 1910.269). Any substitution 
or change to a personal fall protection system should be fully 
evaluated or tested by a competent person to determine that it meets 
applicable OSHA standards before the modified system is put in use. 
Also, OSHA suggests that rope be used according to manufacturers' 
recommendations, especially if polypropylene rope is used.
    (e) Employee training considerations. As required by Sec. Sec.  
1910.30 and 1910.132, before an employee uses a fall protection 
system, the employer must ensure that he or she is trained in the 
proper use of the system. This may include the following: The limits 
of the system; proper anchoring and tie-off techniques; estimating 
free fall distance, including determining elongation and 
deceleration distance; methods of use; and inspection and storage. 
Careless or improper use of fall protection equipment can result in 
serious injury or death. Employers and employees should become 
familiar with the material in this standard and appendix, as well as 
manufacturers' recommendations, before a system is used. It is 
important for employees to be aware that certain tie-offs (such as 
using knots and tying around sharp edges) can reduce the overall 
strength of a system. Employees also need to know the maximum 
permitted free fall distance. Training should stress the importance 
of inspections prior to use, the limitations of the equipment to be 
used, and unique conditions at the worksite that may be important.
    (f) Instruction considerations. Employers should obtain 
comprehensive instructions from the supplier or a qualified person 
as to the system's proper use and application, including, where 
applicable:
    (1) The force measured during the sample force test;
    (2) The maximum elongation measured for lanyards during the 
force test;
    (3) The deceleration distance measured for deceleration devices 
during the force test;
    (4) Caution statements on critical use limitations;
    (5) Limits of the system;
    (6) Proper hook-up, anchoring and tie-off techniques, including 
the proper D-ring or other attachment point to use on the body 
harness;
    (7) Proper climbing techniques;
    (8) Methods of inspection, use, cleaning, and storage; and
    (9) Specific lifelines that may be used.
    (g) Inspection considerations. Personal fall protection systems 
must be inspected before initial use in each workshift. Any 
component with damage, such as a cut, tear, abrasion, mold, or 
evidence of undue stretching, an alteration or addition that might 
affect its effectiveness, damage due to deterioration, fire, acid, 
or other corrosive damage, distorted hooks or faulty hook springs, 
tongues that are unfitted to the shoulder of buckles, loose or 
damaged mountings, non-functioning parts, or wear, or internal 
deterioration must be removed from service immediately, and should 
be tagged or marked as unusable, or destroyed. Any personal fall 
protection system, including components, subjected to impact loading 
must be removed from service immediately and not used until a 
competent person inspects the system and determines that it is not 
damaged and is safe to use for personal fall protection.
    (h) Rescue considerations. As required by Sec.  1910.140(c)(21), 
when personal fall arrest systems are used, special consideration 
must be given to rescuing an employee promptly should a fall occur. 
The availability of rescue personnel, ladders, or other rescue 
equipment needs to be evaluated since there may be instances in 
which employees cannot self-rescue (e.g., employee unconscious or 
seriously injured). In some situations, equipment allowing employees 
to rescue themselves after the fall has been arrested may be 
desirable, such as devices that have descent capability.
    (i) Tie-off considerations. Employers and employees should at 
all times be aware that the strength of a personal fall arrest 
system is based on its being attached to an anchoring system that 
can support the system. Therefore, if a means of attachment is used 
that will reduce the strength of the system (such as an eye-bolt/
snaphook anchorage), that component should be replaced by a stronger 
one that will also maintain the appropriate maximum deceleration 
characteristics. The following is a listing of some situations in 
which employers and employees should be especially cautious:
    (1) Tie-off using a knot in the lanyard or lifeline (at any 
location). The strength of the line can be reduced by 50 percent or 
more if a knot is used. Therefore, a stronger lanyard or lifeline 
should be used to compensate for the knot, or the lanyard length 
should be reduced (or the tie-off location raised) to minimize free 
fall distance, or the lanyard or lifeline should be replaced by one 
which has an appropriately incorporated connector to eliminate the 
need for a knot.
    (2) Tie-off around rough or sharp (e.g., ``H'' or ``I'' beams) 
surfaces. Sharp or rough surfaces can damage rope lines and this 
reduces strength of the system drastically. Such tie-offs should be 
avoided whenever possible. An alternate means should be used such as 
a snaphook/D-ring connection, a tie-off apparatus (steel cable tie-
off), an effective padding of the surfaces, or an abrasion-resistant 
strap around the supporting member. If these alternative means of 
tie-off are not available, the employer should try to minimize the 
potential free fall distance.
    (3) Knots. Sliding hitch knots should not be used except in 
emergency situations. The one-and-one sliding hitch knot should 
never be used because it is unreliable in stopping a fall. The two-
and-two, or three-and-three knots (preferable) may be used in 
emergency situations; however, care should be taken to limit free 
fall distances because of reduced lifeline/lanyard strength. OSHA 
requires that a competent or qualified person inspect each knot in a 
lanyard or vertical lifeline to ensure it meets the strength 
requirements in Sec.  1910.140.
    (j) Horizontal lifelines. Horizontal lifelines, depending on 
their geometry and angle of sag, may be subjected to greater loads 
than the impact load imposed by an attached component. When the 
angle of horizontal lifeline sag is less than 30 degrees, the impact 
force imparted to the lifeline by an attached lanyard is greatly 
amplified. For example, with a sag angle of 15 degrees the force 
amplification is about 2:1, and at 5 degrees sag it is about 6:1. 
Depending on the angle of sag, and the line's elasticity, the 
strength

