Walking-Working Surfaces, 27332-27338 [2021-10561]
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27332
Federal Register / Vol. 86, No. 96 / Thursday, May 20, 2021 / Proposed Rules
airspace extending upward from 700
feet above the surface would be
amended by increasing the radius to 8.5
miles (previously 7.4 miles). In
addition, the geographical coordinates
of Massena International-Richards Field
Airport, Massena, NY, would be
updated to coincide with the FAA’s
database.
Class E airspace designations are
published in Paragraphs 6002 and 6005,
respectively, of FAA Order 7400.11E,
dated July 21, 2020, and effective
September 15, 2020, which is
incorporated by reference in 14 CFR
71.1. The Class E airspace designations
listed in this document will be
published subsequently in the Order.
FAA Order 7400.11, Airspace
Designations and Reporting Points, is
published yearly and effective on
September 15.
Regulatory Notices and Analyses
The FAA has determined that this
proposed regulation only involves an
established body of technical
regulations for which frequent and
routine amendments are necessary to
keep them operationally current. It,
therefore: (1) Is not a ‘‘significant
regulatory action’’ under Executive
Order 12866; (2) is not a ‘‘significant
rule’’ under DOT Regulatory Policies
and Procedures (44 FR 11034; February
26, 1979); and (3) does not warrant
preparation of a Regulatory Evaluation
as the anticipated impact is so minimal.
Since this is a routine matter that will
only affect air traffic procedures and air
navigation, it is certified that this
proposed rule, when promulgated, will
not have a significant economic impact
on a substantial number of small entities
under the criteria of the Regulatory
Flexibility Act.
Environmental Review
Authority: 49 U.S.C. 106(f), 106(g); 40103,
40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR,
1959–1963 Comp., p. 389.
§ 71.1
[Amended]
2. The incorporation by reference in
14 CFR 71.1 of Federal Aviation
Administration Order 7400.11E,
Airspace Designations and Reporting
Points, dated July 21, 2020, and
effective September 15, 2020, is
amended as follows:
■
Paragraph 6002
Class E Surface Airspace.
*
*
*
*
*
AEA NY E2 Massena, NY [Amend]
Massena International-Richards Field
Airport, Massena, NY
(Lat. 44°56′10″ N, long. 74°50′42″ W)
That airspace extending upward from the
surface within a 6.0-mile radius of the
Massena International-Richards Field Airport
excluding that airspace outside of the United
States.
Paragraph 6005 Class E Airspace Areas
Extending Upward From 700 Feet or More
Above the Surface of the Earth.
*
*
*
*
*
AEA NY E5 Massena, NY [Amend]
Massena International-Richards Field
Airport, Massena, NY
(Lat. 44°56′10″ N, long. 74°50′42″ W)
That airspace extending upward from 700
feet above the surface within an 8.5-mile
radius of the Massena International-Richards
Field Airport excluding that airspace outside
of the United States.
Issued in College Park, Georgia, on May 13,
2021.
Andreese C. Davis,
Manager, Airspace & Procedures Team South,
Eastern Service Center, Air Traffic
Organization.
BILLING CODE 4910–13–P
DEPARTMENT OF LABOR
Occupational Safety and Health
Administration
Lists of Subjects in 14 CFR Part 71
29 CFR Part 1910
Airspace, Incorporation by reference,
Navigation (air).
[Docket ID–OSHA–2020–0009]
RIN 1218–AD28
The Proposed Amendment
In consideration of the foregoing, the
Federal Aviation Administration
proposes to amend 14 CFR part 71 as
follows:
16:57 May 19, 2021
1. The authority citation for part 71
continues to read as follows:
■
[FR Doc. 2021–10432 Filed 5–19–21; 8:45 am]
This proposal will be subject to an
environmental analysis in accordance
with FAA Order 1050.1F,
‘‘Environmental Impacts: Policies and
Procedures’’, prior to any FAA final
regulatory action.
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PART 71—DESIGNATION OF CLASS A,
B, C, D, AND E AIRSPACE AREAS; AIR
TRAFFIC SERVICE ROUTES; AND
REPORTING POINTS
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Walking-Working Surfaces
Occupational Safety and Health
Administration (OSHA), Labor.
ACTION: Notice of proposed rulemaking.
AGENCY:
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OSHA is proposing changes
to the Walking-Working Surfaces
standards to clarify which handrail and
stair rail system requirements apply to
new stair rail systems.
DATES: Submit comments (including
comments on the information collection
(paperwork) determination described
under the section titled SUPPLEMENTARY
INFORMATION of this document), hearing
requests, and other information by July
19, 2021. All submissions must bear a
postmark or provide other evidence of
the submission date. (See the following
section titled ADDRESSES for methods
you can use in making submissions.)
ADDRESSES: Comments may be
submitted as follows:
Electronically: You may submit
comments, including attachments,
electronically at https://
www.regulations.gov, the Federal
eRulemaking Portal. Follow the online
instructions for submitting comments.
OSHA will place comments and
requests for a hearing, including
personal information, in the public
docket, which will be available online.
Therefore, OSHA cautions interested
parties about submitting personal
information such as Social Security
numbers and birthdates.
Docket: To read or download
comments or other material in the
docket, go to https://
www.regulations.gov. Documents in the
docket are listed in the https://
www.regulations.gov index; however,
some information (e.g., copyrighted
material) is not publicly available to
read or download through this website.
All submissions, including copyrighted
material, are available for inspection
through the OSHA Docket Office.
Contact the OSHA Docket Office for
assistance in locating docket
submissions.
SUMMARY:
FOR FURTHER INFORMATION CONTACT:
Press inquiries: Frank Meilinger,
Director, OSHA Office of
Communications; telephone: (202) 693–
1999; email: meilinger.francis2@dol.gov.
General and technical information:
Mark Hagemann, Director, Office of
Safety Systems, OSHA Directorate of
Standards and Guidance; telephone:
(202) 693–2222; email:
hagemann.mark@dol.gov.
Electronic copies of this notice: Go to
OSHA’s website (https://www.osha.gov),
and select ‘‘Federal Register,’’ ‘‘Date of
Publication,’’ and then ‘‘2021.’’
Additional information for submitting
documents. See section XI (‘‘Public
Participation’’) of this notice.
SUPPLEMENTARY INFORMATION:
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Federal Register / Vol. 86, No. 96 / Thursday, May 20, 2021 / Proposed Rules
Table of Contents
I. Background
II. Legal Authority
III. Summary and Explanation of the
Proposed Rule
IV. Preliminary Economic and Initial
Regulatory Flexibility Screening
Analysis
V. Applicability of Existing National
Consensus Standards
VI. OMB Review Under the Paperwork
Reduction Act of 1995
VII. Federalism
VIII. State Plan States
IX. Unfunded Mandates Reform Act
X. Consultation and Coordination With
Indian Tribal Governments
XI. Authority and Signature
XII. Proposed Regulatory Text
I. Background
On November 18, 2016, OSHA
published a final rule on WalkingWorking Surfaces and Personal
Protective Equipment (Fall Protection
Systems) in the Federal Register (81 FR
82494). Since that time, OSHA has
received many questions and requests
for interpretation of the requirements for
handrails and stair rail systems. From
the number of questions and requests,
OSHA believes there is confusion in the
stakeholder community regarding when
handrails are required on stairs as well
as what the height requirements are for
handrails on stairs and for stair rail
systems, depending on date of
installation. With this notice, OSHA is
proposing language that it believes is
clearer without changing the intent of
the 2016 final rule. OSHA encourages
interested parties to submit comments
regarding the proposed language. Please
note that OSHA is not re-opening for
discussion any of the regulatory
decisions made in the 2016 rulemaking.
