81 FR 82494 - Walking-Working Surfaces and Personal Protective Equipment (Fall Protection Systems)
DEPARTMENT OF LABOR Occupational Safety and Health Administration
Federal Register Volume 81, Issue 223 (November 18, 2016)
Page Range
82494-83006
FR Document
2016-24557
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.
Federal Register, Volume 81 Issue 223 (Friday, November 18, 2016)
[Federal Register Volume 81, Number 223 (Friday, November 18, 2016)]
[Rules and Regulations]
[Pages 82494-83006]
From the Federal Register Online [www.thefederalregister.org]
[FR Doc No: 2016-24557]
[[Page 82493]]
Vol. 81
Friday,
No. 223
November 18, 2016
Part VII
Book 3 of 3 Books
Pages 82493-83106
Department of Labor
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Occupational Safety and Health Administration
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29 CFR Part 1910
Walking-Working Surfaces and Personal Protective Equipment (Fall
Protection Systems); Final Rule
Federal Register / Vol. 81 , No. 223 / Friday, November 18, 2016 /
Rules and Regulations
[[Page 82494]]
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DEPARTMENT OF LABOR
Occupational Safety and Health Administration
29 CFR Part 1910
[Docket No. OSHA-2007-0072]
RIN 1218[dash]AB80
Walking-Working Surfaces and Personal Protective Equipment (Fall
Protection Systems)
AGENCY: Occupational Safety and Health Administration (OSHA), Labor.
ACTION: Final rule.
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SUMMARY: OSHA is revising and updating its general industry standards
on walking-working surfaces to prevent and reduce workplace slips,
trips, and falls, as well as other injuries and fatalities associated
with walking-working surface hazards. The final rule includes revised
and new provisions addressing, for example, fixed ladders; rope descent
systems; fall protection systems and criteria, including personal fall
protection systems; and training on fall hazards and fall protection
systems. In addition, the final rule adds requirements on the design,
performance, and use of personal fall protection systems.
The final rule increases consistency between the general industry
and construction standards, which will make compliance easier for
employers who conduct operations in both industry sectors. Similarly,
the final rule updates requirements to reflect advances in technology
and to make them consistent with more recent OSHA standards and
national consensus standards. OSHA has also reorganized the
requirements and incorporated plain language in order to make the final
rule easier to understand and follow. The final rule also uses
performance-based language whenever possible to give employers greater
compliance flexibility.
DATES: Effective date: This final rule becomes effective on January 17,
2017. Some requirements in the final rule have compliance dates after
the effective date. For further information on those compliance dates,
see Section XI of the SUPPLEMENTARY INFORMATION section. In addition,
this final rule contains information collections subject to the Office
of Management and Budget (OMB) approval under the Paperwork Reduction
Act, and the Department is submitting requests to OMB to obtain that
approval. The information collections will not take effect until the
date OMB approves the information collection request or the date the
requirement would take effect as explained elsewhere in this document.
The Department will publish a document in the Federal Register to
announce OMB's disposition of the information collection requests.
ADDRESSES: In accordance with 28 U.S.C. 2112(a)(2), OSHA designates Ms.
Ann Rosenthal, Associate Solicitor of Labor for Occupational Safety and
Health, Office of the Solicitor, U.S. Department of Labor, Room S-4004,
200 Constitution Avenue NW., Washington, DC 20210, to receive petitions
for review of the final rule.
FOR FURTHER INFORMATION CONTACT:
Press inquiries: Mr. Frank Meilinger, Director, Office of
Communications, OSHA, U.S. Department of Labor, Room N-3647, 200
Constitution Avenue NW., Washington, DC 20210; telephone (202) 693-
1999; email [email protected].
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
[email protected].
Copies of this Federal Register document: Copies of this Federal
Register document are available at http://www.regulations.gov, the
Federal eRulemaking Portal. Copies also are available at OSHA Office of
Publications, U.S. Department of Labor, Room N-3101, 200 Constitution
Avenue NW., Washington, DC 20210; telephone (202) 693-1888 (OSHA's TTY
(887) 889-5627). This document, as well as news releases and other
relevant documents, are available on OSHA's website at http://www.osha.gov.
SUPPLEMENTARY INFORMATION:
Table of Contents
The following table of contents identifies the major sections of
the preamble to the final rule:
I. Background
A. References and Exhibits
B. Introduction and Basis for Agency Action
C. Summary of the Final Economic Analysis
D. Events Leading to the Final Rule
II. Analysis of Risk
A. Introduction
B. Nature of the Risk
C. Fatality and Injury Data
III. Pertinent Legal Authority
IV. Summary and Explanation of the Final Rule
A. Final Subpart D
B. Final Sec. 1910.140
C. Other Revisions to 29 CFR Part 1910
V. Final Economic and Final Regulatory Flexibility Screening
Analysis
A. Introduction
B. Assessing the Need for Regulation
C. Profile of Affected Industries, Firms, and Workers
D. Benefits, Net Benefits, Cost Effectiveness, and Sensitivity
Analysis
E. Technological Feasibility
F. Costs of Compliance
G. Economic Feasibility and Regulatory Flexibility Screening
Analysis
H. Regulatory Flexibility Screening Analysis
I. Sensitivity Analyses
J. References
VI. Federalism
VII. State-Plan Requirements
VIII. Unfunded Mandates Reform Act
IX. Consultation and Coordination With Indian Tribal Governments
X. Office of Management and Budget Review Under the Paperwork
Reduction Act of 1995
XI. Dates
I. Background
A. References and Exhibits
This Federal Register document references materials in Docket No.
OSHA-2007-0072, which is the docket for this rulemaking. OSHA also
references documents in the following dockets, which the Agency
incorporates by reference into this rulemaking:
1990 proposed rule on Walking and Working Surfaces (29 CFR
1910, subpart D)--Docket No. OSHA-S041-2006-0666 (formerly Docket No.
S-041);
1990 proposed rule on Personal Protective Equipment--Fall
Protection--Docket No. OSHA-S057-2006-0680 (formerly Docket No. S-057);
2003 reopening of the rulemaking record--Docket No. OSHA-
S029-2006-0662 (formerly Docket No. S-029);
1994 final rule on Fall Protection in the Construction
Industry--Docket No. OSHA-S206-2006-0699 (formerly Docket No. S-206);
1983 and 1985 proposed rules on Powered Platforms for
Building Maintenance--Docket Nos. OSHA-S700-2006-0722 and OSHA-S700A-
2006-0723 (formerly Dockets Nos. S-700 and S-700A, respectively); and
2014 final rule on Electric Power Generation,
Transmission, and Distribution; Electrical Protective Equipment--Docket
No. OSHA-S215-2006-0063 (Formerly Docket No. S-215).
All of these dockets are available for viewing at 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
[[Page 82495]]
of numbers in the document identification (ID) number. For example,
``Ex. 44'' is a reference to document ID number OSHA-2007-0072-0044 in
this rulemaking docket.
Citations to the transcripts of the rulemaking hearing: This
document includes citations to the informal public hearing on the
proposed rule. All of the hearing transcripts are included in exhibit
329. Thus, ``Ex. 329 (1/19/2011, p. 75)'' refers to page 75 of the
January 19, 2011, hearing transcript.
Citations to other dockets: This document also references other
OSHA dockets. Documents in those dockets are cited as the docket number
followed by the last sequence of numbers in the document ID number. For
example, ``Ex. OSHA-S029-2006-0662-0014'' refers to ``Docket No. OSHA-
S029-2006-0662, Ex. 14'' in the 2003 reopening of the rulemaking record
on subparts D and I (formerly Docket No. S-029).
Docket: The exhibits in this rulemaking docket (Docket No. OSHA-
2007-0072), as well as the dockets OSHA incorporated by reference in
this rulemaking, are available to read and download by searching the
docket number or document ID number at http://www.regulations.gov. Each
docket index lists all documents and exhibits in that docket, including
public comments, supporting materials, hearing transcripts, and other
documents. However, some documents (e.g., copyrighted material) in
those dockets are not available to read or download from that website.
All documents are available for inspection and copying at the OSHA
Docket Office, Room N-2625, U.S. Department of Labor, 200 Constitution
Avenue NW., Washington, DC 20210; telephone number (202) 693-2350 (OSHA
TTY (887) 889-5627).
B. Introduction and Basis for Agency Action
Workers in many diverse general industry workplaces are exposed to
walking-working surface hazards that can result in slips, trips, falls
and other injuries or fatalities. According to the Bureau of Labor
Statistics (BLS) data, slips, trips, and falls are a leading cause of
workplace fatalities and injuries in general industry, which indicates
that workers regularly encounter these hazards (see Section II below).
The final rule covers all general industry walking-working
surfaces, including but not limited to, floors, ladders, stairways,
runways, dockboards, roofs, scaffolds, and elevated work surfaces and
walkways. To protect workers from hazards associated with those
surfaces, particularly hazards related to falls from elevations, the
final rule updates and revises the general industry Walking-Working
Surfaces standards (29 CFR part 1910, subpart D). The final rule
includes revised and new provisions that address, for example, fixed
ladders; rope descent systems; fall protection systems and criteria,
including personal fall protection systems; and training on fall
hazards and fall protection systems. In addition, the final rule adds
new requirements on the design, performance, and use of personal fall
protection systems to the general industry Personal Protective
Equipment (PPE) standards (29 CFR part 1910, subpart I). These and
other measures the final rule incorporates reflect advances in
technology and industry best practices that have been developed since
OSHA adopted subpart D in 1971.
The final rule also gives employers greater flexibility to prevent
and eliminate walking-working surface hazards. For example, the final
rule, like the construction Fall Protection Standards (29 CFR part
1926, subpart M), gives employers flexibility to protect workers from
falling to a lower level by using personal fall protection systems,
including personal fall arrest, travel restraint, and work positioning
systems; instead of requiring the use of guardrail systems, which the
existing rule mandates. In addition, consistent with section 6(b)(5) of
the Occupational Safety and Health Act of 1970 (OSH Act) (29 U.S.C.
651, 655(b)(5)) the final rule uses performance-based language in place
of specification language, where possible, to increase compliance
flexibility for employers. OSHA believes the flexibility the final rule
provides will allow employers to select and provide the controls they
determine will be most effective in the particular workplace operation
or situation to protect their workers and prevent injuries and
fatalities from occurring.
The final rule also increases harmonization between OSHA standards,
which many stakeholders requested. Of particular importance, OSHA
increased consistency between the final rule and OSHA's construction
Scaffolds, Fall Protection, and Stairway and Ladder standards (29 CFR
part 1926, subparts L, M, and X), which makes compliance easier for
employers who conduct operations in both industry sectors. The
revisions in and additions to the final rule will allow employers to
use the same fall protection systems and equipment and follow the same
practices when they perform either general industry or construction
activities.
The final rule also increases consistency by incorporating
provisions from other standards OSHA adopted more recently, including
Powered Platforms for Building Maintenance (29 CFR 1910.66) and
Scaffolds, Ladders and Other Working Surfaces in Shipyard Employment
(29 CFR part 1915, subpart E).\1\ In particular, Sec. 1910.140 drew
personal fall arrest system requirements from Appendix C (Mandatory) of
the Powered Platform standard (Sec. 1910.66). The experience OSHA
gained on that standard shows that those requirements are effective in
protecting workers from fall hazards.
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\1\ Where necessary, the final rule also revises provisions in
some current general industry standards (e.g., 29 CFR part 1910,
subparts F, N, and R) to ensure that they are consistent with the
final rule (See Section IV(C) below).
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OSHA also drew many provisions in the final rule from national
consensus standards, including ANSI/ASSE A1264.1-2007, Safety
Requirements for Workplace Walking/Working Surfaces and Their Access;
Workplace, Floor, Wall and Roof Openings; Stairs and Guardrail Systems;
ANSI/ASSE Z359.1-2007, Safety Requirements for Personal Fall Arrest
Systems, Subsystems and Components; and ANSI/IWCA I-14.1-2001, Window
Cleaning Safety Standard. Many stakeholders recommended that OSHA
incorporate the requirements in those standards into the final rule.
OSHA agrees with stakeholders that national consensus standards
represent industry best practices and reflect advancements in
technology, methods, and practices developed in the years since the
Agency adopted the existing rule.
OSHA also has made the final rule easier to understand and follow
by reorganizing and consolidating provisions, using plain language, and
adding informational tables, illustrations, and appendices. For
example, the final rule adds two non-mandatory appendices to final
Sec. 1910.140 that address planning for, selecting, using, and
inspecting personal fall protection systems (appendix C) and test
methods and procedures for personal fall arrest work positioning
systems (appendix D).