[[Page 83004]]

of the horizontal lifeline, and the anchorages to which it is 
attached should be increased a number of times over that of the 
lanyard. Extreme care should be taken in considering a horizontal 
lifeline for multiple tie-offs. If there are multiple tie-offs to a 
horizontal lifeline, and one employee falls, the movement of the 
falling employee and the horizontal lifeline during arrest of the 
fall may cause other employees to fall. Horizontal lifeline and 
anchorage strength should be increased for each additional employee 
to be tied-off. For these and other reasons, the systems using 
horizontal lifelines must be designed only by qualified persons. 
OSHA recommends testing installed lifelines and anchors prior to 
use. OSHA requires that horizontal lifelines are designed, installed 
and used under the supervision of a qualified person.
    (k) Eye-bolts. It must be recognized that the strength of an 
eye-bolt is rated along the axis of the bolt, and that its strength 
is greatly reduced if the force is applied at right angles to this 
axis (in the direction of its shear strength). Care should also be 
exercised in selecting the proper diameter of the eye to avoid 
creating a roll-out hazard (accidental disengagement of the snaphook 
from the eye-bolt).
    (l) Vertical lifeline considerations. As required by Sec.  
1910.140(c)(3), each employee must have a separate lifeline when the 
lifeline is vertical. If multiple tie-offs to a single lifeline are 
used, and one employee falls, the movement of the lifeline during 
the arrest of the fall may pull other employees' lanyards, causing 
them to fall as well.
    (m) Snaphook and carabiner considerations. As required by Sec.  
1910.140(c)(10), the following connections must be avoided unless 
the locking snaphook or carabiner has been designed for them because 
they are conditions that can result in rollout:
    (1) Direct connection to webbing, rope, or a horizontal 
lifeline;
    (2) Two (or more) snaphooks or carabiners connected to one D-
ring;
    (3) Two snaphooks or carabiners connected to each other;
    (4) Snaphooks or carabiners connected directly to webbing, rope, 
or wire rope; and
    (5) Improper dimensions of the D-ring, rebar, or other 
connection point in relation to the snaphook or carabiner dimensions 
which would allow the gate to be depressed by a turning motion.
    (n) Free fall considerations. Employers and employees should 
always be aware that a system's maximum arresting force is evaluated 
under normal use conditions established by the manufacturer. OSHA 
requires that personal fall arrest systems be rigged so an employee 
cannot free fall in excess of 6 feet (1.8 m). Even a few additional 
feet of free fall can significantly increase the arresting force on 
the employee, possibly to the point of causing injury and possibly 
exceeding the strength of the system. Because of this, the free fall 
distance should be kept to a minimum, and, as required by Sec.  
1910.140(d)(2), must never be greater than 6 feet (1.8 m). To assure 
this, the tie-off attachment point to the lifeline or anchor should 
be located at or above the connection point of the fall arrest 
equipment to the harness. (Otherwise, additional free fall distance 
is added to the length of the connecting means (i.e., lanyard)). 
Tying off to the walking-working surface will often result in a free 
fall greater than 6 feet (1.8 m). For instance, if a 6-foot (1.8-m) 
lanyard is used, the total free fall distance will be the distance 
from the walking-working level to the harness connection plus the 6 
feet (1.8 m) of lanyard.
    (o) Elongation and deceleration distance considerations. During 
fall arrest, a lanyard will stretch or elongate, whereas activation 
of a deceleration device will result in a certain stopping distance. 
These distances should be available with the lanyard or device's 
instructions and must be added to the free fall distance to arrive 
at the total fall distance before an employee is fully stopped. The 
additional stopping distance may be significant if the lanyard or 
deceleration device is attached near or at the end of a long 
lifeline, which may itself add considerable distance due to its own 
elongation. As required by Sec.  1910.140(d)(2), sufficient distance 
to allow for all of these factors must also be maintained between 
the employee and obstructions below, to prevent an injury due to 
impact before the system fully arrests the fall. In addition, a 
minimum of 12 feet (3.7 m) of lifeline should be allowed below the 
securing point of a rope-grab-type deceleration device, and the end 
terminated to prevent the device from sliding off the lifeline. 
Alternatively, the lifeline should extend to the ground or the next 
working level below. These measures are suggested to prevent the 
employee from inadvertently moving past the end of the lifeline and 
having the rope grab become disengaged from the lifeline.
    (p) Obstruction considerations. In selecting a location for tie-
off, employers and employees should consider obstructions in the 
potential fall path of the employee. Tie-offs that minimize the 
possibilities of exaggerated swinging should be considered.