This rulemaking is focused solely on
clarifying the requirements finalized in
that rulemaking and providing
flexibility in the transition from OSHA’s
previous requirements to the new ones.
II. 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 promulgate and enforce
occupational safety and health
standards (29 U.S.C. 655(b), 657, 658).
An occupational safety and health
standard ‘‘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
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employment and places of
employment.’’ (29 U.S.C. 652(8)).
As part of determining that a standard
is reasonably necessary or appropriate
within the meaning of 29 U.S.C. 652(8),
OSHA must determine that the standard
is technologically feasible and
substantially reduces a significant risk
of harm to workers.
A standard is technologically feasible
if the protective measures it requires
already exist, available technology can
bring these measures into existence, or
there is a reasonable expectation for
developing the technology that can
produce these measures. See, e.g., Am.
Iron & Steel Inst. v. OSHA (Lead II), 939
F.2d 975, 980 (D.C. Cir. 1991) (per
curiam). In the 2016 rulemaking, OSHA
determined that the requirements of the
walking-working surfaces standard were
technologically feasible (81 FR 82800).
The proposed revisions to that standard
would not require any new equipment,
practices, or procedures not already
addressed in the previous technological
feasibility finding, so OSHA
preliminarily determines that the
proposed rule would be technologically
feasible.
The final rule for OSHA’s 2016
standard contained an extensive
analysis in which the agency concluded
that employees face a significant risk of
death or serious injury from stairway
falls (81 FR 82496). When, as here,
OSHA has previously determined that
the standard substantially reduces a
significant risk, it is unnecessary for the
agency to make additional findings on
risk for every provision of that standard.
See, e.g., Public Citizen Health Research
Grp. v. Tyson, 796 F.2d 1479, 1502 n.16
(D.C. Cir. 1986) (rejecting the argument
that OSHA must ‘‘find that each and
every aspect of its standard eliminates a
significant risk’’). Rather, once OSHA
makes a general significant risk finding
in support of a standard, the next
question is whether a particular
requirement is reasonably related to the
purpose of the standard as a whole.
(Asbestos Info. Ass’n/N. Am. v. Reich,
117 F.3d 891, 894 (5th Cir. 1997);
Forging Indus. Ass’n v. Sec’y of Labor,
773 F.2d 1436, 1447 (4th Cir. 1985);
United Steelworkers of Am., AFL–CIO–
CLC v. Marshall, 647 F.2d 1189, 1237–
38 (D.C. Cir. 1980)). As explained
elsewhere in this preamble, this
proposed rule meets this test. OSHA is
proposing revisions to the standard that
are intended to give effect to OSHA’s
original intent in the 2016 rule with
respect to handrails on open staircases
and to clarify it with respect to the
height of top-rail handrails.
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III. Summary and Explanation of the
Proposed Rule
OSHA is proposing changes to two
provisions of the walking-working
surfaces standard, Subpart D. The first,
amending § 1910.28(b), clarifies that a
stair rail system 1 with a handrail 2 is
required on the open side of certain
stairways. The second, amending
§ 1910.29(f), eases a restriction on
previously-installed stair rail systems by
allowing the top rail of those systems to
serve as a handrail when it is as low as
30 inches.
Section 1910.28 Duty To Have Fall
Protection and Falling Object Protection
Existing § 1910.28(b)(11)(ii) contains
requirements for when handrails and
stair rail systems must be present on
certain flights of stairs. The provision
refers to existing Table D–2, Stairway
Handrail Requirements, which specifies
handrail requirements based on the
variables of stair width and how many
sides of the stairway are open. Existing
Table D–2 contains a formatting error
that inadvertently omits several words
from the table with two open sides and
a width of less than 44 inches. A cell in
the table currently contains the words
‘‘One stair rail system each open side,’’
but OSHA intended the cell to state:
‘‘One stair rail system with handrail on
each open side (emphasis added).’’
OSHA is proposing to correct the cell to
reflect the language that OSHA
proposed in 2010 (see table on 75 FR
29141) and intended to finalize, as
discussed in the summary and
explanation section of the 2016 final
rule: ‘‘Final paragraph (b)(11)(ii),
consistent with . . . proposed
paragraph (b)(11)(ii), requires . . .’’ (81
FR 82611). This language means that on
new stair rail systems, both sides would
need handrails. OSHA invites comment
on this proposed correction.
OSHA recognizes that some
employers may have already relied on
the inadvertent error in existing Table
D–2 when installing stair rail systems
covered by this correction (stair width
less than 44 inches, open on both sides).
It is not OSHA’s intent for any stair rail
system installed before the effective date
of a new final rule to need modification,
so long as that system was in
compliance with OSHA requirements at
the time it was installed. OSHA is
therefore proposing two separate
provisions for stairs with two open sides
1 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
(as defined in 29 CFR 1910.21).
2 Handrail means a rail used to provide
employees with a handhold for support (as defined
in 29 CFR 1910.21).
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Federal Register / Vol. 86, No. 96 / Thursday, May 20, 2021 / Proposed Rules
and a width of less than 44 inches: The
corrected requirements for new
handrails and stair rail systems (located
in Table D–2), and a separate provision
to retain the current requirements for
already existing handrails and stair rail
systems. Proposed § 1910.28(b)(11)(ii)
would address new stair rail systems
through the corrected Table D–2,
Stairway Handrail and Stair Rail System
Requirements. OSHA would add
proposed § 1910.28(b)(11)(iii) to
maintain the existing requirements for
flights of stairs less than 44 inches (1.1
m) wide, with two open sides, and
installed before the effective date of a
final rule that would result from this
rulemaking. Those stairways would be
required to have a stair rail system on
each open side, but would not need to
include a handrail.
With the addition of proposed
paragraph (b)(11)(iii), existing paragraph
(b)(11)(iii) would be redesignated as
(b)(11)(iv) with no change to the
regulatory text.
Section 1910.29 Fall Protection
Systems and Falling Object Protection—
Criteria and Practices
OSHA is proposing to reorganize
provisions in § 1910.29(f) to address
confusion in the stakeholder community
on the application of existing
§ 1910.29(f)(1)(iii)(A). OSHA has
received many questions and requests
for letters of interpretation asking when
the top rail of a stair rail system may
also serve as a handrail (i.e.,
‘‘combination’’ top rails). In the 2016
rulemaking, OSHA had allowed the top
rail of stair rail systems to serve as a
handrail when two conditions were met:
(1) The height of that stair rail system
is not less than 36 inches and not more
than 38 inches, as measured at the
leading edge of the stair tread to the top
surface of the top rail; and (2) the stair
rail system was installed before the
effective date of the rule (January 17,
2017).3 However, installations at those
height specifications were technically
precluded by OSHA’s previous
standard, which mandated the top rail
of a stair rail system to be between 30
and 34 inches. The 2016 final rule did
not specifically address combination
handrail requirements for stair rail
systems that have a top rail height not
less than 30 inches (the previous
3 OSHA effectively foreclosed the use of the top
rail as a handrail for stair rail systems installed after
January 17, 2017. OSHA stated in the 2016 final
rule, ‘‘. . . because the final rule requires that all
stair rail systems installed on or after the effective
date, which is January 17, 2017, to 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’’ (81 FR 82630).
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minimum height for a stair rail system)
and up to 36 inches. Moreover, OSHA
has become aware that employer
confusion over that part of the 2016
rulemaking has led to some employers
relying on the top rail of stair rail
systems as a ‘‘combination’’ handrail for
various heights at 38 inches or below for
installations after January 2017, despite
OSHA’s new minimum 42-inch
requirement for top stair rails.