OSHA's efforts to revise and update the existing walking-working
surfaces standards have been ongoing since 1973. Over that time, OSHA
has gathered and analyzed a large body of data and information on
walking-working surface hazards and methods to prevent and eliminate
them. After careful examination and analysis of the rulemaking record
as a whole, OSHA has determined that the requirements in this final
rule will significantly reduce
[[Page 82496]]
the number of worker deaths and injuries that occur each year due to
these hazards, particularly workplace slip, trip, and fall fatalities
and injuries. OSHA estimates that final standard rule will prevent 29
fatalities and 5,842 injuries annually (See Sections II and V).
OSHA believes that many employers already are in compliance with
many provisions in the final rule; therefore, they should not have
significant problems implementing it. OSHA also has included measures
to make implementation of the final rule easier for employers. The
final rule provides extended compliance dates for implementing some
requirements and applies other requirements only prospectively. For
example, the final rule gives employers as much as 20 years to equip
fixed ladders with personal fall arrest or ladder safety systems.
Moreover, since the final rule incorporates requirements from national
consensus standards, most equipment manufacturers already provide
equipment and systems that meet the requirements of the final rule.
C. Summary of the Final Economic Analysis
The OSH Act requires OSHA to make certain findings with respect to
standards. One of these findings, specified by Section 3(8) of the OSH
Act, requires an OSHA standard to address a significant risk and to
reduce this risk significantly. (See Industrial Union Dep't v. American
Petroleum Institute, 448 U.S. 607 (1980).) As discussed in Section II
of this preamble, OSHA finds that slips, trips, and falls constitute a
significant risk, and estimates that the final standard will prevent 29
fatalities and 5,842 injuries annually. Section 6(b) of the OSH Act
requires OSHA to determine if its standards are technologically and
economically feasible. As discussed in Section V of this preamble, OSHA
finds that this final standard is economically and technologically
feasible. The table below summarizes OSHA's findings with respect to
the estimated costs, benefits, and net benefits of this standard. The
annual benefits are significantly in excess of the annual costs.
However, it should be noted that under the OSH Act, OSHA does not use
the magnitude of net benefits as the decision-making criterion in
determining what standards to promulgate.
The Regulatory Flexibility Act (5 U.S.C. 601, as amended) requires
that OSHA determine whether a standard will have a significant economic
impact on a substantial number of small firms. As discussed in Section
V, the Assistant Secretary examined the small firms affected by this
final rule and certifies that these provisions will not have a
significant impact on a substantial number of small firms.
[GRAPHIC] [TIFF OMITTED] TR18NO16.096
D. Events Leading to the Final Rule
Existing standards. In 1971, OSHA adopted the existing general
industry standards on Walking-Working Surfaces (29 CFR part 1910,
subpart D) and Personal Protective Equipment (PPE) (29 CFR part 1910,
subpart I) pursuant to Section 6(a) of the OSH Act (29 U.S.C. 655(a)).
Section 6(a) permitted OSHA, during the first two years following the
effective date of the OSH Act, to adopt as occupational safety and
health standards any established Federal and national consensus
standards. OSHA adopted the subpart D and I standards from national
consensus standards in existence at the time. Since then, those
national consensus standards have been updated and revised, some
several times, to incorporate advancements in technology and industry
best practices. OSHA's existing walking-working surfaces standards have
not kept pace with those advancements.
[[Page 82497]]
Early rulemaking efforts. In 1973, OSHA published a proposed rule
to revise the subpart D standards (38 FR 24300 (9/6/1973)), but
withdrew the proposal in 1976, saying it was outdated (41 FR 17227 (4/
23/1976)). That year OSHA conducted stakeholder meetings around the
country to obtain public comment on revising subpart D. After reviewing
information gathered from those meetings, OSHA determined that it
needed to gather additional scientific and technical data, research,
and information to support effective revisions to subpart D.
From 1976 through the 1980s, OSHA gathered a large body of
scientific and technical research and information, including:
Recommendations for fall prevention, ladders, scaffolds,
slip resistance, and handrails from the University of Michigan;
Studies on guardrails, slip resistance, scaffolds, and
fall prevention from the National Bureau of Standards (now the National
Institute of Standards and Technology);
Analysis of various walking-working surfaces by Texas Tech
University;
Accident, injury, and fatality data from the Bureau of
Labor Statistics (BLS); and
National consensus standards from the American National
Standards Institute (ANSI), American Society of Testing and Materials
(ASTM), and the American Society of Mechanical Engineers (ASME).
1990 proposed rules. The data, research, and information OSHA
gathered provided the basis for OSHA's 1990 companion proposals to
revise and update the walking-working surfaces standards in subpart D
(55 FR 13360 (4/10/1990)) and add personal fall protection system
requirements to subpart I (55 FR 13423 (4/10/1990)). The two proposals
were interdependent with respect to personal fall protection systems.
That is, the subpart D proposal would have established a ``duty to
provide'' fall protection, including personal fall protection systems
while the subpart I proposal would have established design,
performance, and use criteria for personal fall protection systems.
OSHA received comments and held an informal public hearing on the
two proposals (55 FR 29224), but did not finalize either.
1994 final rule revising subpart I. In 1994, OSHA published a final
rule updating the general industry PPE standards (59 FR 16334 (4/6/
1994)). The final rule added new general provisions requiring that
employers conduct hazard assessments; select proper PPE; remove
defective or damaged PPE from service; and provide worker training in
the proper use, care, and disposal of PPE (Sec. 1910.132). It also
revised design, selection, and use requirements for specific types of
PPE. However, the final rule did not apply the new general provisions
to personal fall protection systems or include specific requirements
addressing such systems.
2003 record reopening. On May 2, 2003, OSHA published a notice
reopening the record on the subpart D and I rulemakings to refresh the
record, which had grown stale in the years since OSHA published the
1990 proposed rules (68 FR 23528). Based on comments and information
OSHA received, including information on significant technological
advances in fall protection, particularly personal fall protection
systems, OSHA determined that a new proposed rule was needed.
2010 proposed rule. On May 24, 2010, OSHA published a consolidated
proposed rule on subparts D and I (75 FR 28862). The Agency provided 90
days, until August 23, 2010, for stakeholders to submit comments on the
proposed rule, the preliminary economic analysis, and the issues the
Agency raised in the proposal. The Agency received 272 comments,
including comments from workers, employers, trade associations,
occupational safety and health consultants, manufacturers, labor
representatives, and government agencies (Exs. 52 through 326).
Several stakeholders requested an informal public hearing on the
proposed rule (Exs. 172; 178; 180; 201; 256). OSHA granted the requests
for a public hearing (75 FR 69369 (11/10/2010)), and convened the
hearing on January 18, 2011, in Washington, DC (Ex. 329).
Administrative Law Judge John M. Vittone presided over the four-day
hearing during which 39 stakeholders presented testimony (Ex. 329). At
the close of the hearing on January 21, 2011, Judge Vittone ordered
that the hearing record remain open for an additional 45 days, until
March 7, 2011, for the submission of new factual information and data
relevant to the hearing (Exs. 327; 330; 328). He also ordered that the
record remain open until April 6, 2011, for the submission of final
written comments, arguments, summations, and briefs (Exs. 327; 331-
370). On June 13, 2011, Judge Vittone issued an order closing the
hearing record and certifying it to the Assistant Secretary of Labor
for Occupational Safety and Health (Ex. 373).
II. Analysis of Risk
A. Introduction
To promulgate a standard that regulates exposure to workplace
hazards, OSHA must demonstrate that exposure to those hazards poses a
``significant risk'' of death or serious physical harm to workers, and
that the standard will substantially reduce that risk. The Agency's
burden to establish significant risk derives from the Occupational
Safety and Health Act of 1970 (OSH Act) (29 U.S.C. 651 et seq.).
Section 3(8) of the OSH Act requires that workplace safety and
health standards be ``reasonably necessary or appropriate to provide
safe or healthful employment and places of employment'' (29 U.S.C.
652(8)). A standard is reasonably necessary and appropriate within the
meaning of section 3(8) if it materially reduces a significant risk of
harm to workers. The Supreme Court, in the ``Benzene'' decision, stated
that section 3(8) ``implies that, before promulgating any standard, the
Secretary must make a finding that the workplaces in question are not
safe'' (Indus. Union Dep't, AFL-CIO v. Am. Petroleum Inst. (Benzene),
448 U.S. 607, 642 (1980)). Examining section 3(8) more closely, the
Court described OSHA's obligation to demonstrate significant risk:
``[S]afe'' is not the equivalent of ``risk-free.'' . . . [A]
workplace can hardly be considered ``unsafe'' unless it threatens
the workers with a significant risk of harm.
Therefore, before [the Secretary] can promulgate any permanent
health or safety standard, the Secretary is required to make a
threshold finding that the place of employment is unsafe--in the
sense that significant risks are present and can be eliminated or
lessened by a change in practices. (Id. (Emphasis in original)).
Relying on the U.S. Census' Statistics of U.S. Businesses for 2007,
OSHA estimates that 6.9 million general industry establishments
employing 112.3 million employees will be affected by the final
standard. For the industries affected by the final standard, OSHA
examined fatalities and lost-workday injuries for falls to a lower
level.
In the proposed rule, the Agency preliminarily concluded that falls
constitute a significant risk and that the proposed standards would
substantially reduce the risk of falls to employees (75 FR 28861,
28865-28866 (5/24/2010)). The analysis of U.S. Bureau of Labor
Statistics (BLS) data from 1992 to 2004 identified an annual average of
300 fatal falls, 213 (71 percent) of which resulted from falls to a
lower level and an annual average of 299,404 non-fatal falls resulting
in lost-workday injuries,
[[Page 82498]]
79,593 (26 percent) of which were as a result of falls to a lower
level. The Agency's analysis also estimated that compliance with the
proposed requirements in subparts D and I annually would prevent 20
fatal to a lower level and 3,706 lost-workday injuries due to falls to
a lower level.
Based on the analysis presented in this section, which OSHA updated
with more recent data, and in the Final Economic and Final Regulatory
Flexibility Screening Analysis (FEA) (Section V), OSHA determines that
workplace exposure to hazards associated with walking-working surfaces,
particularly the hazards of falling to a lower level, poses a
significant risk of serious physical harm or death to workers in
general industry. BLS data from 2006-2012 show that an average of 261
fatal falls to a lower level occurred annually in general industry. In
addition, BLS data for 2006-2012 indicate that an average of 48,379
lost-workday (LWD) injuries from falls to a lower level occurred
annually in general industry.
OSHA also concludes, based on this section and the FEA, that the
``practices, means, methods, operations, or processes'' the final rule
requires will substantially reduce that risk. Specifically, the Agency
estimates that full compliance with the final rule will prevent 29
fatalities from falls to a lower level and 5,842 lost-workday injuries
from falls to a lower level annually in general industry.
B. Nature of the Risk
Every year many workers in general industry experience slips,
trips, falls and other injuries associated with walking-working surface
hazards. These walking-working surface hazards result in worker
fatalities and serious injuries, including lost-workday injuries.
Slips, trips, and falls, including falls on the same level, can result
in injuries such as fractures, contusions, lacerations, and sprains,
and may even be fatal. Falls to lower levels can increase the severity
of injuries as well as the likelihood of death. Falls on the same level
can also result in strains and sprains when employees try to ``catch''
themselves to prevent falling.
There are many walking-working surface hazards that can cause
slips, trips, and falls. These hazards include damaged or worn
components on personal fall protection systems and rope descent
systems; portable ladders used for purposes for which they were not
designed; fixed ladders that are not equipped with fall protection;
damaged stair treads; snow, ice, water, or grease on walking-working
surfaces such as floors; and dockboards that are not properly secured
or anchored.
Identifying walking-working surface hazards and deciding how best
to protect employees is the first step in reducing or eliminating the
hazards. To that end, the final rule requires that employers regularly
inspect walking-working surfaces. It also requires that employers
assess walking-working surfaces to determine if hazards are present, or
likely to be, that necessitate the use of personal fall protection
systems (Sec. Sec. 1910.132(d); 1910.28(b)(1)(v)). In addition,
employers must train employees on fall hazards and equipment plus the
proper use of personal fall protection systems (Sec. Sec. 1910.30,
1910.132(f)). After employers have assessed the workplace and
identified fall hazards, final Sec. 1910.28 requires employers to
provide fall protection to protect their employees from falls. Final
Sec. Sec. 1910.29 and 1910.140 specify the criteria fall protection
systems must meet, such as strength and performance requirements.
Section A of the FEA provides detailed information on the incidents the
final rule will prevent.
C. Fatality and Injury Data
Fatalities. The BLS Census of Fatal Occupational Injuries (CFOI)
has listed falls as one of the leading causes of workplace fatalities
for many years. From 1999 to 2010, falls were second only to highway
incidents in terms of fatal injuries. In 2011, slips, trips, and falls
were the third leading cause of fatal occupational injuries and in
2012, the fourth leading cause of these types of injuries. Many fatal
falls occur in general industry. From 2006-2012, approximately one-
third of all fatal falls in private industry were falls to a lower
level in general industry.