Appendix D to Subpart I of Part 1910--Test Methods and Procedures for 
Personal Fall Protection Systems Non-Mandatory Guidelines

    This appendix contains test methods for personal fall protection 
systems which may be used to determine if they meet the system 
performance criteria specified in paragraphs (d) and (e) of Sec.  
1910.140.
    Test methods for personal fall arrest systems (paragraph (d) of 
Sec.  1910.140).
    (a) General. The following sets forth test procedures for 
personal fall arrest systems as defined in paragraph (d) of Sec.  
1910.140.
    (b) General test conditions.
    (1) Lifelines, lanyards and deceleration devices should be 
attached to an anchorage and connected to the body harness in the 
same manner as they would be when used to protect employees.
    (2) The fixed anchorage should be rigid, and should not have a 
deflection greater than 0.04 inches (1 mm) when a force of 2,250 
pounds (10 kN) is applied.
    (3) The frequency response of the load measuring instrumentation 
should be 120 Hz.
    (4) The test weight used in the strength and force tests should 
be a rigid, metal cylindrical or torso-shaped object with a girth of 
38 inches plus or minus 4 inches (96 cm plus or minus 10 cm).
    (5) The lanyard or lifeline used to create the free fall 
distance should be supplied with the system, or in its absence, the 
least elastic lanyard or lifeline available should be used with the 
system.
    (6) The test weight for each test should be hoisted to the 
required level and should be quickly released without having any 
appreciable motion imparted to it.
    (7) The system's performance should be evaluated, taking into 
account the range of environmental conditions for which it is 
designed to be used.
    (8) Following the test, the system need not be capable of 
further operation.
    (c) Strength test.
    (1) During the testing of all systems, a test weight of 300 
pounds plus or minus 3 pounds (136.4 kg plus or minus 1.4 kg) should 
be used. (See paragraph (b)(4) of this appendix.)
    (2) The test consists of dropping the test weight once. A new 
unused system should be used for each test.
    (3) For lanyard systems, the lanyard length should be 6 feet 
plus or minus 2 inches (1.83 m plus or minus 5 cm) as measured from 
the fixed anchorage to the attachment on the body harness.
    (4) For rope-grab-type deceleration systems, the length of the 
lifeline above the centerline of the grabbing mechanism to the 
lifeline's anchorage point should not exceed 2 feet (0.61 m).
    (5) For lanyard systems, for systems with deceleration devices 
which do not automatically limit free fall distance to 2 feet (0.61 
m) or less, and for systems with deceleration devices which have a 
connection distance in excess of 1 foot (0.3 m) (measured between 
the centerline of the lifeline and the attachment point to the body 
harness), the test weight should be rigged to free fall a distance 
of 7.5 feet (2.3 m) from a point that is 1.5 feet (46 cm) above the 
anchorage point, to its hanging location (6 feet (1.83 m) below the 
anchorage). The test weight should fall without interference, 
obstruction, or hitting the floor or ground during the test. In some 
cases a non-elastic wire lanyard of sufficient length may need to be 
added to the system (for test purposes) to create the necessary free 
fall distance.
    (6) For deceleration device systems with integral lifelines or 
lanyards that automatically limit free fall distance to 2 feet (0.61 
m) or less, the test weight should be rigged to free fall a distance 
of 4 feet (1.22 m).
    (7) Any weight that detaches from the harness should constitute 
failure for the strength test.
    (d) Force test.
    (1) General. The test consists of dropping the respective test 
weight specified in paragraph (d)(2)(i) or (d)(3)(i) of this 
appendix once. A new, unused system should be used for each test.
    (2) For lanyard systems. (i) A test weight of 220 pounds plus or 
minus three pounds (100 kg plus or minus 1.6 kg) should be used. 
(See paragraph (b)(4) of this appendix.)

[[Page 83005]]