In light of the employer confusion
following the 2016 rulemaking
regarding the height requirements for
combination top rails, OSHA is
proposing to expand the height range in
proposed paragraph (f)(1)(ii)(A) to state
that the top rail of stair rail systems
installed prior to the effective date of a
new final rule can serve as a hand rail
if that top rail is 30 to 38 inches in
height, and meets the other handrail
requirements of paragraph (f). OSHA is
not proposing to require employers to
modify otherwise compliant stair rail
systems installed between January 17,
2017, and the date of any final rule
resulting from this proposal.
OSHA is also proposing to revise the
captions for Figures D–12 and D–13 to
clarify that they are depicting only
height requirements for handrails and
combination handrail and stair rail
systems installed before the effective
date of a new final rule. They do not
depict any other requirements for
handrails and stair rail systems
contained in § 1910.29(f). OSHA is also
proposing to add Figure D–13A to
further clarify height requirements for
handrails and stair rail systems installed
on or after the effective date of a new
final rule.
OSHA requests comment on these
proposed changes.
IV. Preliminary Economic and Initial
Regulatory Flexibility Screening
Analysis
Executive Orders 12866 and 13563,
the Regulatory Flexibility Act (5 U.S.C.
601–612), and the Unfunded Mandates
Reform Act (UMRA) (2 U.S.C. 1532(a))
require that OSHA estimate the benefits,
costs, and net benefits of regulations,
and analyze the impacts of certain rules
that OSHA promulgates. Executive
Order 13563 emphasizes the importance
of quantifying both costs and benefits,
reducing costs, harmonizing rules, and
promoting flexibility.
In the 2016 rulemaking, OSHA
provided these analyses (81 FR 82670).
Those analyses would not be impacted
by this proposed rule. OSHA does not
anticipate any significant effects on the
costs or benefits identified in the 2016
rulemaking from the proposed revisions
to § 1910.28 and § 1910.29 addressing
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handrails and stair rail systems. This
proposal reorganizes the rule in a
clearer, more logical manner and further
explains OSHA’s intent. Although
OSHA proposes to amend § 1910.28 to
correct an inadvertent error in the 2016
rule—handrails should have been
required on the open side of a
stairway—OSHA anticipates that this
correction will result in no costs or cost
savings. Because the agency had
estimated full current compliance (i.e.,
full current industry practice) with that
proposed requirement, costs for that
requirement in both the 2016 economic
analysis and the economic analysis of
the proposal for that rulemaking were
zero. Moreover, and as discussed above,
OSHA anticipates this proposed rule
will not have a significant impact on the
benefits of the 2016 standard because it
will generally maintain the same level
of safety and health protections for
workers. The agency requests public
comment on this preliminary
assessment.
As discussed earlier in this preamble,
with respect to § 1910.28(b)(11)
Stairways, it is not OSHA’s intent for
any stair rail system installed before
January 17, 2017, to need modification,
so long as that system was in
compliance with OSHA requirements at
the time it was installed. With respect
to § 1910.29(f)(1) Handrails and stair rail
systems; Height criteria, OSHA did not
intend for any of the ‘‘grandfathered’’
stair rail systems that had a top rail
height between 30 and 38 inches to
need to be modified if the stair rail
system was installed before January 17,
2017, and it complied with the previous
rule. OSHA is therefore proposing to
clarify that the top rail of stair rail
systems installed prior to January 17,
2017, can serve as a handrail if that top
rail is 30 to 38 inches in height and
meets the other handrail requirements
of paragraph (f). In the economic
analysis of the 2016 rule, OSHA did not
identify costs for employers to modify
existing handrails or stair rail systems in
any of those scenarios, so OSHA is not
identifying any potential cost savings
that might be attributed to the avoidance
of those modifications.
OSHA recognizes the possibility that
employers who installed a separate
handrail on an existing stair rail system
incurred compliance costs associated
with the regulatory text for
§ 1910.29(f)(1) Handrails and stair rail
systems, as published in the 2016 final
rule. OSHA lacks the data to quantify
any potential cost savings for employers
who would not need to add additional
handrails to stair rail systems in
accordance with the 2016 rulemaking
that effectively precluded combination
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Federal Register / Vol. 86, No. 96 / Thursday, May 20, 2021 / Proposed Rules
stair rails for new installations after
January 17, 2017. Therefore, OSHA
characterizes any potential cost savings
from this proposed rulemaking in
qualitative terms and not quantitatively,
and the agency requests public
comment on this question of potential
cost savings from the proposed
clarification of the regulatory language
for § 1910.29(f)(1) Handrails and stair
rail systems.
Because this action will impose no
new or additional compliance burden
on the affected employers and therefore
no new or additional costs, OSHA has
determined that the proposed revisions
to the standard are economically
feasible. OSHA requests public
comment on this preliminary
assessment.
This proposed rule is not an
‘‘economically significant regulatory
action’’ under Executive Order 12866 or
UMRA, or a ‘‘major rule’’ under the
Congressional Review Act (5 U.S.C. 801
et seq.). Neither the benefits nor the
costs of this proposed rule would
exceed $100 million in any given year.
Furthermore, because the proposed rule
would not impose any costs, OSHA
certifies that it would not have a
significant impact on a substantial
number of small entities.
V. Applicability of Existing National
Consensus Standards
Section 6(b)(8) of the Occupational
Safety and Health Act of 1970 (‘‘the
Act’’; 29 U.S.C. 655(b)(8)) requires
OSHA to publish ‘‘a statement of the
reasons why the rule as adopted will
better effectuate the purposes of the Act
than the national consensus standard.’’
OSHA included that explanation when
it adopted new rules in the 2016
rulemaking (81 FR 82807). This
proposed rule would modify two of the
provisions adopted in 2016, but does
not adopt separate new rules.
VI. OMB Review Under the Paperwork
Reduction Act of 1995
This proposal to update and revise the
requirements for handrails and stair rail
systems in the Walking-Working
Surfaces Standards contains no
information collection requirements
subject to OMB approval under the
Paperwork Reduction Act of 1995
(PRA), U.S.C. 3501 et seq., and the
implementing regulations at 5 CFR part
1320. The PRA 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
the PRA, a federal agency cannot
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conduct or sponsor a collection of
information unless OMB approves it,
and the agency displays a valid OMB
control number (44 U.S.C. 3507). Also,
notwithstanding any other provision of
law, no employer shall be subject to
penalty for failing to comply with a
collection of information if the
collection of information does not
display a valid OMB control number (44
U.S.C. 3512). The information
collections related to walking-working
surfaces standards for general
industry—29 CFR 1910.23(b)(10), 29
CFR 1910.27(b)(1)(i) and (ii), and 29
CFR 1910.28(b)(1)—have been approved
under OMB control number 1218–0199.
The existing currently approved
information collections would not be
affected by this proposal and therefore
would go forward unchanged. The
Department welcomes any comments on
this preliminary determination.
VII. Federalism
OSHA reviewed this NPRM in
accordance with the Executive Order on
Federalism (Executive Order 13132, 64
FR 43255, August 10, 1999), which
requires that federal agencies, to the
extent possible, refrain from limiting
state policy options, consult with states
prior to taking any actions that would
restrict state policy options, and take
such actions only when clear
constitutional authority exists and the
problem is national in scope. Executive
Order 13132 provides for preemption of
state law only with the expressed
consent of Congress. Any such
preemption must be limited to the
extent possible.
Under section 18 of the Occupational
Safety and Health Act of 1970 (‘‘OSH
Act’’; U.S.C. 651 et seq.), Congress
expressly provides that states may
adopt, with federal approval, a plan for
the development and enforcement of
occupational safety and health
standards; states that obtain federal
approval for such a plan are referred to
as ‘‘State-Plan States’’ (29 U.S.C. 667).