OSHA examined fall fatalities for 2006 to 2012 in industries
covered by the final standard using data from the BLS Census of Fatal
Occupational Injuries (CFOI). Table II-1, summarizing the data in Table
V-6 of the FEA, shows the total number of fatal falls to a lower level
from 2006 to 2012.
[GRAPHIC] [TIFF OMITTED] TR18NO16.097
As described in Table V-6 of the FEA, over the seven-year period,
the Professional, Scientific, and Technical Services industry and the
Administrative and Support Services industry (NAICS codes 541 and 561,
respectively) accounted for 27 percent of the fatal falls, while the
Manufacturing (NAICS 31-33) and Transportation (NAICS 48) sectors
accounted for 9.6 and 7.1 percent of the fatal falls, respectively.
Among all three-digit NAICS codes affected by the standard, BLS
reported the highest number of fatal falls in NAICS code 561,
[[Page 82499]]
Administrative and Support Services. Although not shown in the table, a
large majority of the fatalities for Administrative and Support
Services--86 percent for the seven-year period 2006-2012--occurred in
the industry concerned with services to buildings and dwellings (NAICS
5617). Based on these data, OSHA estimates that, on average, 261 deaths
per year resulted from falls to a lower level and would be directly
affected by the final standard.
Table V-7 of the FEA also includes data on fatal falls. That table
displays the number of fatal falls by type of fall and industry sector
for 2006-2010. These data indicate that during this period, there were,
on average, 255 fatal falls to a lower level in general industry
establishments when fatal falls are summed across all affected two-
digit NAICS industries. While the annual number of fatal falls
decreased and then rose since 2006, the average annual number of fatal
falls to a lower level from 2006-2010 (255 fatal falls to a lower
level) and 2011-2012 (274 fatal falls to a lower level) \2\ remains at
approximately the same level. In addition, falls remained one of the
leading causes of workplace fatalities throughout this time, as
discussed above.
---------------------------------------------------------------------------
\2\ Reference year 2011 is the first year in which the Injuries,
Illnesses, and Fatalities (IIF) program used the Occupational Injury
and Illness Classification System (OIICS), version 2.01, when
classifying Event or Exposure, Primary Source, Secondary Source,
Nature, and Part of Body. Due to substantial differences between
OIICS 2.01 and the original OIICS structure, which was used from
1992 to 2010, data for these case characteristics from 2011 forward
should not be compared to prior years.
---------------------------------------------------------------------------
Injuries. OSHA examined lost-workday injuries using data from BLS's
Survey of Occupational Injuries and Illnesses. Falls have been one of
the leading causes of lost-workday injuries for the last several years.
From 2006-2010, falls were consistently the third leading cause of
injuries and illnesses, behind overexertion and contact with objects
and equipment. From 2011-2012, slips, trips, and falls were the second
leading cause of injuries and illnesses, behind only overexertion.
In addition to being a major source of lost-workday injuries, falls
to a lower level were also some of the most severe. Falls to a lower
level had the second highest median days away from work, a key measure
of the severity of an injury or illness, every year from 2006-2012,
except 2010 (where it was the third highest). BLS data also demonstrate
that the majority of lost-workday falls to a lower level that occurred
in private industry occurred in general industry. More specifically,
for 2006-2012, approximately three-quarters of the lost-workday falls
to a lower level in private industry occurred in general industry.
Table V-8 of the FEA shows the average number of lost-workday
injuries due to falls in general industry, by type of fall, for 2006-
2012. Based on these data, OSHA estimates that, on average,
approximately 48,379 serious (lost-workday) injuries per year resulted
from falls to a lower level and would be directly affected by the final
standard.
Table II-2, based on BLS's Survey of Occupational Injuries and
Illnesses, provides additional information about the median number of
days away from work for lost-workday falls to a lower level from 2006-
2012. Table II-2 displays the median number of days away from work
attributed to falls to a lower level for each industry sector and
private industry as a whole. In 2012, for example, the number of median
days away from work for falls to a lower level in private industry as a
whole was 18, while the median days away from work for all lost-workday
injuries and illnesses in private industry as a whole was 8. Similarly,
in 2012, the median days away from work for falls to a lower level in
nearly every general industry sector was higher, and in many cases,
much higher, than the median days away from work for all lost-workday
injuries and illnesses in those sectors. This suggests that falls to a
lower level are among the most severe lost-workday injuries.
[GRAPHIC] [TIFF OMITTED] TR18NO16.098
[[Page 82500]]
Based on the number of fatalities and lost-workday injuries
reported by BLS for falls to a lower level, and evidence that non-fatal
injuries are among the most severe work-related injuries, OSHA finds
that workers exposed to fall hazards are at a significant risk of death
or serious injury.
Several stakeholders agreed that fall hazards present a significant
risk of injury and death (Exs. 63; 121; 158; 189; 363; OSHA-S029-2006-
0662-0177; OSHA-S029-2006-0662-0350). For example, Bill Kojola of the
American Federation of Labor and Congress of Industrial Organizations
(AFL-CIO) asserted:
Fall hazards remain one of the most serious problems faced by
millions of workers. We are convinced that the proposed changes,
when implemented as a result of promulgating a final rule, will
prevent fatalities and reduce injuries from fall hazards (Ex. 363).
Similarly, in his written comments, Robert Miller of Ameren
Corporation stated that the proposed rule is a positive approach
towards eliminating at-risk conditions and events (Ex. 189).
Charles Lankford, of Rios and Lankford Consulting International,
challenged OSHA's preliminary finding that falls present a significant
risk and that revising the general industry fall protection standards
is necessary to address the problem. Mr. Lankford used NIOSH and BLS
data to argue, respectively, that the final rule is not necessary
because the rate of fall fatalities decreased from 1980-1994 and ``held
steady'' from 1992 to 1997 (Ex. 368). OSHA is not persuaded by Mr.
Lankford's argument because, as discussed above, current BLS data from
2006-2012 show that an average of 261 fatal falls to a lower level
occurred annually and these falls continue to be a leading cause of
fatal occupational injuries in general industry. OSHA believes this
shows that a significant risk of death from falls to a lower level
still exists in general industry workplaces. With regard to Mr.
Lankford's claim that fall fatalities held ``steady'' from 1992-1997,
according to the BLS data, the number of fatal falls increased each
year during that period (with the exception of 1995), and reached a 6-
year high in 1997.
In addition, Mr. Lankford argued that:
[H]istorical incident rates for non-fatal falls also do not
display an increasing fall problem. The all-industries non-fatal
fall incidence rate has declined every year since 2003 (the oldest
year in the BLS Table I consulted), so the decline in rates is not
attributable to the current recession. If we exclude 2008 and 2009
data, manufacturing did not show a change. Yet 2006 and 2007 showed
lower injury incidence rates than 2003 and 2004 (Ex. 368).
A review of 2003-2009 BLS data on the incidence rates of nonfatal
occupational injuries and illnesses resulting from falls could not
reproduce Mr. Lankford's claims. As previously discussed, falls
continue to be one of the leading causes of lost-workday injuries.
Falls to a lower level are also some of the most severe lost-workday
injuries. In 2012, for example, the number of median days away from
work for falls to a lower level in private industry as a whole was 18,
while the median days away from work for all lost-workday injuries and
illnesses in private industry as a whole was 8.
Mr. Lankford also suggested that fatal falls are a greater problem
in the ``goods producing sector'' than the ``service sector.'' However,
this assertion is not supported by the BLS data. As described in Table
V-6 of the FEA, from 2006-2012, among all three-digit NAICS codes
affected by the standard, BLS reported the highest number of fatal
falls in a ``service sector'' (NAICS code 561, Administrative and
Support Services). Further, over the seven-year period, the
Professional, Scientific, and Technical Services industry and the
Administrative, and Support Services industry (NAICS codes 541 and 561,
respectively) accounted for 28 percent of the fatal falls.
Based on the evidence and analysis, OSHA disagrees with Mr.
Lankford's comment. As mentioned above, after examining recent BLS data
(2006-2012), OSHA finds that the available evidence points to a
significant risk. OSHA believes that the risk of injury, combined with
the risk of fatalities constitutes a significant safety threat that
needs to be addressed by rulemaking--specifically a revision to
subparts D and I. OSHA believes that the revisions to subparts D and I
are reasonable and necessary to protect affected employees from those
risks. Based on the BLS data, the Agency estimates that full compliance
with the revised walking-working surfaces standards will prevent 28
fatalities and 4,056 lost-workday injuries due to falls to a lower
level annually. OSHA finds that these benefits constitute a substantial
reduction of significant risk of harm from these falls.
Several commenters urged OSHA to expand its analysis to include
fatalities and injuries resulting from falls on the same level (Exs.
77; 329 (1/20/2011 pp. 42, 60-61); 329 (1/21/2011, pp. 200-203); 330).
However, the Agency finds that, with regard to its significant risk
analysis, the data for falls to a lower level constitute the vast
majority of the risk that the standard addresses, i.e., falls from
elevations. Analysis in the FEA (Section V) demonstrates that fatal
falls on the same level made up a small portion of all fatal falls.
Table V-7 of the FEA shows that, for the five-year period 2006 to 2010,
falls on the same level accounted for about 24 percent of total fall
fatalities. For non-fatal injuries, the Agency recognizes that falls on
the same level represent a significant portion of lost-workday fall-
injuries. Table V-8 of the FEA shows that, in general industry, falls
on the same level accounted for 68 percent of all falls resulting in
lost-workday injuries, while falls to a lower level accounted for only
24 percent.
However, as discussed in the FEA, the final rule has relatively few
new provisions addressing falls on the same level, such as slips and
trips from floor obstructions or wet or slippery working surfaces. The
requirements expected to yield the largest benefits from preventing
falls on the same level are found in final Sec. 1910.22 General
requirements. These final provisions will result in safety benefits to
workers by controlling worker exposure to fall hazards on walking-
working surfaces, especially on outdoor surfaces. Tables V-11 and V-13
of the FEA show that OSHA estimates only 1 percent of fatal falls on
the same level and 1 percent of lost-workday falls on the same level
will be prevented by these provisions.
Since falls to a lower level constitute the vast majority of the
risk the final rule addresses, OSHA's significant risk analysis
includes only falls to a lower level. Because of this, OSHA notes the
final risk analysis may understate the risk of falls in general
industry, since falls on the same level account for 68 percent of falls
resulting in a lost-workday injury.
The U.S. Chamber of Commerce questioned whether OSHA's estimate of
the benefits of the proposed standard justified the efforts undertaken
to issue the standard:
We note with some surprise that OSHA's analysis suggests this
new regulation will have a relatively minor impact on the total
number of fatalities attributed to falls from height. OSHA claims
that for the years 1992-2007 there were an average of 300 fatal
falls per year from height. OSHA calculates that this standard will
result in 20 fewer fatal falls per year. We do not mean to diminish
the significance of saving 20 lives, but OSHA seems to be projecting
less impact than a standard of this scope would suggest. Indeed,
OSHA even admits in the preamble that:
For the purposes of this analysis, OSHA did not attempt a
quantitative analysis of how many fatal falls could be prevented by
full and complete compliance with the existing standard. However a
qualitative examination
[[Page 82501]]
of the fatal falls to a lower level shows that a majority, and
perhaps a large majority, could be prevented by full compliance with
the existing regulations. (Emphasis added)
This raises questions about whether such a sweeping new standard as
this one, which will create confusion and new enforcement exposures,
is indeed warranted, or if OSHA would achieve the same or better
results by generating more complete compliance with current
requirements (Ex. 202).
First, far from creating confusion, this rulemaking assures that
OSHA rules will be in much closer accord with existing consensus
standards and practices and that OSHA's general industry fall
protection requirements will be better aligned with its construction
fall protection standard. There are many situations in which improved
enforcement of existing rules would be highly cost beneficial but is
not possible. On the other hand, OSHA can enforce new provisions to
this rule at minimal marginal costs per inspection since the bulk of
the costs of an inspection involves the time to reach the site, walk
through the site looking for violations of all OSHA rules, and conduct
the necessary closing and enforcement conferences.
III. Pertinent Legal Authority
The purpose of the OSH Act is to ``assure so far as possible every
working man and woman in the nation safe and healthful working
conditions and to preserve our human resources'' (29 U.S.C. 651(b)). To
achieve this goal, Congress authorized the Secretary of Labor to issue
and to enforce occupational safety and health standards (see 29 U.S.C.
655(a) (authorizing summary adoption of existing consensus and Federal
standards within two years of the OSH Act's effective date); 655(b)
(authorizing promulgation of standards pursuant to notice and comment);
and 654(a)(2) (requiring employers to comply with OSHA standards)).