    (ii) Lanyard length should be 6 feet plus or minus 2 inches 
(1.83 m plus or minus 5 cm) as measured from the fixed anchorage to 
the attachment on the body harness.
    (iii) The test weight should fall free from the anchorage level 
to its hanging location (a total of 6 feet (1.83 m) free fall 
distance) without interference, obstruction, or hitting the floor or 
ground during the test.
    (3) For all other systems. (i) A test weight of 220 pounds plus 
or minus 2 pounds (100 kg plus or minus 1.0 kg) should be used. (See 
paragraph (b)(4) of this appendix.)
    (ii) The free fall distance to be used in the test should be the 
maximum fall distance physically permitted by the system during 
normal use conditions, up to a maximum free fall distance for the 
test weight of 6 feet (1.83 m), except as follows:
    (A) For deceleration systems having a connection link or 
lanyard, the test weight should free fall a distance equal to the 
connection distance (measured between the centerline of the lifeline 
and the attachment point to the body harness).
    (B) For deceleration device systems with integral lifelines or 
lanyards that automatically limit free fall distance to 2 feet (0.61 
m) or less, the test weight should free fall a distance equal to 
that permitted by the system in normal use. (For example, to test a 
system with a self-retracting lifeline or lanyard, the test weight 
should be supported and the system allowed to retract the lifeline 
or lanyard as it would in normal use. The test weight would then be 
released and the force and deceleration distance measured).
    (4) Failure. A system fails the force test when the recorded 
maximum arresting force exceeds 2,520 pounds (11.2 kN) when using a 
body harness.
    (5) Distances. The maximum elongation and deceleration distance 
should be recorded during the force test.
    (e) Deceleration device tests.
    (1) General. The device should be evaluated or tested under the 
environmental conditions (such as rain, ice, grease, dirt, and type 
of lifeline) for which the device is designed.
    (2) Rope-grab-type deceleration devices. (i) Devices should be 
moved on a lifeline 1,000 times over the same length of line a 
distance of not less than 1 foot (30.5 cm), and the mechanism should 
lock each time.
    (ii) Unless the device is permanently marked to indicate the 
type of lifelines that must be used, several types (different 
diameters and different materials), of lifelines should be used to 
test the device.
    (3) Other self-activating-type deceleration devices. The locking 
mechanisms of other self-activating-type deceleration devices 
designed for more than one arrest should lock each of 1,000 times as 
they would in normal service.
    Test methods for positioning systems (paragraph (e) of Sec.  
1910.140).
    (a) General. The following sets forth test procedures for 
positioning systems as defined in paragraph (e) of Sec.  1910.140. 
The requirements in this appendix for personal fall arrest systems 
set forth procedures that may be used, along with the procedures 
listed below, to determine compliance with the requirements for 