Occupational safety and health
standards developed by State-Plan
States must be at least as effective in
providing safe and healthful
employment and places of employment
as the federal standards. Subject to these
requirements, State-Plan States are free
to develop and enforce their own
requirements for occupational safety
and health standards.
OSHA previously concluded that
promulgation of subpart D complies
with Executive Order 13132 (81 FR
82975). That analysis applies to this
proposed rule, which would clarify
several provisions and expand the
number of existing stair rail systems
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27335
exempted from modification
requirements; therefore, this proposed
rule complies with Executive Order
13132.
VIII. State Plans
When Federal OSHA promulgates a
new standard or a more stringent
amendment to an existing standard,
states and U.S. territories with their own
OSHA-approved occupational safety
and health plans (‘‘State Plans’’) must
either amend their standards to be
identical or ‘‘at least as effective as’’ the
new standard or amendment, or show
that an existing state standard covering
this area is ‘‘at least as effective’’ as the
new federal standard or amendment (29
U.S.C. 667(c)(2); 29 CFR 1953.5(a)).
State Plans’ adoption must be
completed within six 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 Plans do not have to amend their
standards, although OSHA may
encourage them to do so.
Of the 28 states and territories with
OSHA-approved State Plans, 22 cover
public and private-sector employees:
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. The remaining six states and
territories cover only state and local
government employees: Connecticut,
Illinois, Maine, New Jersey, New York,
and the Virgin Islands.
The proposed amendments to
§ 1910.28(b), clarifying that a handrail is
required on the open side of certain
stairways, are important corrections that
are necessary for worker protection.
OSHA has preliminarily determined
that within six months of the rule’s final
promulgation date, each State Plan
would be required to review its
standards and revise their standards to
include this handrail requirement
unless the State Plan can demonstrate
that such revisions are not necessary
because the existing standards, and the
enforcement of the standards, are
already at least as effective.
The proposed amendments to
§ 1910.29(f) expand the existing
grandfather provision for previouslyinstalled stair systems, are permissive,
and are clarifying in nature without
imposing any new requirement. OSHA
does not view the proposed
amendments as more stringent than the
existing standard, so OSHA has
preliminarily determined that State
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Plans would not be required to adopt
the expanded grandfather provision.
State Plans States may, however, choose
to conform their standards to allow
employers this increased flexibility.
OSHA invites comments on these
preliminary determinations.
IX. Unfunded Mandates Reform Act
OSHA reviewed this proposed 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). As discussed above in
section IV of this preamble
(‘‘Preliminary Economic Analysis and
Initial Regulatory Flexibility Screening
Analysis’’), the agency does not expect
the private-sector employers to incur
any new costs not previously accounted
for in the economic analysis of the 2016
rule. While this proposed 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).
Under voluntary agreement with
OSHA, some 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 had included
compliance costs for the affected public
sector entities in the analysis of the
expected impacts associated with the
2016 rulemaking, neither that
rulemaking nor this proposal would
involve any unfunded mandates being
imposed on any state or local
government entity. Consequently, this
proposed rule does not meet the
definition of a ‘‘Federal
intergovernmental mandate’’ (See
section 421(5) of the UMRA (2 U.S.C.
658(5))). Therefore, for the purposes of
the UMRA, the agency preliminarily
certifies that this proposed rule does not
mandate that state, local, and tribal
governments adopt new, unfunded
regulatory obligations.
X. Consultation and Coordination With
Indian Tribal Governments
The Department has reviewed this
proposed rule in accordance with
Executive Order 13175, (65 FR 67249
(Nov. 9, 2000)) and has determined that
it does not have ‘‘tribal implications’’ as
defined in that order. The proposed 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.
Signed at Washington, DC, on May 13,
2021.
James S. Frederick,
Acting Assistant Secretary of Labor for
Occupational Safety and Health.
XII. Proposed Regulatory Text
Pursuant to sections 4, 6, and 8 of the
OSH Act of 1970 (29 U.S.C. 653, 655,
657), Secretary of Labor’s Order No. 5–
2007 (72 FR 31159), and 29 CFR part
1911, OSHA proposes to amend subpart
D of 29 CFR part 1910 as follows:
PART 1910—OCCUPATIONAL SAFETY
AND HEALTH STANDARDS
Subpart D—Walking–Working Surfaces
1. The authority citation for part 1910,
subpart D, is revised 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), 1–2012 (77 FR
3912), and 08–2020 (85 FR 58393), as
applicable; and 29 CFR part 1911.
2. Amend § 1910.28 by revising
paragraph (b)(11) to read as follows:
List of Subjects in 29 CFR 1910
Falls, Handrails, Occupational safety
and health, Stair rail systems, Walkingworking surfaces.
■
XI. Authority and Signature
This document was prepared under
the direction of James S. Frederick,
Acting 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 1–2012 (77 FR 3912 (1/
25/2012), and 29 CFR part 1911.
*
§ 1910.28 Duty to have fall protection and
falling object protection.
*
*
*
*
(b) * * *
(11) * * *
(ii) Each flight of stairs, having at least
3 treads and at least 4 risers, installed
on or after (date 60 days after the
publication date of the final rule) is
equipped with stair rail systems and
handrails as follows:
TABLE D–2—STAIRWAY HANDRAIL AND STAIR RAIL SYSTEM REQUIREMENTS
Stair width
Enclosed
One open side
Two open sides
Less than 44 inches (1.1 m) ......
At least one handrail ..................
44 inches (1.1 m) to 88 inches
(2.2 m).
One handrail on each enclosed
side.
One stair rail system with handrail on each open side.
One stair rail system with handrail on each open side.
Greater than 88 inches (2.2 m)
One handrail on each enclosed
side and one intermediate
handrail located in the middle
of the stair.
Exterior stairs less than 44
inches (1.1 m).
....................................................
One stair rail system with handrail on open side.
One stair rail system with handrail on open side and one
handrail on enclosed side.
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.
....................................................
One stair rail system with handrail on each open side and
one intermediate handrail located in the middle of the
stair.
....................................................
With earth built up on
both sides
One handrail on at least
one side.
Note to table: The width of the stair must be clear of all obstructions except handrails.
(iii) Each flight of stairs, having at
least 3 treads and at least 4 risers, that
is less than 44 inches (1.1 m) wide, that
has two open sides, and was installed
before (date 60 days after the
publication date of the final rule) must
have a stair rail system on each open
side, but a handrail is not required.
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(iv) Each ship stairs and alternating
tread type stairs is equipped with
handrails on both sides.
*
*
*
*
*
■ 3. Amend § 1910.29 by revising
paragraph (f)(1) to read as follows:
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§ 1910.29 Fall protection systems and
falling object protection—criteria and
practices.
*
*
*
*
*
(f) * * *
(1) * * *
(ii) * * *
(A) For stair rail systems installed
before (date 60 days after the
publication date of the final rule):
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(1) The height is not less than 30
inches (76 cm), as measured from the
leading edge of the stair tread to the top
surface of the top rail; and
(2) The top rail may serve as a
handrail only when the height of the
stair rail system is 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 top rail (see Figure D–13
of this section).
(B) For stair rail systems installed on
or after (date 60 days after the
publication date of the final rule), the
height is not less than 42 inches (107
cm), as measured from the leading edge
of the stair tread to the top surface of the
27337
top rail (see Figure D–13A of this
section). Stair rail systems installed on
or after (date 60 days after the
publication date of the final rule), must
have a separate handrail that meets the
requirements of 29 CFR 1910.29(f)(1)(i).