A safety or health standard is a standard ``which requires
conditions, or the adoption or use of one or more practices, means,
methods, operations, or processes, reasonably necessary or appropriate
to provide safe or healthful employment or places of employment'' (29
U.S.C. 652(8)).
A standard is reasonably necessary or appropriate within the
meaning of section 3(8) of the OSH Act if it materially reduces a
significant risk to workers; is economically feasible; is
technologically feasible; is cost effective; is consistent with prior
Agency action or is a justified departure; adequately responds to any
contrary evidence and argument in the rulemaking record; and
effectuates the Act's purposes at least as well as any national
consensus standard it supersedes (see 29 U.S.C. 652; 58 FR 16612, 16616
(3/30/1993)).
A standard is technologically feasible if the protective measures
it requires already exist, can be brought into existence with available
technology, or can be created with technology that can reasonably be
expected to be developed (Pub. Citizen Health Research Group v. U.S.
Dep't of Labor, 557 F.3d 165, 170-71 (3d Cir. 2009); Am. Iron and Steel
Inst. v. OSHA (Lead II), 939 F.2d 975, 980 (D.C. Cir. 1991); United
Steelworkers of Am., AFL-CIO-CLC v. Marshall, 647 F.2d 1189, 1272 (D.C.
Cir. 1980)).
A standard is economically feasible if industry can absorb or pass
on the cost of compliance without threatening its long-term
profitability or competitive structure (Am. Textile Mfrs. Inst. v.
Donovan (Cotton Dust), 452 U.S. 490, 530 n.55 (1981); Lead II, 939 F.2d
at 980). A standard is cost effective if the protective measures it
requires are the least costly of the available alternatives that
achieve the same level of protection (Int'l Union, United Auto.,
Aerospace & Agric. Implement Workers of Am., UAW v. OSHA (Lockout/
Tagout II), 37 F.3d 665, 668 (D.C. Cir 1994). See also Cotton Dust, 452
U.S. at 514 n.32 (suggesting that the ``reasonably necessary or
appropriate'' language of Section 3(8) of the Act (29 U.S.C. 652(8))
might require OSHA to select the less expensive of two equally
effective measures)).
Section 6(b)(7) of the OSH Act authorizes OSHA to include among a
standard's requirements labeling, monitoring, medical testing, and
other information-gathering and transmittal provisions (29 U.S.C.
655(b)(7)).
All safety standards must be highly protective (see 58 FR at 16614-
16615; Lockout/Tagout II, 37 F.3d at 668). Finally, whenever
practicable, standards shall ``be expressed in terms of objective
criteria and of the performance desired'' (29 U.S.C. 655(b)(5)).
IV. Summary and Explanation of the Final Rule
The final rule revises and updates the requirements in the general
industry Walking-Working Surfaces standards (29 CFR part 1910, subpart
D), including requirements for ladders, stairs, dockboards, and fall
and falling object protection; and it adds new requirements on the
design, performance, and use of personal fall protection systems (29
CFR part 1910, subpart I). The final rule also makes conforming changes
to other standards in part 1910 that reference requirements in subparts
D and I.
A. Final Subpart D
This part of the preamble discusses the individual requirements in
the specific sections of final subpart D; explains the need for and
purposes of the requirements; and identifies the data, evidence, and
reasons supporting them. This preamble section also discusses issues
raised in the proposed rule and by stakeholders, significant comments
and testimony submitted to the rulemaking record, and substantive
changes from the proposed rule.
In accordance with section 6(b)(8) of the OSH Act, OSHA drew many
of the revisions, new provisions, and technological advancements in the
proposed and final rules from various national consensus standards. In
the discussion of the specific sections of final subpart D, OSHA
identifies the national consensus standards that section references. In
the summary and explanation of the proposed rule, OSHA's references to
national consensus standards are to the editions that were current at
that time. In the time since OSHA published the proposed rule, many of
the referenced consensus standards have been revised and updated. In
the final preamble, OSHA references the most recent editions of those
national consensus standards, where appropriate, after examining and
verifying that they are as protective as earlier editions.
OSHA has taken a number of steps in the final rule, like the
proposal, to provide greater compliance flexibility for employers and
make the final rule easier to understand and follow, which stakeholders
supported (e.g., Exs. 155; 164; 165; 172; 191; 196; 202). For example,
consistent with section 6(b)(5) of the Occupational Safety and Health
Act of 1970 (29 U.S.C. 655(b)(5)), the final rule uses performance-
based language in place of specification requirements, which gives
employers flexibility to select the controls that they determine to be
most effective for the particular workplace situation and operation.
Like the proposed rule, OSHA increases ``harmonization'' between the
final rule and OSHA construction standards (29 CFR part 1926, subparts
L, M, and X), which makes compliance easier for employers who perform
both general industry and construction operations (e.g., Exs. 164; 165;
172; 191; 202; 226).
Finally, clarifying provisions and terms, using plain language, and
consolidating and reorganizing the requirements also make the final
rule easier to understand, thereby, enhancing
[[Page 82502]]
compliance. The following table lists the sections in final subpart D
and the corresponding sections in the existing subpart:
[GRAPHIC] [TIFF OMITTED] TR18NO16.099
Section 1910.21--Scope and Definitions
Final Sec. 1910.21 establishes the scope of and defines the terms
used in 29 CFR part 1910, subpart D--Walking-Working Surfaces.
Final Paragraph (a)--Scope
Final paragraph (a), like the proposed rule, specifies that the
subpart applies to all general industry workplaces. It covers all
walking-working surfaces unless specifically excluded by an individual
section of this subpart. The final rule consolidates the scope
requirements for subpart D into one provision and specifies that the
final rule applies to all walking-working surfaces in general industry
workplaces. The final rule defines ``walking-working surfaces'' as any
surface on or through which an employee walks, works, or gains access
to a work area or workplace location (Sec. 1910.21(b)). Walking-
working surfaces include, but are not limited to, floors, ladders,
stairways, steps, roofs, ramps, runways, aisles, scaffolds, dockboards,
and step bolts. Walking-working surfaces include horizontal, vertical,
and inclined or angled surfaces.
Final paragraph (a) also specifies that subpart D does not apply to
general industry walking-working surfaces, including operations and
activities occurring on those surfaces, that an individual section or
provision specifically excludes. Final subpart D addresses each of
these specific exclusions in the relevant individual section or
provision. OSHA notes that each exclusion only applies to the specific
section or provision in which it appears and not to any other final
subpart D section or provision. Existing subpart D does not have a
single scope provision that applies to the entire subpart. Rather, it
includes separate scope requirements in various sections in the subpart
(e.g., Sec. 1910.22--General requirements; Sec. 1910.24(a)--Fixed
industrial stairs; Sec. 1910.25(a)--Portable wood ladders; Sec.
1910.27(e)(3)--Fixed ladders; Sec. 1910.29(a)(1)--Manually
[[Page 82503]]
propelled mobile ladder stands and scaffolds (towers)).
OSHA believes the consolidated scope provision in final paragraph
(a) is clearer and easier to understand than the existing rule. Final
paragraph (a) allows employers to determine more easily whether the
final rule applies to their particular operations and activities. In
addition, the final rule is consistent with OSHA's interpretation and
enforcement of subpart D since the Agency adopted the walking-working
surfaces standards in 1971. It also is consistent with other OSHA
standards, including Agency construction standards (e.g., 29 CFR
1926.450(a); 1926.500(a); 1926.1050(a)).
A number of stakeholders commented on the proposed scope provision
(e.g., Exs. 73; 96; 109; 187; 189; 190; 198; 201; 202; 251; 254; 323;
340; 370). Some stakeholders urged OSHA to expand the scope to include
agricultural operations (Exs. 201; 323; 325; 329 (1/18/2011, pgs. 206-
08); 329 (1/19/2011, p. 101); 340; 370). Most commenters, however,
recommended that OSHA limit the scope or exclude certain workers, work
operations, or walking-working surfaces or hazards, such as inspection,
investigation, and assessment activities; public safety employees;
rolling stock and motor vehicles; and combustible dust (e.g., Exs. 73;
96; 98; 150; 156; 158; 157; 161; 167; 173; 187; 189; 190; 202). (See
separate discussions of agricultural operations and rolling stock and
motor vehicles below. See final Sec. 1910.22(a) for discussion of
combustible dust.)
Verallia commented that the proposed scope, combined with the
proposed definition of ``walking-working surfaces'' (Sec. 1910.21(b)),
``greatly expands the obligation of employers'' and makes some
requirements, such as regular inspections, ``unduly burdensome'' (Ex.
171). Verallia recommended that OSHA limit the scope of the final rule
by revising the walking-working surfaces definition (see discussion of
the definition of walking-working surfaces in final Sec. 1910.21(b)).
OSHA disagrees with Verallia's contention. The existing rule covers all
of the examples of walking-working surfaces listed in the proposed
definition of walking-working surfaces (proposed Sec. 1910.21(b)).
Several stakeholders urged that OSHA exclude inspection,
investigation, and assessment operations performed before the start of
work and after work is completed (e.g., Exs. 109; 156; 157; 177; 254).
While some of these commenters recommended excluding those operations
from fall protection requirements, others said OSHA should add to final
Sec. 1910.21(a) the following language from OSHA's construction
standard (29 CFR 1926.500(a)(1)):
Exception: The provisions of this subpart do not apply when
employees are making an inspection, investigation, or assessment of
workplace conditions prior to the actual start of construction work
or after all construction work has been completed.
Such language would have the effect of excluding these operations
from the entirety of subpart D, which OSHA opposes. Although OSHA
excludes these operations from the fall protection requirements in
final Sec. 1910.28 (see discussion in final Sec. 1910.28(a)(2)),
employers performing them must comply with the other requirements in
this subpart. For example, those employers must ensure that ladders and
stairways their workers use to get to the workplace location are safe;
that is, are in compliance with the requirements in final Sec. 1910.23
and final Sec. 1910.25, respectively. Employers also must ensure that
the workers performing those operations can safely perform those
operations by ensuring they receive the training that final Sec.
1910.30 requires.
Some stakeholders recommended that OSHA exclude public safety
employees from the final rule (Exs. 167; 337; 368). The Public Risk
Management Association (PRIMA) offered three reasons for excluding
public safety employees from the final rule. First, they said employers
do not control the walking-working surfaces where employees perform
public safety and emergency response operations (Ex. 167). Second, they
said it is ``unreasonable'' to require public safety employees (e.g.,
SWAT teams) to install and use fall protection systems, since there is
only a short time in which emergency response and rescue operations
they perform will be effective. Finally, PRIMA said requiring that
State Plan States adopt the final rule or an equivalent could result in
different rules that could adversely impact interstate
multidisciplinary teams and agreements.
OSHA does not believe excluding public safety employees from the
entire final rule is appropriate or necessary. Many general industry
employers that the final rule covers perform operations on walking-
working surfaces that they do not own, thus, in this respect, public
safety employers and operations are not unique. Regardless of whether
general industry employers own the walking-working surfaces where their
workers walk and work, they still must ensure the surfaces are safe for
them to use. For example, general industry employers, including public
safety employers, must ensure that the walking-working surfaces are
able to support their employees as well as the equipment they use. If
walking-working surfaces cannot support the maximum intended load,
employees and, in the case of public safety employers, the people they
are trying to assist or rescue, may be injured or killed.
OSHA does not believe stakeholders provided convincing evidence
showing this and other requirements (e.g., training) provisions in
final subpart D are not feasible for public safety employers. However,
if an employer, including public safety employers, can demonstrate that
it is infeasible or creates a greater hazard to comply with the final
rule in a particular situation, they may use other reasonable
alternative means to protect their employees. (OSHA notes that final
Sec. 1910.23 does not apply to ladders that employers use in emergency
operations such as firefighting, rescue, and tactical law enforcement
operations (see discussion in final Sec. 1910.23(a)(1))).
Agricultural operations. The final rule, like the proposal, covers
walking-working surfaces in general industry workplaces. In the
preamble to the proposed rule OSHA clearly specifies that the proposal
does not apply to agricultural operations; 29 CFR part 1928 covers
those operations (75 FR 28920 (5/24/2010)).
Although neither the proposed rule nor OSHA standards define
``agricultural operations,'' the Agency has said they generally include
``any activities involved in the growing and harvesting of crops,
plants, vines, fruit trees, nut trees, ornamental plants, egg
production, the raising of livestock (including poultry and fish) and
livestock products'' (e.g., feed for livestock on the farm) (Field
Operations Manual (FOM), Chapter 10, Section B(1)). Agricultural
operations include preparation of the ground, sowing, watering and
feeding of plants, weeding, spraying, harvesting, raising of livestock,
and ``all activity necessary for these operations'' (Memorandum from
Patricia Clark, Directorate of Compliance Programs (7/22/1992)).