positioning systems.
    (b) Test conditions.
    (1) The fixed anchorage should be rigid and should not have a 
deflection greater than 0.04 inches (1 mm) when a force of 2,250 
pounds (10 kN) is applied.
    (2) For window cleaners' belts, the complete belt should 
withstand a drop test consisting of a 250 pound (113 kg) weight 
falling free for a distance of 6 feet (1.83 m). The weight should be 
a rigid object with a girth of 38 inches plus or minus 4 inches (96 
cm plus or minus 10 cm). The weight should be placed in the 
waistband with the belt buckle drawn firmly against the weight, as 
when the belt is worn by a window cleaner. One belt terminal should 
be attached to a rigid anchor and the other terminal should hang 
free. The terminals should be adjusted to their maximum span. The 
weight fastened in the freely suspended belt should then be lifted 
exactly 6 feet (1.83 m) above its ``at rest'' position and released 
so as to permit a free fall of 6 feet (1.83 m) vertically below the 
point of attachment of the terminal anchor. The belt system should 
be equipped with devices and instrumentation capable of measuring 
the duration and magnitude of the arrest forces. Failure of the test 
should consist of any breakage or slippage sufficient to permit the 
weight to fall free of the system. In addition, the initial and 
subsequent arresting forces should be measured and should not exceed 
2,000 pounds (8.5 kN) for more than 2 milliseconds for the initial 
impact, or exceed 1,000 pounds (4.5 kN) for the remainder of the 
arrest time.
    (3) All other positioning systems (except for restraint line 
systems) should withstand a drop test consisting of a 250 pound (113 
kg) weight free falling a distance of 4 feet (1.2 m). The weight 
must be a rigid object with a girth of 38 inches plus or minus 4 
inches (96 cm plus or minus 10 cm). The body belt or harness should 
be affixed to the test weight as it would be to an employee. The 
system should be connected to the rigid anchor in the manner that 
the system would be connected in normal use. The weight should be 
lifted exactly 4 feet (1.2 m) above its ``at rest'' position and 
released so as to permit a vertical free fall of 4 feet (1.2 m). 
Failure of the system should be indicated by any breakage or 
slippage sufficient to permit the weight to fall free to the ground.

Subpart N--[Amended]

0
13. Revise the authority citation for subpart N to read as follows:

    Authority: 29 U.S.C. 653, 655, 657; Secretary of Labor's Order 
No. 12-71 (36 FR 8754), 8-76 (41 FR 25059), 9-83 (48 FR 35736), 1-90 
(55 FR 9033), 6-96 (62 FR 111), 3-2000 (65 FR 50017), 5-2002 (67 FR 
65008), 5-2007 (72 FR 31159), 4-2010 (75 FR 55355), or 1-2012 (77 FR 
3912), as applicable; and 29 CFR part 1911.

0
14. In Sec.  1910.178, revise paragraph (j) to read as follows:


Sec.  1910.178   Powered industrial trucks.

* * * * *
    (j) Dockboards (bridge plates). See subpart D of this part.
* * * * *

0
15. In Sec.  1910.179, revise paragraphs (c)(2), (d)(3), and 
(d)(4)(iii) to read as follows:


Sec.  1910.179  Overhead and gantry cranes.