*
*
*
*
*
BILLING CODE 4510–26–P
301N-381N
~-97CM
i-~
Figure D-12 - Handrail Height Measurement (all installation dates)
301N-381N
{18CM-97CM)
/'
Figure D-13 - Combination Handrail and Stair Rail System Height Measurement for
Stair Rail Systems Installed before (date 60 days after the publication date of the final
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rule)
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Federal Register / Vol. 86, No. 96 / Thursday, May 20, 2021 / Proposed Rules
30 IN-381N
(76 CM -97 CM)
Figure D-13A-Handrail and Stair Rail Height Measurements for Stair Rail Systems
Installed on or after (date 60 days after the publication date of the final rule)
*
*
*
www.osha.gov/hazcom/rulemaking. To
testify or question witnesses at the
hearing, interested persons must
electronically submit their notice by
June 18, 2021. In addition, those who
request more than ten minutes for their
presentation at the informal hearing and
those who intend to submit
documentary evidence at the hearing
must submit the full text of their
testimony, as well as a copy of any
documentary evidence, no later than
August 21, 2021.
*
[FR Doc. 2021–10561 Filed 5–19–21; 8:45 am]
BILLING CODE 4510–26–C
DEPARTMENT OF LABOR
Occupational Safety and Health
Administration
29 CFR Part 1910
[Docket No. OSHA–2019–0001]
RIN 1218–AC93
ADDRESSES:
Hazard Communication Standard
Occupational Safety and Health
Administration (OSHA), Labor.
ACTION: Proposed rule; notice of
informal hearing.
AGENCY:
OSHA is scheduling an
informal public hearing on its proposed
rule ‘‘Hazard Communication
Standard.’’ The public hearing will
begin September 21, 2021 at 10:00 a.m.,
Eastern Time (ET). The proposed rule
was published in the Federal Register
on February 16, 2021. The initial public
comment period was to end April 19,
2021, but was extended to May 19,
2021, in response to requests from the
public.
DATES: Informal public hearing: The
hearing will begin September 21, 2021,
at 10:00 a.m., ET, and will be held
virtually using WebEx. If necessary, the
hearing will continue from 9:30 a.m.
until 5:00 p.m., ET, on subsequent days.
Additional information on how to
access the informal hearing will be
posted when available at https://
SUMMARY:
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Notices of Intent to Appear: Notices of
intent to appear at the hearing, along
with any submissions and attachments,
should be submitted electronically at
https://www.regulations.gov, which is
the Federal e-Rulemaking Portal. Follow
the instructions online for making
electronic submissions. After accessing
‘‘all documents and comments’’ in the
docket (Docket No. OSHA–2019–0001),
check the ‘‘proposed rule’’ box in the
column headed ‘‘Document Type,’’ find
the document posted on the date of
publication of this hearing notice, and
click the ‘‘Comment Now’’ link. When
uploading multiple attachments to
www.regulations.gov, please number all
of your attachments because
www.regulations.gov will not
automatically number the attachments.
This will be very useful in identifying
all attachments in the preamble. For
example, Attachment 1—title of your
document, Attachment 2—title of your
document, Attachment 3—title of your
document. For assistance with
commenting and uploading documents,
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please see the Frequently Asked
Questions on regulations.gov.
Instructions: All submissions must
include the agency’s name and the
docket number for this rulemaking
(Docket No. OSHA–2019–0001). All
comments, including any personal
information you provide, are placed in
the public docket without change and
may be made available online at https://
www.regulations.gov. Therefore, OSHA
cautions commenters about submitting
information they do not want made
available to the public, or submitting
materials that contain personal
information (either about themselves or
others), such as Social Security
Numbers and birthdates.
Docket: To read or download
comments, notices of intent to appear,
and other materials submitted in the
docket, go to Docket No. OSHA–2019–
0001 at https://www.regulations.gov. All
comments and submissions are listed in
the https://www.regulations.gov index;
however, some information (e.g.,
copyrighted material) is not publicly
available to read or download through
that website. All comments and
submissions, including copyrighted
material, are available for inspection
through the OSHA Docket Office.1
FOR FURTHER INFORMATION CONTACT: For
press inquiries: Contact Frank
1 Documents submitted to the docket by OSHA or
stakeholders are assigned document identification
numbers (Document ID) for easy identification and
retrieval. The full Document ID is the docket
number plus a unique four-digit code. OSHA is
identifying supporting information in this notice by
author name, publication year, and the last four
digits of the Document ID.
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*
]]>Agencies
[Federal Register Volume 86, Number 96 (Thursday, May 20, 2021)]
[Proposed Rules]
[Pages 27332-27338]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-10561]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF LABOR
Occupational Safety and Health Administration
29 CFR Part 1910
[Docket ID-OSHA-2020-0009]
RIN 1218-AD28
Walking-Working Surfaces
AGENCY: Occupational Safety and Health Administration (OSHA), Labor.
ACTION: Notice of proposed rulemaking.
-----------------------------------------------------------------------
SUMMARY: OSHA is proposing changes to the Walking-Working Surfaces
standards to clarify which handrail and stair rail system requirements
apply to new stair rail systems.
DATES: Submit comments (including comments on the information
collection (paperwork) determination described under the section titled
SUPPLEMENTARY INFORMATION of this document), hearing requests, and
other information by July 19, 2021. All submissions must bear a
postmark or provide other evidence of the submission date. (See the
following section titled ADDRESSES for methods you can use in making
submissions.)
ADDRESSES: Comments may be submitted as follows:
Electronically: You may submit comments, including attachments,
electronically at https://www.regulations.gov, the Federal eRulemaking
Portal. Follow the online instructions for submitting comments.
OSHA will place comments and requests for a hearing, including
personal information, in the public docket, which will be available
online. Therefore, OSHA cautions interested parties about submitting
personal information such as Social Security numbers and birthdates.
Docket: To read or download comments or other material in the
docket, go to https://www.regulations.gov. Documents in the docket are
listed in the https://www.regulations.gov index; however, some
information (e.g., copyrighted material) is not publicly available to
read or download through this website. All submissions, including
copyrighted material, are available for inspection through the OSHA
Docket Office. Contact the OSHA Docket Office for assistance in
locating docket submissions.
FOR FURTHER INFORMATION CONTACT:
Press inquiries: Frank Meilinger, Director, OSHA Office of
Communications; telephone: (202) 693-1999; email:
[email protected].gov.
General and technical information: Mark Hagemann, Director, Office
of Safety Systems, OSHA Directorate of Standards and Guidance;
telephone: (202) 693-2222; email: [email protected].
Electronic copies of this notice: Go to OSHA's website (https://www.osha.gov), and select ``Federal Register,'' ``Date of
Publication,'' and then ``2021.'' Additional information for submitting
documents. See section XI (``Public Participation'') of this notice.
SUPPLEMENTARY INFORMATION:
[[Page 27333]]
Table of Contents
I. Background
II. Legal Authority
III. Summary and Explanation of the Proposed Rule
IV. Preliminary Economic and Initial Regulatory Flexibility
Screening Analysis
V. Applicability of Existing National Consensus Standards
VI. OMB Review Under the Paperwork Reduction Act of 1995
VII. Federalism
VIII. State Plan States
IX. Unfunded Mandates Reform Act
X. Consultation and Coordination With Indian Tribal Governments
XI. Authority and Signature
XII. Proposed Regulatory Text
I. Background
On November 18, 2016, OSHA published a final rule on Walking-
Working Surfaces and Personal Protective Equipment (Fall Protection
Systems) in the Federal Register (81 FR 82494). Since that time, OSHA
has received many questions and requests for interpretation of the
requirements for handrails and stair rail systems. From the number of
questions and requests, OSHA believes there is confusion in the
stakeholder community regarding when handrails are required on stairs
as well as what the height requirements are for handrails on stairs and
for stair rail systems, depending on date of installation. With this
notice, OSHA is proposing language that it believes is clearer without
changing the intent of the 2016 final rule. OSHA encourages interested
parties to submit comments regarding the proposed language. Please note
that OSHA is not re-opening for discussion any of the regulatory
decisions made in the 2016 rulemaking. This rulemaking is focused
solely on clarifying the requirements finalized in that rulemaking and
providing flexibility in the transition from OSHA's previous
requirements to the new ones.