OSHA's Appropriations Act uses the term ``farming operations,''
which is similarly defined as ``any operation involved in the growing
or harvesting of crops, the raising of livestock or poultry, or related
activities conducted by a farmer on sites such as farms, ranches,
orchards, dairy farms or similar farming operations'' (CPL 02-00-51; 42
FR 5356 (1/28/1977); Memorandum for Regional
[[Page 82504]]
Administrators (7/29/2014)).\3\ Farming operations on small farms also
include ``preparing the ground, sowing seeds, watering, weeding,
spraying, harvesting, and all related activities necessary for these
operations, such as storing, fumigating, and drying crops grown on the
farm'' (Memorandum for Regional Administrators (7/29/2014)).
---------------------------------------------------------------------------
\3\ Since 1976, a Congressional appropriations rider has
precluded OSHA from expending funds to conduct enforcement
activities with respect to any person engaged in farming operations
with 10 or fewer non-family employees that has not maintained a
temporary labor camp within the preceding 12 months (Consolidated
Appropriations Act, 2014, Pub. L. No. 113-76 (2014)).
---------------------------------------------------------------------------
The Occupational Safety and Health Review Commission (OSHRC) has
ruled that activities integrally related to these core agricultural
operations also are agricultural operations (Darragh Company, 9 BNA
OSHC 1205, 1208 (1980) (delivery of chicken feed to farmers that raise
chickens is integrally related to agricultural operations)).
Determining whether an activity is a core agricultural operation must
be made on a case-by-case basis and be based on the nature and
character of the specific activity rather the employer's agricultural
operation as a whole (J.C. Watson Company, 22 BNA OSHC 1235, 1238,
aff'd. 321 Fed. Appx. 9 (April 17, 2009)).
Under the Darragh test, post-harvesting activities are not integral
to core agricultural operations, therefore, they are not covered by
part 1928 (J.C. Watson Company, 22 BNA OSHC 1235 (2008)). Post-harvest
activities such as receiving, cleaning, sorting, sizing, weighing,
inspecting, stacking, packaging and shipping produce are not
``agricultural operations'' (J.C. Watson Company, 22 BNA OSHC at 1238
(employer's packaging of onions (1) grown on land employer owned,
leased, or worked; (2) purchased on the ``spot market''; or (3) brought
to the shed by other growers; in a shed on the employer's farm was
``not integral to the growing of onions, the true agricultural
operation here'')). Post-harvesting activities not on a farm include
the processing of agriculture products, which ``can be thought of as
changing the character of the product (canning, making cider or sauces,
etc.) or a higher degree of packaging versus field sorting in a shed
for size'' (FOM, Chapter 10, Section B(4)).
In addition, activities performed on a farm that ``are not related
to farming operations and are not necessary to gain economic value from
products produced on the farm'' are general industry activities
(Memorandum for Regional Administrators (July 29, 2014) (these
activities on a small farm ``are not exempt from OSHA enforcement''
under the appropriations rider)). To illustrate, the memorandum
specifies the following activities performed on a farm are general
industry activities (``food manufacturing operations'') not farming
operations exempt under the appropriations rider:
Grain handling operation that stores and sells grain grown
on other farms;
Food processing facility that makes cider from apples
grown on the farm or processes large carrots into ``baby carrots;'' and
Grain milling facility and use of milled flour to make
baked goods.
As mentioned, a number of stakeholders urged that OSHA include
agricultural operations in the final rule for several reasons (Exs.
201; 323; 325; 340; 370). First, the stakeholders said fall hazards are
present throughout agricultural operations. For instance, Farmworker
Justice stated:
Fall hazards exist in all types of farm operations in both crop
and animal production, including work in vegetable fields, packing
sheds, fruit orchards, tree nurseries, greenhouses, mushroom houses,
dairies, poultry farms, cattle feedlots, and other livestock
operations (Ex. 325).
They also said that workers are exposed to fall hazards while
working on various types of walking-working surfaces, including
ladders, farm machinery, and elevated farm structures (Ex. 325).
Second, stakeholders said fall hazards are a leading cause of
worker fatalities and injuries in agricultural operations. Farmworker
Justice said the annual number of fatal falls in agricultural
operations accounted for almost 10 percent of all annual occupational
fatal falls (Ex. 370). They said a NIOSH analysis of 2005 Bureau of
Labor Statistics (BLS) data indicated that fall-related farmworker
deaths occurred at a rate of 1.4 per 100,000, ``a rate exceeded in only
two other industries: Construction . . . and mining'' (Ex. 325,
referring to 2005 Census of Fatal Occupational Injury data). According
to Farmworkers Justice, BLS data from 2004-2009 indicated that 157
agricultural workers died due to falls, which they said was an average
of over 28 fall deaths per year (Exs. 329 (1/18/2011, pp. 228); 370).
California Rural Legal Assistance Foundation (CRLAF) said BLS fatality
data from 1992-1997 indicated 166 agricultural workers died as a result
of falls from elevations (Ex. 201).
Farmworker Justice and CRLAF also submitted evidence on the
prevalence of fall injuries in agricultural operations. CRLAF said an
analysis of 1991 Florida worker compensation records in agricultural
operations revealed that falls accounted for nearly 25 percent of all
serious, disabling work injuries (Ex. 201). Farmworker Justice
reported:
BLS data indicates that workers in both crop and animal
production had among the highest rates of non-fatal fall-related
injuries requiring days away from work of all U.S. workers in 2009
(Ex. 370).
Farmworker Justice stated that fall injuries were particularly
frequent among workers harvesting tree fruit and nut crops:
According to 2009 BLS fall injury data . . . orchard workers
suffered ladder-related fall injuries at the rate of 33.6 per 10,000
workers, which would be among the top 20 industry fall rates
examined by OSHA (Ex. 370; see also Ex. 325).
CRLAF reported similar data showing ``nearly one-third (31%) of the
13,068 Workers' Compensation Claims in Washington State orchards
between 1996 and 2001 involving compensation for lost work time were
for ladder related injuries.''
Third, stakeholders said the fall protection standards that
California, Oregon, and Washington have adopted to protect agricultural
workers show that it is feasible to apply the final rule to agriculture
operations (Exs. 325; 329 (1/18/2011, pgs. 207-210); 340; 370).
Farmworker Justice said that government officials, agricultural orchard
employers, and agricultural safety training experts in these states
indicated that compliance with those standards have ``significantly
reduced injuries among agricultural workers'' (Ex. 370). It also
reported that a Washington study of fall injuries among orchard workers
over a five-year period (1996-2001) following implementation of the
state's fall protection standard found ``statistically significant
annual reductions in injuries'' (Ex. 370, discussing Hofmann J, Snyder
K, Keifer M. ``A descriptive study of workers claims in Washington
State orchards,'' 56 Occupational Medicine 251-257 (2006)).
OSHA agrees with the stakeholders that walking-working surface
hazards, particularly fall hazards, exist in agricultural operations.
That said, OSHA has not included agricultural operation in the final
rule. The Agency has not gathered and analyzed the type of information
on agricultural operations necessary to support a rule. OSHA has not
gathered and analyzed information on the number of agricultural workers
and establishments the final rule would affect. In addition, OSHA has
not determined what percentage of agricultural
[[Page 82505]]
establishments are farming operations with 10 or fewer non-family
employees that have not maintained a temporary labor camp within the
preceding 12 months and therefore exempt from enforcement of the final
rule.
OSHA has not gathered and analyzed data and information on the jobs
in agricultural operations where walking-working surface hazards are
present and worker injuries and fatalities are occurring; the current
employer practices to address these hazards; and the availability and
cost of controls, such as fall protection systems, to protect workers
from those hazards. In addition, OSHA has not conducted the economic
and regulatory flexibility analyses necessary to make a feasibility
determination. And, because the proposal clearly did not extend to
agricultural operations, the public has not had a chance to comment on
those issues. These and other steps are necessary before OSHA can issue
a final rule that applies to agricultural operations. As such, the
final rule applies to general industry and not agricultural operations.
However, if an operation performed on a farm is not an ``agricultural
operation'' or integrally related to an agricultural operation, such as
a food manufacturing or other post-harvesting operations, then the
final general industry rule applies.
Rolling stock and motor vehicles. In this rulemaking OSHA has
raised issues and requested comment about whether the final rule should
include specific requirements to protect workers from falling off
rolling stock and motor vehicles.\4\ The 2010 proposal does not include
specific requirements for rolling stock and motor vehicles (75 FR
28862). Instead, in the preamble, OSHA said it would continue gathering
information and evidence to determine whether there is a need to
propose specific requirements for rolling stock and motor vehicles (75
FR 28867). OSHA also said it needs ``more information about what
employers are presently doing and any feasibility and cost concerns
associated with a requirement to provide protection'' for rolling stock
and motor vehicles. OSHA said it will wait until the record is more
fully developed to make a determination about requiring fall protection
on rolling stock and motor vehicles. OSHA also stated that if it
receives sufficient comments and evidence to warrant additional
rulemaking on rolling stock and motor vehicles, the Agency will issue
``a separate proposed rule'' (75 FR 28867) (emphasis in original). The
comments the Agency received on the need for specific requirements for
rolling stock and motor vehicles are summarized below.
---------------------------------------------------------------------------
\4\ OSHA defines ``rolling stock'' as any locomotive, railcar,
or vehicle operated exclusively on a rail or rails, or a trolley bus
operated by electric power supplied from an overhead wire. ``Motor
vehicle'' means any commercial bus, van, or truck, including tractor
trailer, flatbed, tanker, and hopper trucks.
---------------------------------------------------------------------------
Many stakeholders support adding specific fall protection
requirements for rolling stock and motor vehicles to the final rule
(e.g., Exs. 127; 130; 155; 185; 198; 257; 307; OSHA-S029-2006-0662-
0195; OSHA-S029-2006-0662-0196; OSHA-S029-2006-0662-0207; OSHA-S029-
2006-0662-0227; OSHA-S029-2006-0662-0234; OSHA-S029-2006-0662-0247;
OSHA-S029-2006-0662-0310; OSHA-S029-2006-0662-0329), while many urge
OSHA to exclude rolling stock and motor vehicles from coverage or to
limit fall protection requirements to specific situations, such as when
vehicles are inside or contiguous to a building (e.g., Exs. 63, 121;
158; 161; 162; 181; 182; 183; 220; 238; 335; OSHA-S029-2006-0662-0202;
OSHA-S029-2006-0662-0219; OSHA-S029-2006-0662-0226; OSHA-S029-2006-
0662-0229; OSHA-S029-2006-0662-0244; OSHA-S029-2006-0662-0252; OSHA-
S029-2006-0662-0302; OSHA-S029-2006-0662-0306; OSHA-S029-2006-0662-
0314; OSHA-S029-2006-0662-0320; OSHA-S029-2006-0662-0324).
Stakeholders who support adding specific fall protection
requirements said workers are exposed to fall hazards working on
rolling stock and motor vehicles; falls from rolling stock and motor
vehicles have resulted in death and serious injury; and feasible,
effective fall protection systems exist and are in use to protect
employees working on rolling stock and motor vehicles. These
stakeholders include safety professional organizations (e.g., American
Society of Safety Engineers (ASSE)); fall protection system
manufacturers, suppliers, and installers; safety engineers and
consultants; and labor organizations.
Stakeholders who oppose adding specific requirements said requiring
fall protection for rolling stock and motor vehicles is not necessary,
creates a greater hazard, and is infeasible. Some said OSHA did not
have authority to regulate rolling stock and motor vehicles, and, in
any event, should leave such regulation to the Federal Railroad
Administration (FRA) and Federal Motor Carrier Safety Administration
(FMCSA), respectively. Some stakeholders urged OSHA that the final rule
limit fall protection requirements to vehicles located inside or
contiguous to a building or structure. These stakeholders include
employers, small businesses, and industry associations (Exs. 182; 220;
OSHA-S029-2006-0662-0226; OSHA-S029-2006-0662-0229; OSHA-S029-2006-
0662-0231; OSHA-S029-2006-0662-0237; OSHA-S029-2006-0662-0252; OSHA-
S029-2006-0662-0306; OSHA-S029-2006-0662-0340).
Need for fall protection. Several stakeholders asserted that fall
protection on rolling stock and motor vehicles is not necessary for a
variety of reasons. First, stakeholders said no or very few workers
climb on rolling stock and motor vehicles (Exs. 124; 183; 187; 220;
238). For example, Minnesota Grain and Feed Association (MGFA) said
members load/unload rolling stock and motor vehicles using electronic
controls operated from ground-level instead (Ex. 220). Likewise, the
Small Business Administration Office of Advocacy (SBA Advocacy) and
American Trucking Associations (ATA) said employees load/unload truck
trailers through the rear door directly to docks, ramps, and other
devices (Exs. 124; 187; 190; 220). Stakeholders who said workers climb
on rolling stock and motor vehicles stressed the number of workers
doing so is very low. Conoco Phillips Company said, ``[T]he number of
employees required to work atop rolling stock is minimal (<1%)'' (Ex.