* * * * *
    (c) * * *
    (2) Access to crane. Access to the car and/or bridge walkway shall 
be by a conveniently placed fixed ladder, stairs, or platform requiring 
no step over any gap exceeding 12 inches (30 cm). Fixed ladders must 
comply with subpart D of this part.
* * * * *
    (d) * * *
    (3) Toeboards and handrails for footwalks. Toeboards and handrails 
must comply with subpart D of this part.
    (4) * * *
    (iii) Ladders shall be permanently and securely fastened in place 
and constructed in compliance with subpart D of this part.
* * * * *

Subpart R--[Amended]

0
16. Revise the authority citation for subpart R to read as follows:

    Authority: 29 U.S.C. 653, 655, 657; Secretary of Labor's Order 
No. 12-71 (36 FR 8754), 8-76 (41 FR 25059), 9-83 (48 FR 35736), 1-90 
(55 FR 9033), 6-96 (62 FR 111), 5-2007 (72 FR 31159), 4-2010 (75 FR 
55355), or 1-2012 (77 FR 3912), as applicable; and 29 CFR part 1911.


0
17. In Sec.  1910.261, revise paragraphs (c)(15)(ii), (e)(4), 
(g)(2)(ii), (g)(13)(i), (h)(1), (j)(4)(iii), (j)(5)(i), (k)(6), 
(k)(13)(i) and (k)(15) to read as follows:


Sec.  1910.261   Pulp, paper, and paperboard mills.

* * * * *
    (c) * * *
    (15) * * *
    (ii) Where conveyors cross passageways or roadways, a horizontal 
platform shall be provided under the conveyor, extended out from the 
sides of the conveyor a distance equal to 1\1/2\ times the length of 
the wood handled. The platform shall extend the width of the road plus 
2 feet (61 cm) on each side, and shall be kept free of wood and 
rubbish. The edges of the platform shall be provided with toeboards or 
other protection that meet the requirements of subpart D of this part, 
to prevent wood from falling.
* * * * *
    (e) * * *
    (4) Runway to the jack ladder. The runway from the pond or 
unloading dock to the table shall be protected with standard handrails 
and toeboards. Inclined portions shall have cleats or equivalent 
nonslip surfacing that

[[Page 83006]]

complies with subpart D of this part. Protective equipment shall be 
provided for persons working over water.
* * * * *
    (g) * * *
    (2) * * *
    (ii) The worker shall be provided with eye protection, a supplied 
air respirator and a personal fall protection system that meets the 
requirements of subpart I of this part, during inspection, repairs or 
maintenance of acid towers. The line shall be extended to an attendant 
stationed outside the tower opening.
* * * * *
    (13) * * *
    (i) Blow-pit openings preferably shall be on the side of the pit 
instead of on the top. Openings shall be as small as possible when 
located on top, and shall be protected in accordance with subpart D of 
this part.
* * * * *
    (h) * * *
    (1) Bleaching engines. Bleaching engines, except the Bellmer type, 
shall be completely covered on the top, with the exception of one small 
opening large enough to allow filling, but too small to admit an 
employee. Platforms leading from one engine to another shall have 
standard guardrails that meet the requirements in subpart D of this 
part.
* * * * *
    (j) * * *
    (4) * * *
    (iii) When beaters are fed from the floor above, the chute opening, 
if less than 42 inches (1.06 m) from the floor, shall be provided with 
a guardrail system that meets the requirements in subpart D of this 
part, or other equivalent enclosures. Openings for manual feeding shall 
be sufficient only for entry of stock, and shall be provided with at 
least two permanently secured crossrails or other fall protection 
system that meet the requirements in subpart D.
* * * * *
    (5) * * *
    (i) All pulpers having the top or any other opening of a vessel 
less than 42 inches (107 cm) from the floor or work platform shall have 
such openings guarded by guardrail systems that meet the requirements 
in subpart D of this part, or other equivalent enclosures. For manual 
changing, openings shall be sufficient only to permit the entry of 
stock, and shall be provided with at least two permanently secured 
crossrails, or other fall protection systems that meet the requirements 
in subpart D.
* * * * *
    (k) * * *
    (6) Steps. Steps of uniform rise and tread with nonslip surfaces 
that meet the requirements in subpart D of this part shall be provided 
at each press.
* * * * *
    (13) * * *
    (i) A guardrail that complies with subpart D of this part shall be 
provided at broke holes.
* * * * *
    (15) Steps. Steps or ladders that comply with subpart D of this 
part and tread with nonslip surfaces shall be provided at each calendar 
stack. Handrails and hand grips complying with subpart D shall be 
provided at each calendar stack.
* * * * *