II. 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
promulgate and enforce occupational safety and health standards (29
U.S.C. 655(b), 657, 658).
An occupational safety and health standard ``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 and places of employment.'' (29
U.S.C. 652(8)).
As part of determining that a standard is reasonably necessary or
appropriate within the meaning of 29 U.S.C. 652(8), OSHA must determine
that the standard is technologically feasible and substantially reduces
a significant risk of harm to workers.
A standard is technologically feasible if the protective measures
it requires already exist, available technology can bring these
measures into existence, or there is a reasonable expectation for
developing the technology that can produce these measures. See, e.g.,
Am. Iron & Steel Inst. v. OSHA (Lead II), 939 F.2d 975, 980 (D.C. Cir.
1991) (per curiam). In the 2016 rulemaking, OSHA determined that the
requirements of the walking-working surfaces standard were
technologically feasible (81 FR 82800). The proposed revisions to that
standard would not require any new equipment, practices, or procedures
not already addressed in the previous technological feasibility
finding, so OSHA preliminarily determines that the proposed rule would
be technologically feasible.
The final rule for OSHA's 2016 standard contained an extensive
analysis in which the agency concluded that employees face a
significant risk of death or serious injury from stairway falls (81 FR
82496). When, as here, OSHA has previously determined that the standard
substantially reduces a significant risk, it is unnecessary for the
agency to make additional findings on risk for every provision of that
standard. See, e.g., Public Citizen Health Research Grp. v. Tyson, 796
F.2d 1479, 1502 n.16 (D.C. Cir. 1986) (rejecting the argument that OSHA
must ``find that each and every aspect of its standard eliminates a
significant risk''). Rather, once OSHA makes a general significant risk
finding in support of a standard, the next question is whether a
particular requirement is reasonably related to the purpose of the
standard as a whole. (Asbestos Info. Ass'n/N. Am. v. Reich, 117 F.3d
891, 894 (5th Cir. 1997); Forging Indus. Ass'n v. Sec'y of Labor, 773
F.2d 1436, 1447 (4th Cir. 1985); United Steelworkers of Am., AFL-CIO-
CLC v. Marshall, 647 F.2d 1189, 1237-38 (D.C. Cir. 1980)). As explained
elsewhere in this preamble, this proposed rule meets this test. OSHA is
proposing revisions to the standard that are intended to give effect to
OSHA's original intent in the 2016 rule with respect to handrails on
open staircases and to clarify it with respect to the height of top-
rail handrails.
III. Summary and Explanation of the Proposed Rule
OSHA is proposing changes to two provisions of the walking-working
surfaces standard, Subpart D. The first, amending Sec. 1910.28(b),
clarifies that a stair rail system \1\ with a handrail \2\ is required
on the open side of certain stairways. The second, amending Sec.
1910.29(f), eases a restriction on previously-installed stair rail
systems by allowing the top rail of those systems to serve as a
handrail when it is as low as 30 inches.
---------------------------------------------------------------------------
\1\ 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 (as defined in 29 CFR 1910.21).
\2\ Handrail means a rail used to provide employees with a
handhold for support (as defined in 29 CFR 1910.21).
---------------------------------------------------------------------------
Section 1910.28 Duty To Have Fall Protection and Falling Object
Protection
Existing Sec. 1910.28(b)(11)(ii) contains requirements for when
handrails and stair rail systems must be present on certain flights of
stairs. The provision refers to existing Table D-2, Stairway Handrail
Requirements, which specifies handrail requirements based on the
variables of stair width and how many sides of the stairway are open.
Existing Table D-2 contains a formatting error that inadvertently omits
several words from the table with two open sides and a width of less
than 44 inches. A cell in the table currently contains the words ``One
stair rail system each open side,'' but OSHA intended the cell to
state: ``One stair rail system with handrail on each open side
(emphasis added).'' OSHA is proposing to correct the cell to reflect
the language that OSHA proposed in 2010 (see table on 75 FR 29141) and
intended to finalize, as discussed in the summary and explanation
section of the 2016 final rule: ``Final paragraph (b)(11)(ii),
consistent with . . . proposed paragraph (b)(11)(ii), requires . . .''
(81 FR 82611). This language means that on new stair rail systems, both
sides would need handrails. OSHA invites comment on this proposed
correction.
OSHA recognizes that some employers may have already relied on the
inadvertent error in existing Table D-2 when installing stair rail
systems covered by this correction (stair width less than 44 inches,
open on both sides). It is not OSHA's intent for any stair rail system
installed before the effective date of a new final rule to need
modification, so long as that system was in compliance with OSHA
requirements at the time it was installed. OSHA is therefore proposing
two separate provisions for stairs with two open sides
[[Page 27334]]
and a width of less than 44 inches: The corrected requirements for new
handrails and stair rail systems (located in Table D-2), and a separate
provision to retain the current requirements for already existing
handrails and stair rail systems. Proposed Sec. 1910.28(b)(11)(ii)
would address new stair rail systems through the corrected Table D-2,
Stairway Handrail and Stair Rail System Requirements. OSHA would add
proposed Sec. 1910.28(b)(11)(iii) to maintain the existing
requirements for flights of stairs less than 44 inches (1.1 m) wide,
with two open sides, and installed before the effective date of a final
rule that would result from this rulemaking. Those stairways would be
required to have a stair rail system on each open side, but would not
need to include a handrail.
With the addition of proposed paragraph (b)(11)(iii), existing
paragraph (b)(11)(iii) would be redesignated as (b)(11)(iv) with no
change to the regulatory text.
Section 1910.29 Fall Protection Systems and Falling Object Protection--
Criteria and Practices
OSHA is proposing to reorganize provisions in Sec. 1910.29(f) to
address confusion in the stakeholder community on the application of
existing Sec. 1910.29(f)(1)(iii)(A). OSHA has received many questions
and requests for letters of interpretation asking when the top rail of
a stair rail system may also serve as a handrail (i.e., ``combination''
top rails). In the 2016 rulemaking, OSHA had allowed the top rail of
stair rail systems to serve as a handrail when two conditions were met:
(1) The height of that stair rail system is not less than 36 inches and
not more than 38 inches, as measured at the leading edge of the stair
tread to the top surface of the top rail; and (2) the stair rail system
was installed before the effective date of the rule (January 17,
2017).\3\ However, installations at those height specifications were
technically precluded by OSHA's previous standard, which mandated the
top rail of a stair rail system to be between 30 and 34 inches. The
2016 final rule did not specifically address combination handrail
requirements for stair rail systems that have a top rail height not
less than 30 inches (the previous minimum height for a stair rail
system) and up to 36 inches. Moreover, OSHA has become aware that
employer confusion over that part of the 2016 rulemaking has led to
some employers relying on the top rail of stair rail systems as a
``combination'' handrail for various heights at 38 inches or below for
installations after January 2017, despite OSHA's new minimum 42-inch
requirement for top stair rails.
---------------------------------------------------------------------------
\3\ OSHA effectively foreclosed the use of the top rail as a
handrail for stair rail systems installed after January 17, 2017.
