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

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AGENCY:

Occupational Safety and Health Administration (OSHA), Labor.

ACTION:

Final rule.

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.

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FOR FURTHER INFORMATION CONTACT:

Press inquiries: Mr. Frank Meilinger, Director, Office of Communications, OSHA, U.S. Department of Labor, Room N-3647, 200 Constitution Avenue NW., Washington, DC 20210; telephone (202) 693-1999; email meilinger.francis2@dol.gov.

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

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

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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

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 http://www.regulations.gov, the Federal eRulemaking Portal.

Citations to documents in Docket No. OSHA-2007-0072: This document references exhibits in this rulemaking record, Docket No. OSHA-2007-0072, as “Ex.,” followed by the last sequence Start Printed Page 82495of numbers in the document identification (ID) number. For example, “Ex. 44” is a reference to document ID number OSHA-2007-0072-0044 in this rulemaking docket.

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

Citations to other dockets: This document also references other OSHA dockets. Documents in those dockets are cited as the docket number followed by the last sequence of numbers in the document ID number. For example, “Ex. OSHA-S029-2006-0662-0014” refers to “Docket No. OSHA-S029-2006-0662, Ex. 14” in the 2003 reopening of the rulemaking record on subparts D and I (formerly Docket No. S-029).

Docket: The exhibits in this rulemaking docket (Docket No. OSHA-2007-0072), as well as the dockets OSHA incorporated by reference in this rulemaking, are available to read and download by searching the docket number or document ID number at http://www.regulations.gov. Each docket index lists all documents and exhibits in that docket, including public comments, supporting materials, hearing transcripts, and other documents. However, some documents (e.g., copyrighted material) in those dockets are not available to read or download from that website. All documents are available for inspection and copying at the OSHA Docket Office, Room N-2625, U.S. Department of Labor, 200 Constitution Avenue NW., Washington, DC 20210; telephone number (202) 693-2350 (OSHA TTY (887) 889-5627).

B. Introduction and Basis for Agency Action

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

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

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

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

The final rule also increases consistency by incorporating provisions from other standards OSHA adopted more recently, including Powered Platforms for Building Maintenance (29 CFR 1910.66) and Scaffolds, Ladders and Other Working Surfaces in Shipyard Employment (29 CFR part 1915, subpart E).[1] In particular, § 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 non-mandatory 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 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 Start Printed Page 82496the 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.

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.Start Printed 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 (§ 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, Start Printed Page 8249879,593 (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 (§§ 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.

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.

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, Start Printed Page 82499Administrative 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.

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.

Start Printed 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 § 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 Start Printed Page 82501of 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 Start Printed Page 82502compliance. The following table lists the sections in final subpart D and the corresponding sections in the existing subpart:

Section 1910.21—Scope and Definitions

Final § 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 (§ 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., § 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 Start Printed Page 82503propelled 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 walking-working 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 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 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 § 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 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 Start Printed Page 82504Administrators (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, 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 Start Printed Page 82505establishments 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.

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; Start Printed Page 82506OSHA-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 Start Printed Page 82507Safety 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]

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 Start Printed Page 82508trolley 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 Start Printed Page 82509railroad 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:

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]

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. Start Printed Page 82510Replacement 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 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, 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 Start Printed Page 82511standards (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 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 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 Start Printed Page 82512workers 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 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 § 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.

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 § 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 Start Printed Page 82513the 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. “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 § 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 (§§ 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 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 (§ 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.

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 § 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 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 § 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.Start Printed 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 (§ 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” 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 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 § 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. 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 § 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 “individual-rung ladders” as stated in the final definition of “fixed ladders.” Manhole steps also do not include manhole entry Start Printed Page 82515ladders 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 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 §§ 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 § 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 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 Start Printed Page 82516(§ 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 § 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 (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 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 § 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 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 § 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 Start Printed Page 82517§ 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”:

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 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 § 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., Start Printed Page 82518anchorages, 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 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 (§ 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 § 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 § 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 Start Printed Page 82519a 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, 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.

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 § 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 (§ 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 Start Printed Page 82520consistent 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 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 walking-working 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 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 height-specification 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 Start Printed Page 82521surfaces,” but the final definition is similar to the definition for “walking-working 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 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 § 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 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 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 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 § 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. Walking-working 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 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 Start Printed Page 82522believes 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 mechanical-handling 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 “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 § 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 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 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 Start Printed Page 82523Section 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 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, 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 § 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 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 (§ 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 Start Printed Page 82524standard (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:

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 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 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 § 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) 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: Start Printed 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 § 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 § 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 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). Start Printed Page 82526Second, 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 § 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 § 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 § 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 § 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) 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)).Start Printed 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 § 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)):

[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 § 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:

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).