OSHA-S029-2006-0662-0320; see also Exs. 148 (NGFA--``At best, a small
percentage of the employees . . . are exposed); 181 (American Truck
Dealers/National Automobile Dealers Association (ATD/NADA)--less than
10 percent of employees)).
Other stakeholders, however, including some who oppose requiring
fall protection, said a significant number/percentage of employees must
climb on or access the tops of rolling stock and motor vehicles to
perform a wide range of tasks, including loading/unloading, tarping,
maintenance and repair, inspections, sampling, snow and ice removal,
and other tasks (e.g., Exs. 63; 121; 158; OSHA-S029-2006-0662-0350).
For instance, Clear Channel Outdoors (CCO) said that nearly 80 percent
of their field employees climb on motor vehicles (Ex. 121). Ferro
Corporation estimated that almost one-half of employees at a typical
plant climb onto the top of rolling stock and bulk trucks to perform
tasks (Ex. OSHA-S029-2006-0662-0177).
Second, a number of stakeholders stated that fall protection is not
necessary on rolling stock and motor vehicles because worker exposure
to fall hazards is limited. Several stakeholders said exposure is
``infrequent,'' ``brief and sporadic'' (Exs. 124; 181; 183; 187;
[[Page 82506]]
OSHA-S029-2006-0662-0124; OSHA-S029-2006-0662-0183; OSHA-S029-2006-
0662-0237). Other stakeholders maintain exposure to fall hazards on
rolling stock and motor vehicles is more frequent and widespread. For
example, Dynamic Scientific Controls (DSC) said fall hazards are
present ``daily in almost every plant that receives and ships''
products (Ex. OSHA-S029-2006-0662-0227; see also Exs. 307; 329 (1/20/
2011, p. 142)).
Third, some stakeholders assert fall protection is not necessary on
rolling stock and motor vehicles because the heights employees climb do
not pose fall hazards. For instance, ATA said the height of most
commercial vehicle trailers is no more than 49 to 50 inches (e.g.,
``step-downs'' and ``low boys''), which only nominally exceeds the 4-
foot trigger (Ex. 187). Other stakeholders, however, reported that
workers must climb significantly higher than 50 inches on motor
vehicles, particularly tanker and hopper trucks, to perform tasks, some
of which are the tasks they perform most frequently (e.g., Exs. 130;
198; 307; OSHA-S029-2006-0662-0208). Even where workers only climb 49
to 50 inches onto a trailer or flatbed truck, some stakeholders said
there is a risk of serious injury from falls (Exs. 63; 302; 329 (1/20/
2011, pgs. 156-60)).
Fourth, a number of stakeholders said fall protection is not
necessary because no or few injuries from falls off rolling stock and
motor vehicles have occurred in their establishments or industry (Exs.
63; 121; 148; 162; 181; 237; OSHA-S029-2006-0662-0219; OSHA-S029-2006-
0662-0237; OSHA-S029-2006-0662-0252; OSHA-S029-2006-0662-0320). Douglas
Greenhaus, with ATD/NADA, said:
I've spent over twenty-five years working with truck dealerships
on matters involving employee health and safety. In that time, I
have only rarely heard of injuries arising from falls from
commercial trucks, tractors, or trailers (Ex. 181. See also, OSHA-
S029-2006-0662-0237).
The Cargo Tank Risk Management Committee (CTRMC) stated:
While falls from the top of tank trailers can result in serious
injury, the actual frequency of such injuries is very rare. A
typical large cargo tank motor vehicle fleet makes over 300 delivers
per day and has averaged less than 2 falls from its tank trailers
per year (Ex. 63).
Stakeholders pointed out that industry surveys also show falls from
rolling stock and motor vehicles were low. McNeilus Trucking reported
that a 2002 Illinois Ready Mix Concrete Association survey found only
two falls from ready-mix concrete trucks occurred in over 66 million
climbs (Ex. OSHA-S029-2006-0662-0219). According to an International
Liquid Terminals Association's (ILTA) 2010 annual survey, six of the
221 (2.7%) injuries were falls from rolling stock and motor vehicles,
which ``represent a very small proportion of the total number of
recordable incidents'' (Ex. 335). A NGFA survey of 901 facilities
showed that during a two-year period (2007-09), during which the
facilities handled 1.5 million railcars and 1.4 million motor vehicles,
no fatalities and only 12 injuries occurred (Ex. 148).
By contrast, a number of stakeholders said falls from rolling stock
and motor vehicles are a serious problem that have resulted in worker
deaths and serious injuries (e.g., Exs. 130; 155; 257; 302; 307; 329
(1/20/2011, pgs. 142, 150,151-152, 156-57); 335; 355-11; OSHA-S029-
2006-0662-0207). In the rail transportation industry, Fall Protection
Systems Corp. (FPS) reported that they documented, based on site visits
and speaking to customers, more than 50 falls in a 10-year period, 14
of which resulted in death and 30 in serious injuries.
Stakeholders reported a similar experience in the truck
transportation industry. For example, Rick Hunter, of the Alabama
Trucking Association Workers Compensation Fund, said:
Each year drivers and shop [technicians] are injured from falls
from tankers and flatbed trailers. I know of 4 deaths from this type
fall in Alabama'' (Ex. 257).
Cameron Baker, with Standfast USA, testified that one truck company
with more than 900 drivers, reported an average of 31 falls per year
during a nine-year period (1998-2006) (Exs. 329 (1/20/2011, pgs. 151-
52); 355-11). He estimated that the total cost to the company for those
fall injures was $3.33 million (Ex. 355-11). Standfast also submitted
information indicating that rolling stock and motor vehicle fall
injuries are increasing (Ex. 355-11).
Fifth and finally, a number of stakeholders said employers already
are using effective measures to protect workers on rolling stock and
motor vehicles and requiring additional measures in the final rule will
not increase worker safety (e.g., Exs. 63; 121; 124; 142; 147; 148;
158; 162; 169; 181; 190; 335). The measures these stakeholders are
using include:
Conventional fall protection system such as cable line and
retractable lifeline systems; work platforms with railings/guardrails;
walkways with railings; and portable access systems with railings or
safety cages; ladders with railings (Exs. 63; 124; 148; 158; 162; 169;
181; 335);
Anti-slip surfaces on motor vehicle walkways (Ex. 158);
Initial, periodic, and remedial training, which is the
only measure some stakeholders use (e.g., Exs. 63; 121; 124; 142; 148;
158; 162; 169; 181; 190);
Work practices such as site-specific loading/unloading
protocols and safe climbing techniques (e.g., 3-point climbing); and
loading/unloading trailers from the ground (e.g., bottom-loading
tankers, ground-level controls) (Ex. 148; 158; 181; 192; 326; 335;
OSHA-S029-2006-0662-0314); and
Administrative controls, including ``blue-flagging'' rail
cars on isolated tracks to prevent moving while employees are on them,
prohibiting workers from being on moving rolling stock, and keeping
employees off railcars in unsafe weather conditions (e.g., ice, sleet,
high winds) (e.g., Ex. 148).
However, as mentioned, other stakeholders believe requiring fall
protection on rolling stock and motor vehicles is necessary because
many employers have not implemented readily available controls even
though their workers are exposed to fall hazards on rolling stock and
motor vehicles and fall injuries and fatalities are occurring in the
railroad and truck transportation industries (e.g., Exs. 127; 130; 155;
185; 198; 257; 307; OSHA-S029-2006-0662-0195; OSHA-S029-2006-0662-0196;
OSHA-S029-2006-0662-0207; OSHA-S029-2006-0662-0227; OSHA-S029-2006-
0662-0234; OSHA-S029-2006-0662-0247; OSHA-S029-2006-0662-0310; OSHA-
S029-2006-0662-0329). FPS, for instance, pointed out that the lost-
workday injury rates due to falls from elevations in the rail
transportation and truck transportation industries are 25.9 and 29.1
lost workdays per 10,000 employees, respectively (Ex. 130).
Greater hazard. Several stakeholders oppose requiring fall
protection on rolling stock and motor vehicles because they say it
would expose workers to a ``greater hazard'' than working without any
protection (Exs. 121; 124; 181; OSHA-S029-2006-0662-0219; OSHA-S029-
2006-0662-0232; OSHA-S029-2006-0662-0244). To establish that an OSHA
standard creates a greater hazard, an employer must prove, among other
things, that the hazards of complying with the standard are greater
than those of not complying, and alternative means of employee
protection are not available (Bancker Construction Corp., v. Reich, 31
F.2d 32, 34 (2d Cir. 1994); Dole v. Williams Enterprises, Inc., 876
F.2d 186, 188 (D.C. Cir. 1989)). The Occupational
[[Page 82507]]
Safety and Health Review Commission has held that the employer must
establish that complying with a standard would be more dangerous than
allowing employees to work without compliance (Secretary of Labor v.
Spancrete Northeast, Inc., 16 BNA OSHC 1616, aff. 40 F.3d 1237 (2d Cir.
1994)).
Stakeholders said that requiring personal fall protection systems
on rolling stock and motor vehicles could create a greater risk by
causing ``entanglement with moving parts'' (Ex. 124) and creating trip
hazards (Exs. 181; OSHA-S029-2006-0662-0244). They also said requiring
workers ``to continually tie and untie from a variety of anchorage
points when the employee accesses and moves around'' rolling stock or
motor vehicles also could create a greater hazard (Ex. 121; OSHA-S029-
2006-0662-0244). Keller and Heckman explained:
[T]he worker would first have to climb or otherwise travel to
the anchorage location to attach and then detach from the anchorage,
which might very well pose a greater hazard than simply working
carefully without fall protection (Ex. OSHA-S029-2006-0662-0244).
However, these stakeholders did not identify instances in which workers
were injured while using personal fall protection systems on rolling
stock and motor vehicles.
Also, these stakeholders did not show that there are no alternative
fall protection measures or systems available to protect workers. In
fact, these and other stakeholders identified various types of fall
protection systems that they and other employers are using successfully
to protect employees working on rolling stock and motor vehicles (e.g.,
Exs. 63; 124; 130; 148; 158; 162; 181; 185; 198; 307; 335; OSHA-S029-
2006-0662-0207; OSHA-S029-2006-0662-0208). In point, although ATD/NADA
asserted that requiring fall protection on rolling stock and motor
vehicles would create a greater hazard, they also said:
Dealerships often use railing-equipped metal stairs with
lockable casters or other ladder systems to reach the sides and tops
of trucks, tractors, or trailers, thereby reducing the need to climb
on the vehicles themselves. When and where used, mobile work
platforms and scaffolds have adjustable `maximum' heights and are
equipped with side rails and toe boards to prevent falling or
tripping from the top section. . . . Paint booths often have mobile
or stationary stair platforms equipped with railings and safety
chains (Ex. 181).
Technological feasibility. As discussed in Pertinent Legal
Authority (Section III), OSHA must prove, by substantial evidence in
the rulemaking record that its standards are technologically and
economically feasible, which the Supreme Court has defined as ``capable
of being done, executed, or effected'' (American Textile Mfrs. Inst. v.
Donovan (Cotton Dust), 452 U.S. 490, 506 n. 25 (1981)). A standard is
technologically feasible if the protective measures it requires already
exist, can be brought into existence with available technology, or can
be created with technology that can reasonably be expected to be
developed (Cotton Dust, 452 U.S. at 513; United Steelworkers v.
Marshall (Lead I), 647 F.2d 1189, 1272 (D.C. Cir, 1980), cert. denied,
453 U.S. 913 (1981)). OSHA is not bound by the ``technological status
quo.'' The Agency can be ``technology-forcing,'' that is, giving
industry a reasonable amount of time to develop new technologies (Lead
I, 647 F.2d at 1264).\5\
---------------------------------------------------------------------------
\5\ A determination of feasibility at the time a standard is
promulgated establishes a rebuttable presumption of feasibility.
Employers subject to an enforcement action can overcome this
presumption by demonstrating that the controls or action the
standard requires are not feasible for its operation (Lead I, 647
F.2d at 1272).
---------------------------------------------------------------------------
Stakeholders asserted various reasons why they believe it is not
technologically feasible to require fall protection on rolling stock
and motor vehicles that are not located in or contiguous to a building
or other structure. First, several stakeholders contend that guardrail
systems, safety net systems, and personal fall protection system are
not feasible in those locations (e.g., Exs. 158; 326; 329 (1/20/2011,
pgs. 156-58); OSHA-S029-2006-0662-0314).
Standfast USA said safety net systems are difficult to deploy and
guardrail systems either obstruct loading racks or cannot be raised
when the racks are present (Ex. 329 (1/20/2011, pgs. 156-58)).