OSHA stated in the 2016 final rule, ``. . . because the final rule
requires that all stair rail systems installed on or after the
effective date, which is January 17, 2017, to 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'' (81 FR
82630).
---------------------------------------------------------------------------
In light of the employer confusion following the 2016 rulemaking
regarding the height requirements for combination top rails, OSHA is
proposing to expand the height range in proposed paragraph
(f)(1)(ii)(A) to state that the top rail of stair rail systems
installed prior to the effective date of a new final rule can serve as
a hand rail if that top rail is 30 to 38 inches in height, and meets
the other handrail requirements of paragraph (f). OSHA is not proposing
to require employers to modify otherwise compliant stair rail systems
installed between January 17, 2017, and the date of any final rule
resulting from this proposal.
OSHA is also proposing to revise the captions for Figures D-12 and
D-13 to clarify that they are depicting only height requirements for
handrails and combination handrail and stair rail systems installed
before the effective date of a new final rule. They do not depict any
other requirements for handrails and stair rail systems contained in
Sec. 1910.29(f). OSHA is also proposing to add Figure D-13A to further
clarify height requirements for handrails and stair rail systems
installed on or after the effective date of a new final rule.
OSHA requests comment on these proposed changes.
IV. Preliminary Economic and Initial Regulatory Flexibility Screening
Analysis
Executive Orders 12866 and 13563, the Regulatory Flexibility Act (5
U.S.C. 601-612), and the Unfunded Mandates Reform Act (UMRA) (2 U.S.C.
1532(a)) require that OSHA estimate the benefits, costs, and net
benefits of regulations, and analyze the impacts of certain rules that
OSHA promulgates. Executive Order 13563 emphasizes the importance of
quantifying both costs and benefits, reducing costs, harmonizing rules,
and promoting flexibility.
In the 2016 rulemaking, OSHA provided these analyses (81 FR 82670).
Those analyses would not be impacted by this proposed rule. OSHA does
not anticipate any significant effects on the costs or benefits
identified in the 2016 rulemaking from the proposed revisions to Sec.
1910.28 and Sec. 1910.29 addressing handrails and stair rail systems.
This proposal reorganizes the rule in a clearer, more logical manner
and further explains OSHA's intent. Although OSHA proposes to amend
Sec. 1910.28 to correct an inadvertent error in the 2016 rule--
handrails should have been required on the open side of a stairway--
OSHA anticipates that this correction will result in no costs or cost
savings. Because the agency had estimated full current compliance
(i.e., full current industry practice) with that proposed requirement,
costs for that requirement in both the 2016 economic analysis and the
economic analysis of the proposal for that rulemaking were zero.
Moreover, and as discussed above, OSHA anticipates this proposed rule
will not have a significant impact on the benefits of the 2016 standard
because it will generally maintain the same level of safety and health
protections for workers. The agency requests public comment on this
preliminary assessment.
As discussed earlier in this preamble, with respect to Sec.
1910.28(b)(11) Stairways, it is not OSHA's intent for any stair rail
system installed before January 17, 2017, to need modification, so long
as that system was in compliance with OSHA requirements at the time it
was installed. With respect to Sec. 1910.29(f)(1) Handrails and stair
rail systems; Height criteria, OSHA did not intend for any of the
``grandfathered'' stair rail systems that had a top rail height between
30 and 38 inches to need to be modified if the stair rail system was
installed before January 17, 2017, and it complied with the previous
rule. OSHA is therefore proposing to clarify that the top rail of stair
rail systems installed prior to January 17, 2017, can serve as a
handrail if that top rail is 30 to 38 inches in height and meets the
other handrail requirements of paragraph (f). In the economic analysis
of the 2016 rule, OSHA did not identify costs for employers to modify
existing handrails or stair rail systems in any of those scenarios, so
OSHA is not identifying any potential cost savings that might be
attributed to the avoidance of those modifications.
OSHA recognizes the possibility that employers who installed a
separate handrail on an existing stair rail system incurred compliance
costs associated with the regulatory text for Sec. 1910.29(f)(1)
Handrails and stair rail systems, as published in the 2016 final rule.
OSHA lacks the data to quantify any potential cost savings for
employers who would not need to add additional handrails to stair rail
systems in accordance with the 2016 rulemaking that effectively
precluded combination
[[Page 27335]]
stair rails for new installations after January 17, 2017. Therefore,
OSHA characterizes any potential cost savings from this proposed
rulemaking in qualitative terms and not quantitatively, and the agency
requests public comment on this question of potential cost savings from
the proposed clarification of the regulatory language for Sec.
1910.29(f)(1) Handrails and stair rail systems.
Because this action will impose no new or additional compliance
burden on the affected employers and therefore no new or additional
costs, OSHA has determined that the proposed revisions to the standard
are economically feasible. OSHA requests public comment on this
preliminary assessment.
This proposed rule is not an ``economically significant regulatory
action'' under Executive Order 12866 or UMRA, or a ``major rule'' under
the Congressional Review Act (5 U.S.C. 801 et seq.). Neither the
benefits nor the costs of this proposed rule would exceed $100 million
in any given year. Furthermore, because the proposed rule would not
impose any costs, OSHA certifies that it would not have a significant
impact on a substantial number of small entities.
V. Applicability of Existing National Consensus Standards
Section 6(b)(8) of the Occupational Safety and Health Act of 1970
(``the Act''; 29 U.S.C. 655(b)(8)) requires OSHA to publish ``a
statement of the reasons why the rule as adopted will better effectuate
the purposes of the Act than the national consensus standard.'' OSHA
included that explanation when it adopted new rules in the 2016
rulemaking (81 FR 82807). This proposed rule would modify two of the
provisions adopted in 2016, but does not adopt separate new rules.
VI. OMB Review Under the Paperwork Reduction Act of 1995
This proposal to update and revise the requirements for handrails
and stair rail systems in the Walking-Working Surfaces Standards
contains no information collection requirements subject to OMB approval
under the Paperwork Reduction Act of 1995 (PRA), U.S.C. 3501 et seq.,
and the implementing regulations at 5 CFR part 1320. The PRA 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 the PRA, a federal
agency cannot conduct or sponsor a collection of information unless OMB
approves it, and the agency displays a valid OMB control number (44
U.S.C. 3507). Also, notwithstanding any other provision of law, no
employer shall be subject to penalty for failing to comply with a
collection of information if the collection of information does not
display a valid OMB control number (44 U.S.C. 3512). The information
collections related to walking-working surfaces standards for general
industry--29 CFR 1910.23(b)(10), 29 CFR 1910.27(b)(1)(i) and (ii), and
29 CFR 1910.28(b)(1)--have been approved under OMB control number 1218-
0199. The existing currently approved information collections would not
be affected by this proposal and therefore would go forward unchanged.
The Department welcomes any comments on this preliminary determination.
VII. Federalism
OSHA reviewed this NPRM in accordance with the Executive Order on
Federalism (Executive Order 13132, 64 FR 43255, August 10, 1999), which
requires that federal agencies, to the extent possible, refrain from
limiting state policy options, consult with states prior to taking any
actions that would restrict state policy options, and take such actions
only when clear constitutional authority exists and the problem is
national in scope. Executive Order 13132 provides for preemption of
state law only with the expressed consent of Congress. Any such
preemption must be limited to the extent possible.
Under section 18 of the Occupational Safety and Health Act of 1970
(``OSH Act''; U.S.C. 651 et seq.), Congress expressly provides that
states may adopt, with federal approval, a plan for the development and
enforcement of occupational safety and health standards; states that
obtain federal approval for such a plan are referred to as ``State-Plan
States'' (29 U.S.C. 667). Occupational safety and health standards
developed by State-Plan States must be at least as effective in
providing safe and healthful employment and places of employment as the
federal standards. Subject to these requirements, State-Plan States are
free to develop and enforce their own requirements for occupational
safety and health standards.