Start Printed 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” (§ 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 (§ 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 § 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 § 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 Start Printed Page 82529employers 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 § 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 § 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 § 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).

Start Printed 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 § 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 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 Start Printed Page 82531that 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 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, 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 § 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, Start Printed Page 82532and 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 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 (§ 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 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 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 Start Printed Page 82533final 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 (§ 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 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 (§ 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. Start Printed Page 82534OSHA 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 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). 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 Start Printed Page 82535tip-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 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 § 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 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 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 Start Printed Page 82536with 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).

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 Start Printed 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 (§ 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 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 (§ 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.Start Printed 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 § 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 § 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.

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” (§§ 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 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 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 Start Printed Page 82539burden 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 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 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, 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 (§ 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 Start Printed Page 82540ladders (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 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.

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 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 §§ 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 (§ 1910.21(b)). Fixed ladders do not include ship stairs, stepbolts, or manhole steps.

Final paragraph (d)(1), like the proposed rule, establishes a Start Printed Page 82541performance-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 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 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 Start Printed Page 82542on 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).

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 performance-based 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 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., “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 Start Printed Page 82543that 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 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 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 § 1910.27(c)(6) in several ways. First, the final rule establishes specific step-across distances for each through and side-step ladder (§ 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 (§ 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 (§ 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 Start Printed Page 82544employers 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).

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 §§ 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 (§ 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., § 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:

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 (§ 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 Start Printed Page 82545length (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 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 (§ 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 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 Start Printed Page 82546climbing 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. 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 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 § 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 (§ 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 Start Printed 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 (§ 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 (§ 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 § 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 Start Printed Page 82548platform 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 (§ 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;
  • 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));
  • 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 Start Printed Page 82549to 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.

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 § 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 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 § 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).Start Printed 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 § 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 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 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 Start Printed Page 82551retrofitting 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 walking-working 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:

A load factor, αL = 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 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 5/8-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]

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 Start Printed Page 82552standard (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 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 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 Start Printed Page 82553requirements 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 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 § 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 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 Start Printed Page 82554do 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 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 § 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 § 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)) 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 plain-language 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.Start Printed 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, § 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 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 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)).

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 § 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 Start Printed Page 82556requirements 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 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 § 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 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 20-inch platform depth requirement for existing stairways. Increasing the platform depth requirement to a minimum 22 inches is consistent with Start Printed Page 82557the 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 § 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.

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 Start Printed Page 82558stairs 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 “non-standard 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.

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 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:

  • 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 (§ 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 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 Start Printed Page 82559when 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] ).

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 § 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 Start Printed Page 82560A1264.1-2007, 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.

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 (§ 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 Start Printed Page 82561employees 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 (§ 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 Start Printed Page 82562for 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 § 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 § 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.

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 Start Printed Page 82563contains 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.

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 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 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 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 § 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 Start Printed Page 82564and 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 23/4 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 § 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 Start Printed Page 82565secure 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 (§ 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.

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 Start Printed Page 82566mechanically, 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 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 § 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]

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 §§ 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 Start Printed Page 82567compliance 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 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 Start Printed Page 82568RDS (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 Start Printed Page 82569on 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:

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 § 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 “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 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).Start Printed 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 (§ 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 § 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, 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 Start Printed Page 82571outside 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:

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)).

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 Start Printed Page 82572employee 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:

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).

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 Start Printed Page 82573make 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)).Start Printed 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, § 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).

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 Start Printed Page 82575should 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.

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 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' Start Printed Page 82576recommendation, 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 § 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 Start Printed Page 82577(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 5,000-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 § 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 § 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 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 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 Start Printed Page 82578mitigate 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 § 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 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 Start Printed Page 82579said 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 Start Printed Page 82580usually 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 Start Printed Page 82581and 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?
  • 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:

Start Printed 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 § 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 Start Printed Page 82583that 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 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 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 Start Printed Page 82584have 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 Start Printed Page 82585restraint 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 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 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 “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 Start Printed Page 82586to 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 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 § 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 Start Printed Page 82587inspecting, 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 § 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 (§ 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 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 (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 § 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 walking-working surfaces not otherwise addressed (proposed paragraph (b)(13)(ii)).

After reviewing the rulemaking record, as well as OSHA's letters of Start Printed Page 82588interpretation 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 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 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.

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 Start Printed Page 82589level” (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