0
18. In Sec.  1910.262, revise paragraph (r) to read as follows:


Sec.  1910.262  Textiles.

* * * * *
    (r) Gray and white bins. On new installations guardrails that 
comply with subpart D of this part shall be provided where workers are 
required to plait by hand from the top of the bin so as to protect the 
worker from falling to a lower level.
* * * * *

0
19. In Sec.  1910.265, revise paragraphs (c)(4)(v), (c)(5)(i), and 
(f)(6) to read as follows:


Sec.  1910.265  Sawmills.

* * * * *
    (c) * * *
    (4) * * *
    (v) Elevated platforms. Where elevated platforms are used routinely 
on a daily basis, they shall be equipped with stairways or fixed 
ladders that comply with subpart D of this part.
* * * * *
    (5) * * *
    (i) Construction. Stairways shall be constructed in accordance with 
subpart D of this part.
* * * * *
    (f) * * *
    (6) Ladders. A fixed ladder complying with the requirements of 
subpart D of this part, or other adequate means, shall be provided to 
permit access to the roof. Where controls and machinery are mounted on 
the roof, a permanent stairway with standard handrail shall be 
installed in accordance with the requirements in subpart D.
* * * * *

0
20. In Sec.  1910.268:
0
a. Revise paragraphs (g)(1);
0
b. Remove paragraph (g)(2);
0
c. Redesignate (g)(3) as (g)(2); and
0
d. Revise paragraph (h).
    The revisions read as follows:


Sec.  1910.268  Telecommunications.

* * * * *
    (g) Personal climbing equipment--(1) General. A positioning system 
or a personal fall arrest system shall be provided and the employer 
shall ensure their use when work is performed at positions more than 4 
feet (1.2 m) above the ground, on poles, and on towers, except as 
provided in paragraphs (n)(7) and (8) of this section. These systems 
shall meet the applicable requirements in subpart I of this part. The 
employer shall ensure that all climbing equipment is inspected before 
each day's use to determine that it is in safe working condition.
* * * * *
    (h) Ladders. Ladders, step bolts, and manhole steps shall meet the 
applicable requirements in subpart D of this part.
* * * * *

0
21. In Sec.  1910.269, revise paragraphs (g)(2)(i), (g)(2)(iv)(B), and 
(g)(2)(iv)(C)(1) to read as follows:


Sec.  1910.269  Electric power generation, transmission, and 
distribution.

* * * * *
    (g) * * *
    (2) * * *
    (i) Personal fall arrest systems shall meet the requirements of 
subpart I of this part.
* * * * *
    (iv) * * *
    (B) Personal fall arrest systems shall be used in accordance with 
subpart I of this part.

    Note to paragraph (g)(2)(iv)(B):  Fall protection equipment 
rigged to arrest falls is considered a fall arrest system and must 
meet the applicable requirements for the design and use of those 
systems. Fall protection equipment rigged for work positioning is 
considered work-positioning equipment and must meet the applicable 
requirements for the design and use of that equipment.

    (C) * * *
    (1) Each employee working from an aerial lift shall use a travel 
restraint system or a personal fall arrest system.
* * * * *
[FR Doc. 2016-24557 Filed 11-17-16; 8:45 am]
 BILLING CODE 4510-29-P
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