OSHA previously concluded that promulgation of subpart D complies
with Executive Order 13132 (81 FR 82975). That analysis applies to this
proposed rule, which would clarify several provisions and expand the
number of existing stair rail systems exempted from modification
requirements; therefore, this proposed rule complies with Executive
Order 13132.
VIII. State Plans
When Federal OSHA promulgates a new standard or a more stringent
amendment to an existing standard, states and U.S. territories with
their own OSHA-approved occupational safety and health plans (``State
Plans'') must either amend their standards to be identical or ``at
least as effective as'' the new standard or amendment, or show that an
existing state standard covering this area is ``at least as effective''
as the new federal standard or amendment (29 U.S.C. 667(c)(2); 29 CFR
1953.5(a)). State Plans' adoption must be completed within six 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 Plans
do not have to amend their standards, although OSHA may encourage them
to do so.
Of the 28 states and territories with OSHA-approved State Plans, 22
cover public and private-sector employees: 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. The
remaining six states and territories cover only state and local
government employees: Connecticut, Illinois, Maine, New Jersey, New
York, and the Virgin Islands.
The proposed amendments to Sec. 1910.28(b), clarifying that a
handrail is required on the open side of certain stairways, are
important corrections that are necessary for worker protection. OSHA
has preliminarily determined that within six months of the rule's final
promulgation date, each State Plan would be required to review its
standards and revise their standards to include this handrail
requirement unless the State Plan can demonstrate that such revisions
are not necessary because the existing standards, and the enforcement
of the standards, are already at least as effective.
The proposed amendments to Sec. 1910.29(f) expand the existing
grandfather provision for previously-installed stair systems, are
permissive, and are clarifying in nature without imposing any new
requirement. OSHA does not view the proposed amendments as more
stringent than the existing standard, so OSHA has preliminarily
determined that State
[[Page 27336]]
Plans would not be required to adopt the expanded grandfather
provision. State Plans States may, however, choose to conform their
standards to allow employers this increased flexibility.
OSHA invites comments on these preliminary determinations.
IX. Unfunded Mandates Reform Act
OSHA reviewed this proposed 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). As discussed above in section IV of this
preamble (``Preliminary Economic Analysis and Initial Regulatory
Flexibility Screening Analysis''), the agency does not expect the
private-sector employers to incur any new costs not previously
accounted for in the economic analysis of the 2016 rule. While this
proposed 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).
Under voluntary agreement with OSHA, some 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 had included compliance costs for
the affected public sector entities in the analysis of the expected
impacts associated with the 2016 rulemaking, neither that rulemaking
nor this proposal would involve any unfunded mandates being imposed on
any state or local government entity. Consequently, this proposed rule
does not meet the definition of a ``Federal intergovernmental mandate''
(See section 421(5) of the UMRA (2 U.S.C. 658(5))). Therefore, for the
purposes of the UMRA, the agency preliminarily certifies that this
proposed rule does not mandate that state, local, and tribal
governments adopt new, unfunded regulatory obligations.
X. Consultation and Coordination With Indian Tribal Governments
The Department has reviewed this proposed rule in accordance with
Executive Order 13175, (65 FR 67249 (Nov. 9, 2000)) and has determined
that it does not have ``tribal implications'' as defined in that order.
The proposed 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.
List of Subjects in 29 CFR 1910
Falls, Handrails, Occupational safety and health, Stair rail
systems, Walking-working surfaces.
XI. Authority and Signature
This document was prepared under the direction of James S.
Frederick, Acting 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 1-2012 (77 FR 3912 (1/25/2012),
and 29 CFR part 1911.
Signed at Washington, DC, on May 13, 2021.
James S. Frederick,
Acting Assistant Secretary of Labor for Occupational Safety and Health.
XII. Proposed Regulatory Text
Pursuant to sections 4, 6, and 8 of the OSH Act of 1970 (29 U.S.C.
653, 655, 657), Secretary of Labor's Order No. 5-2007 (72 FR 31159),
and 29 CFR part 1911, OSHA proposes to amend subpart D of 29 CFR part
1910 as follows:
PART 1910--OCCUPATIONAL SAFETY AND HEALTH STANDARDS
Subpart D--Walking-Working Surfaces
0
1. The authority citation for part 1910, subpart D, is revised 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), 1-2012 (77 FR 3912), and 08-2020 (85 FR 58393), as
applicable; and 29 CFR part 1911.
0
2. Amend Sec. 1910.28 by revising paragraph (b)(11) to read as
follows:
Sec. 1910.28 Duty to have fall protection and falling object
protection.
* * * * *
(b) * * *
(11) * * *
(ii) Each flight of stairs, having at least 3 treads and at least 4
risers, installed on or after (date 60 days after the publication date
of the final rule) is equipped with stair rail systems and handrails as
follows:
Table D-2--Stairway Handrail and Stair Rail System Requirements
----------------------------------------------------------------------------------------------------------------
With earth built
Stair width Enclosed One open side Two open sides up on both sides
----------------------------------------------------------------------------------------------------------------
Less than 44 inches (1.1 m)..... At least one One stair rail One stair rail ..................
handrail. system with system with
handrail on open handrail on each
side. open side.
44 inches (1.1 m) to 88 inches One handrail on One stair rail One stair rail ..................
(2.2 m). each enclosed system with system with
side. handrail on open handrail on each
side and one open side.
handrail on
enclosed side.
Greater than 88 inches (2.2 m).. One handrail on One stair rail One stair rail ..................
each enclosed system with system with
side and one handrail on open handrail on each
intermediate side, one open side and one
handrail located handrail on intermediate
in the middle of enclosed side, handrail located
the stair. and one in the middle of
intermediate the stair.
handrail located
in the middle of
the stair.
Exterior stairs less than 44 .................. .................. .................. One handrail on at
inches (1.1 m). least one side.
----------------------------------------------------------------------------------------------------------------
Note to table: The width of the stair must be clear of all obstructions except handrails.
(iii) Each flight of stairs, having at least 3 treads and at least
4 risers, that is less than 44 inches (1.1 m) wide, that has two open
sides, and was installed before (date 60 days after the publication
date of the final rule) must have a stair rail system on each open
side, but a handrail is not required.
(iv) Each ship stairs and alternating tread type stairs is equipped
with handrails on both sides.
* * * * *
0
3. Amend Sec. 1910.29 by revising paragraph (f)(1) to read as follows:
Sec. 1910.29 Fall protection systems and falling object protection--
criteria and practices.
* * * * *
(f) * * *
(1) * * *
(ii) * * *
(A) For stair rail systems installed before (date 60 days after the
publication date of the final rule):
[[Page 27337]]
(1) The height is not less than 30 inches (76 cm), as measured from
the leading edge of the stair tread to the top surface of the top rail;
and
(2) The top rail may serve as a handrail only when the height of
the stair rail system is 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 top rail (see Figure D-13 of this
section).
(B) For stair rail systems installed on or after (date 60 days
after the publication date of the final rule), the height is not less
than 42 inches (107 cm), as measured from the leading edge of the stair
tread to the top surface of the top rail (see Figure D-13A of this
section). Stair rail systems installed on or after (date 60 days after
the publication date of the final rule), must have a separate handrail
that meets the requirements of 29 CFR 1910.29(f)(1)(i).
* * * * *
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[FR Doc. 2021-10561 Filed 5-19-21; 8:45 am]
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