Regarding personal fall protection systems, stakeholders stated
there is no place to install anchorage points when rolling stock and
motor vehicles are not located in or contiguous to a building or
structure (e.g., Exs. 121; 124; 126; 187; 192; 326; OSHA-S029-2006-
0662-0237; OSHA-S029-2006-0662-0244), and attaching them to the rolling
stock and motor vehicles is not feasible because the personal fall
protection system would compromise the strength or structural integrity
of the vehicles, which are made of aluminum, which ``fatigues over
time'' (Ex. 158; OSHA-S029-2006-0662-0219).
However, other stakeholders submitted evidence showing that
controls are available and in use on rolling stock and motor vehicles
regardless of location (e.g., Exs. 63; 130; 158; 161; 169; 185; 307;
335; OSHA-S029-2006-0662-0207; OSHA-S029-2006-0662-0208; OSHA-S029-
2006-0662-0329; OSHA-S029-2006-0662-0350; OSHA-S029-2006-0662-0373).
For example, the American Feed Industry Association (AFIA) said members
have found guardrail systems (i.e., railed walkways and catwalks;
``pop-up''/collapsible handrails) to be ``very effective'' regardless
of where rolling stock and motor vehicles are located (Ex. 158; see
also Exs. 161; 169; 335; OSHA-S029-2006-0662-0207; OSHA-S029-2006-0662-
0208; OSHA-S029-2006-0662-0350; OSHA-S029-2006-0662-0373). In addition,
stakeholders submitted evidence showing that personal fall protection
systems are available and in use in a broad range of industries,
regardless of the location of the rolling stock and motor vehicles
(e.g., Exs. 130; 148; 158; 198; 307; 355; OSHA-S029-2006-0662-0208;
OSHA-S029-2006-0662-0373). Some of these systems are attached to
rolling stock and motor vehicles (e.g., Exs. 307; 355; OSHA-S029-2006-
0662-0208), while others are stand-alone or portable, wheel-mounted
overhead systems that employers can use in open yards and other
locations (e.g., Exs. 148; 158; 198; 355-2; OSHA-S029-2006-0662-0373).
Second, several stakeholders stated that retrofitting rolling stock
and motor vehicles with fall protection is not feasible (Exs. 63; 158;
190; 192; 329 (1/20/2011, pgs. 112-13); 335; OSHA-S029-2006-0662-0219).
McNeilus Trucking, for instance, said retrofitting could affect the
structural integrity or performance of rolling stock and motor vehicles
(Ex. OSHA-S029-2006-0662-0219. See also Ex. 158). ILTA testified that
although fall protection systems ``are very routinely part of the
initial design'' in new equipment, existing rolling stock and motor
vehicles ``do not have assets that would readily accept a fall
protection system'':
It's not easy to take these piping manifolds and just simply
overlay a superstructure in many cases. . . . [W]hen we're looking
at older installations that might require retrofitting where . . .
retrofit really does require complete bulldoze and start over'' (Ex.
329 (1/20/2011, pgs. 112-13). See also Ex. 335).
Other stakeholders, including industry associations, commented that
rolling stock and motor vehicles have been retrofitted with fall
protection systems (e.g., Exs. 307; 335; 355), and pointed out that
there are many other types of portable and stand-alone fall protection
systems (e.g., overhead
[[Page 82508]]
trolley rail systems) available and in use instead of retrofitting
rolling stock and motor vehicles (e.g., Exs. 130; 198; 307; 329 (1/18/
2011, pgs. 90-92); 355; OSHA-S029-2006-0662-0207; OSHA-S029-2006-0662-
0208; OSHA-S029-2006-0662-0373).
Third, some stakeholders asserted fall protection on rolling stock
and motor vehicles is not feasible because of circumstances beyond
their control (Exs. 148; 181; 326). These stakeholders said, for
example, they cannot install fall protection systems because they do
not own the motor vehicles (i.e., leased fleet, belong to customers,
are inventory for sale) or rail carriers prohibit them from modifying
rolling stock without prior approval. Some stakeholders said FRA and
FMCSA requirements prevent them from using fall protection (Exs. 148;
326). For instance, NGFA stated that members cannot install fall
protection on rolling stock because of FRA ``clearance envelope''
requirements (Ex. 148). Similarly, Southeast Transportation Systems
(STS) said FMCSA rules on motor vehicle weight, height, width, length,
and accessory design (e.g., ladders) ``are just some of the factors
preventing the use of conventional fall protection systems'' (Ex. 326.
See also Exs. 158; OSHA-S029-2006-0662-0226). AFIA agreed:
Bulk feed transportation equipment must meet maximum height
constraints in order to comply with Department of Transportation
regulations. The maximum allowable height of trucks and trailers is
13'6''. Since the top of our equipment is approximately 13' high,
the industry is limited in positioning additional structures above
this height (Ex. 158).
Other evidence in the record, however, indicates that there are
many portable and stand-alone fall protection systems available and in
use today in both the rail and truck transportation industries,
including overhead cable line systems, moveable stairs with railings,
mobile access platforms with railings and/or safety cages and overhead
tarping systems (e.g., Exs. 198; 302; 355; OSHA-S029-2006-0662-0350;
OSHA-S029-2006-0662-0373). For example, an NGFA survey revealed that
nearly 40 percent of their member facilities have installed overhead
fall protection systems in railcar loading areas (Ex. 148. See also 63;
182; 335). The truck transportation industry has implemented a number
of fall protection systems, including portable and adjustable access
platforms/racks with railings or safety cages; pedestal platforms;
collapsible outer rails; and walkways with collapsible railings (e.g.,
Exs. 63; 357). Some stakeholders, including truck transportation
industry companies and associations, also pointed to the increasing use
of bottom-loading tanks and hoppers, which work even where there are
external constraints (e.g., Exs. 63; 158; 329 (1/20/2011, p. 143)).
Fall protection system manufacturers indicated that, based on their
experience, ``it is feasible and practical to provide workers with
active or passive means of fall protection [for working on rolling
stock and motor vehicles] in nearly every work situation'' (Ex. 329 (1/
18/2011, pgs. 82-83); see also Exs. 130; 185; 198; 307; 329 (1/18/2011,
pgs. 90-92, 164-66); 329 (1/20/2011) pgs. 144, 149-75); 355-2; 355-12;
OSHA-S029-2006-0662-0207; OSHA-S029-2006-0662-0208; OSHA-S029-2006-
0662-0329; OSHA-S029-2006-0662-0350; OSHA-S029-2006-0662-0373). For
example, FPS, which by 2003 already had provided more than 13,000 fall
protection systems to the rail and trucking industries, said they have
found ``no technological or economic obstacles'' to prevent employers
from providing fall protection equipment for rolling stock and motor
vehicles regardless of their location (Ex. 130). For many years,
manufacturers have been producing rolling stock and motor vehicle fall
protection systems especially designed for use in locations that are
not in or contiguous to buildings or other structures (e.g., Exs. 130,
307; 329 (1/18/2011, pgs. 82-83, 90-92); 329 (1/20/2011, pgs. 149-75,
188); 355; OSHA-S029-2006-0662-0208; OSHA-S029-2006-0662-0373). They
also have designed, and employers are using, technological advancements
that have eliminated the need for workers to climb on rolling stock and
motor vehicles (Exs. 302; 329 (1/20/2011, pgs. 144-45, 149-75, 188);
355; OSHA-S029-2006-0662-0207; OSHA-S029-2006-0662-0208; OSHA-S029-
2006-0662-0373). These advancements include tanker and hopper trucks
that load/unload from the bottom; automated loading/unloading and
tarping systems operated by ground-level controls (Exs. 63; 302; 329
(1/20/2011, pg. 143); see also Ex. 158). Several industry associations
said member companies are increasingly purchasing these new
technologies (Exs. 63; 158; 302). Safety and engineering consultants
confirmed the ready availability, effectiveness, and feasibility of the
new fall protection technologies for rolling stock and motor vehicles
(Exs. 227; 251; OSHA-S029-2006-0662-0227; OSHA-S029-2006-0662-0350).
Employers and industry associations submitted information about
effective fall protection controls that have been implemented (e.g.,
Exs. 63; 148; 158; 162; 169; 181; 182; 220; 326; 335; 337; OSHA-S029-
2006-0662-0177). For example, Ferro Corporation, which installed cable
line systems over rail cars and work platforms with railings on the top
of bulk trailers for loading/unloading coatings and other materials
reported that they have not experienced any falls since installing the
systems in 2000 (Ex. OSHA-S029-2006-0662-0177; see also Ex. 329 (1/20/
2011, pgs. 149-75)).
As mentioned, AFIA said member companies have installed several
types of fall protection systems (e.g., retractable overhead lanyards
and harnesses, elevated walkways, ``pop-up handrails,'' ground-level
controls for loading/unloading) that ``have proven to be effective'':
[T]he additional couple of minutes to don a full body harness
and attach it to a retractable lanyard are insignificant compared to
a lost-time accident (Ex. 158).
Industry associations also submitted information showing that a
significant portion of their member companies already have installed
fall protection systems for rolling stock and motor vehicles (Exs. 63;
148; 158; 162; 169; 181; 182; 220; 335; 357). For example, NGFA
reported that nearly 40 percent of all member facilities already have
installed overhead fall protection systems in railcar loading areas
(Ex. 148). Even ``country elevators,'' which generally load only one-
to three-railcar units, already have installed retractable safety lines
and electronic systems operated from ground level (Ex. 148; see also,
Ex. 220). CTRMC submitted photographs showing fall protection systems
already in use on cargo tank trucks in their industry, including tank
trucks located ``in the field'' (Ex. 63).
OSHA believes the evidence employers and industry associations
submitted shows it is technologically feasible in many cases for
employers to provide fall protection for rolling stock and motor
vehicles regardless of their location.
Jurisdiction. Several stakeholders oppose covering rolling stock
and motor vehicles in the final rule because they contend that OSHA
either lacks authority to require employers to provide fall protection
for employees who work on rolling stock and motor vehicles, or should
allow the FRA or FMCSA to exercise complete authority for regulating
rolling stock and motor vehicles, respectively (Exs. 124; 187; 326;
OSHA-S029-2006-0662-0202; OSHA-S029-2006-0662-0232).
Regarding rolling stock, FRA said the Federal Railroad Safety Act
(FRSA) grants them broad authority to regulate
[[Page 82509]]
railroad safety and they have promulgated regulations to protect
railroad employees from falling off of rolling stock (OSHA-S029-2006-
0662-0232. See also OSHA-S029-2006-0662-0206). Therefore, they contend
that Section 4(b)(1) of the OSH Act (29 U.S.C. 653(b)(1)) \6\
``displaces OSHA'' from regulating rolling stock. FRA also pointed out
that its ``Railroad Occupational Safety and Health Standards'' Policy
Statement states that FRA exercises complete authority for ``railroad
operations,'' which is the movement of equipment over the rails. FRA
said this authority includes design of ``rolling equipment used on a
railroad, since working conditions related to such surfaces are
regulated by FRA as major aspects of railroad operations'' (43 FR
10583, 10587 (3/14/1978)).
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\6\ Section 4(b)(1) specifies: Nothing in this chapter shall
apply to working conditions of employers with respect to which other
Federal agencies . . . exercise statutory authority to prescribe or
enforce standards or regulations affecting occupational safety and
health (29 U.S.C. 653(b)(1)).
---------------------------------------------------------------------------
In the preamble to the proposed rule, OSHA acknowledged that FRA
has authority to regulate ``railroad operations'' (75 FR 28867). At the
same time, OSHA noted that the FRA Policy Statement also recognizes
that OSHA has authority for certain ``occupational safety and health''
issues in the railroad industry:
FRA recognizes that OSHA currently is not precluded from
exercising jurisdiction with respect to conditions not rooted in
railroad operations nor so closely related to railroad operations as
to require regulation by FRA in the interest of controlling
predominant operational hazards (43 FR 10587).
Consistent with the Policy Statement, OSHA has authority over working
conditions that do not constitute ``railroad operations,'' such as
loading/unloading rolling stock by non-railroad employees off railroad
property.
The American Railroad Association (ARA) said OSHA should allow the
FRA to exercise authority over rolling stock for two reasons. First,
they said rolling stock presents ``special concerns, such as clearance
issues in rail tunnels and the unique configuration of rolling stock.''
Second, they said FRA, not OSHA, has ``expertise to determine when
regulations [on rolling stock] are necessary and the content of those
regulations'' (Ex. OSHA-S029-2006-0662-0202). OSHA believes it also has
the expertise to address fall hazards on rolling stock. That said,
``[i]n the past, FRA and OSHA have closely coordinated their mutual
efforts to improve workplace safety in the rail industry'' and OSHA
``is committed to continuing working cooperatively'' with FRA to
maintain and further develop its expertise in rail industry safety (Ex.
OSHA-S029-2006-0662-0232).
With regard to commercial motor vehicles, stakeholders asserted
that, under Section 4(b)(1), the Motor Carrier Safety Act (MCSA)
preempts OSHA from regulating commercial motor vehicles (Exs. 124; 187;
326). The MCSA defines ``commercial motor vehicle'' as a self-propelled
or towed vehicle used on the highways in interstate commerce to
transport passengers or property, if the vehicle:
Has a gross vehicle weight rating or gross vehicle weight
of at least 10,001 pounds, whichever is greater;
Is designed or used to transport more than 8 passengers
(including the driver) for compensation;
Is designed or used to transport more than 15 passengers,
including the driver, and is not used to transport passengers for
compensation; or
Is used in transporting material found by the Secretary of
Transportation to be hazardous under section 5103 of this title and
transported in a quantity requiring placarding under regulations
prescribed by the Secretary under section 5103 (49 U.S.C. 31132).
However, as interpreted by the courts and the Occupational Safety
and Health Review Commission, section 4(b)(1) does not create an
industry-wide exemption. Rather, it preempts OSHA regulation of a
particular workplace hazard addressed by the regulation of another
agency. Thus, an OSHA standard is preempted by the MCSA only to the
extent that the FMCSA has adopted a regulation for commercial motor
vehicles addressing the hazard. For example, FMCSA addresses fall
hazards for certain commercial motor vehicles in 49 CFR part 399. Since
the Agency did not propose any specific fall protection requirements
for rolling stock or motor vehicles, OSHA has not included any in this
final rule. However, it will continue to consider the comments it has
received, and in the future the Agency may determine whether it is
appropriate to pursue any action on this issue.
Construction vs. Maintenance. Some stakeholders expressed concerns
that OSHA does not clearly delineate what activities are maintenance
that the proposed general industry rule covers and what are
construction that fall under OSHA's construction standards (Exs. 124;
150; 196; 202). For example, SBA Advocacy said participants in their
small business roundtable were ``confused about which standard applies
under what circumstances'':
Participants noted that two employees could be working side by
side on similar tasks, but one could be covered by the general
industry standard and the other by the construction standard.
Representatives expressing these concerns included residential
construction and remodeling, painting, heating and air conditioning,
chimney sweeping, and others (Ex. 124).
In 1994, OSHA clarified the definitions of maintenance v.
construction activities:
OSHA's regulations define construction work as ``construction,
alteration, and/or repair, including painting and decorating.'' They
further provide that OSHA's construction industry standards apply
``to every employment and place of employment of every employee
engaged in construction work.'' . . . In order for work to be
construction work, the employer need not itself be a construction
company. . . . Further, construction work is not limited to new
construction. It includes the repair of existing facilities. The
replacement of structures and their components is also considered
construction. . . .
There is no specified definition for ``maintenance,'' nor is
there a clear distinction between terms such as ``maintenance,''
``repair,'' or ``refurbishment.'' ``Maintenance activities'' can be
defined by OSHA as making or keeping a structure, fixture or
foundation (substrates) in proper condition in a routine, scheduled,
or anticipated fashion. This definition implies ``keeping equipment
working in its existing state, i.e., preventing its failure or
decline.'' . . . [D]eterminations of whether [an employer] is
engaged in maintenance operations rather than construction
activities must be made on a case-by-case basis (Memorandum for
Regional Administrators (8/11/1994)).\7\
---------------------------------------------------------------------------
\7\ OSHA letter to Regional Administrators is available on
OSHA's Web site at: https://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_id=21569.
In subsequent letters of interpretation, OSHA identified factors
the Agency considers in determining whether the activity is maintenance
or construction and applied them to specific examples (Letter to
Randall Tindell (2/1/1999); \8\ Letter to J. Nigel Ellis (5/11/1999));
\9\ Letter to Raymond Knobbs (11/18/2003) \10\). Those factors include:
---------------------------------------------------------------------------
\8\ OSHA letter to Mr. Tindall is available on OSHA's Web site
at: https://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_id=22687.
\9\ OSHA letter to Mr. Ellis is available on OSHA's Web site at:
https://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_id=23328.
\10\ OSHA letter to Mr. Raymond Knobbs is available on OSHA's
Web site at: https://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_id=24789.
---------------------------------------------------------------------------
Nature of the work. Equipment reinstalled or replaced with
identical equipment is generally maintenance.
[[Page 82510]]
Replacement with improved equipment is construction;
Whether the work is scheduled. Activity that is an
anticipated, routine, and periodic event to keep equipment from
degrading and maintain it in its existing state is suggestive of
maintenance. As long as the activity continues to be a scheduled
activity, the passage of time between the activity, even 10 to 20
years, normally does not alter the characterization of the activity as
maintenance;
The scale and complexity of the activity; which also takes
into consideration the amount of time and material required to complete
it. Although a project may not necessarily be large in terms of scale,
a complex activity in terms of steps involved and tools and equipment
needed to complete is likely to be construction; and
The physical size of the object being worked on. Physical
size can be a factor if, because of its size, the process of removal
and replacement involves significantly altering the structure or
equipment that the object is in. Significant alterations of the
structure or equipment will likely be construction.
OSHA believes these factors and examples outlined in the letters of
interpretation provide useful guidance to help employers determine
whether a particular activity is maintenance or construction. If there
is an instance where an employer may not be able to easily classify an
activity as maintenance or construction, when measured against the
above factors, following the more protective standard will ensure
compliance.
In any event, since one of the primary goals of this rulemaking is
to harmonize the general industry and construction walking-working
surface standards, OSHA believes the distinction between maintenance
and construction is of much less significance. As discussed in the
introduction to the Summary and Explanation (Section IV), in updating
and revising the walking-working surface standards in subpart D and
adding new personal fall protection requirements to subpart I, OSHA
made requirements consistent with construction standards, where
possible. For example, in final Sec. Sec. 1910.28 and 1910.140, OSHA
adopts the flexible approach to providing fall protection systems that
the construction standard codified in 1994. Thus, whether performing
general industry or construction operations, employers may provide
personal fall protection systems to protect their workers. OSHA notes
that in the discussion of provisions in subparts D and I the Agency
identifies the corresponding construction standards the final rule
incorporates. As a result, OSHA believes that in most cases employers
will be able to use the same controls, particularly fall protection
systems, and follow the same work practices regardless of whether they
are performing general industry or construction activities.
Paragraph (b)--Definitions
Final paragraph (b) defines terms that are applicable to all
sections of final subpart D. For the most part, OSHA drew the final
definitions from the existing rule (existing Sec. 1910.21(a) through
(g)), other OSHA standards (e.g., 29 CFR 1926.450, 1926.500,
1926.1050), and national consensus standards. For example, the Agency
adopted several definitions from the construction fall protection
standard (Sec. 1926.500(b)) and revised the language of other
definitions to make them consistent with definitions in OSHA
construction standards. The Agency also drew a number of definitions
from the following national consensus standards, all of which have been
revised and updated or issued since OSHA adopted existing Sec.
1910.21(b) in 1971:
American National Standard Institute (ANSI) A14.1-2007,
American National Standard for Safety Requirements for Portable Wood
Ladders (ANSI A14.1-2007) (Ex. 376);
American National Standard Institute (ANSI) A14.2-2007,
American National Standard for Safety Requirements for Portable Metal
Ladders (ANSI A14.2-2007) (Ex. 377);
American National Standard Institute (ANSI) A14.3-2008,
American National Standard for Ladders--Fixed--Safety Requirements
(ANSI A14.3-2008) (Ex. 378);
American National Standard Institute (ANSI) A14.5-2007,
American National Standard for Safety Requirements for Portable
Reinforced Plastic Ladders (ANSI A14.5-2007) (Ex. 391);
American National Standard Institute (ANSI) A14.7-2011,
Safety Requirements for Mobile Ladder Stands and Mobile Ladder Stand
Platforms (ANSI A14.7-2011) (Ex. 379);
American National Standard Institute/American Society of
Safety Engineers (ANSI/ASSE) A10.18-2012, Safety Requirements for
Temporary Roof and Floor Holes, Wall Openings, Stairways, and Other
Unprotected Edges in Construction and Demolition Operations (ANSI/ASSE
A10.18-2012) (Ex. 388);
American National Standard Institute/American Society of
Safety Engineers (ANSI/ASSE) A10.32-2012, Fall Protection Systems--
American National Standard for Construction and Demolition Operations
(Ex. 390);
American National Standard Institute/American Society of
Safety Engineers (ANSI/ASSE) A1264.1-2007, Safety Requirements for
Workplace Walking/Working Surfaces and Their Access; Workplace, Floor,
Wall and Roof Openings; Stairs and Guardrail Systems (ANSI/ASSE
A1264.1-2007) (Ex. 13);
American National Standard Institute/American Society of
Safety Engineers (ANSI/ASSE) Z359.0-2012, Definitions and Nomenclature
Used for Fall Protection and Fall Arrest (ANSI/ASSE Z359.0-2012) (Ex.
389);
American National Standard Institute/International Window
Cleaning Association (ANSI/IWCA) I-14.1-2001, Window Cleaning Safety
(ANSI/IWCA I-14.1-2001) (Ex. 14);
American National Standard Institute (ANSI) MH30.2-2005,
Portable Dock Leveling Devices: Safety, Performance and Testing (ANSI
MH30.2-2005) (Ex. 20);
National Fire Protection Association (NFPA) 101-2012, Life
Safety Code (NFPA 101-2012) (Ex. 385); and
International Code Council (ICC) International Building
Code-2012 (IBC-2012) (Ex. 386).
Final paragraph (b) differs from the existing and proposed rules in
several respects. First, the final rule eliminates a number of terms
the regulatory text no longer uses. The final rule does not retain the
proposed definitions for the following terms because OSHA did not use
these terms in final subpart D: ``qualified climber,'' ``safety
factor,'' and ``single-point adjustable suspension scaffold.''
Second, in addition to the definitions in the proposed rule, final
paragraph (b) adds a number of new definitions, including
``anchorage,'' ``dangerous equipment,'' ``low-slope roof,'' ``personal
fall arrest system,'' ``personal fall protection system,''
``positioning system (work-positioning system),'' ``stairway
(stairs),'' ``travel restraint system,'' and ``warning line.'' Most of
the definitions are commonly used terms that pertain to new control
methods that the final rule allows employers to use to protect workers
from falling. For example, several definitions relate to personal fall
protection systems, which the final rule allows employers to use
instead of guardrails, cages, and wells specified by the existing rule.
Third, final paragraph (b) revises existing definitions to make
them consistent with OSHA's construction
[[Page 82511]]
standards (e.g., Sec. Sec. 1926.450, 1926.500, 1926.1050). OSHA is
aware that many employers and workers perform both general industry and
construction activities, and the Agency believes that making the
standards, including terminology, consistent will help those employers
better understand and fully comply with the final rule.
Fourth, final paragraph (b), like the proposed rule, reorganizes
the terms and definitions and clarifies that they are applicable to
every section of subpart D. By contrast, the existing rule in Sec.
1910.21 lists the terms and definitions for each section of subpart D
separately. Consequently, because the existing rule uses some terms in
more than one section of subpart D, it defines those terms multiple
times. Final paragraph (b) eliminates this unnecessary repetition,
thereby making the final rule easier to understand.
Fifth, and finally, in revising final paragraph (b), OSHA used
plain and performance-based language. The Agency believes these types
of revisions make the terms and definitions easy for employers and
workers to understand, and clarifies several issues raised by
stakeholders (discussed below).
The following paragraphs discuss the terms and definitions included
in final paragraph (b).
Alternating tread-type stair. The final rule, similar to the
proposal, defines this term as a type of stairway that consists of a
series of treads usually attached to a center support in an alternating
manner, such that a worker typically does not have both feet on the
same level while using the stairway. The limited width of the treads
makes it difficult or impossible for workers to place both feet on a
single tread. OSHA does not consider alternating tread-type stairs to
be ``standard stairs'' as defined in final Sec. 1910.21(b).
The existing rule did not specifically address or define
alternating tread-type stairs. The definition in the final rule is
consistent with ANSI/ASSE A1264.1-2007. OSHA received no comments on
the proposed definition and adopts it as discussed.
Anchorage. This is a new term added to the final rule. An anchorage
is defined as a secure point of attachment for equipment such as
lifelines, lanyards, deceleration devices and rope descent systems.
Anchorages can also be a component of a fall protection system. An
anchorage may be installed to serve such purpose or may be a fixed
structural member such as a post, beam, girder, column, floor, or wall
that is an integral part of a structure. An anchorage must be capable
of safely supporting the impact forces applied by a fall protection
system.
OSHA drew the term and definition for ``anchorage'' from the Sec.
1910.140, Personal fall protection systems. The definition is
consistent with the construction fall protection (Sec. 1926.500(b)),
the general industry powered platforms (Sec. Sec. 1910.66, appendix C,
Section I(b)), and the shipyard-employment fall protection standards
(Sec. 1915.151(b)). It also is consistent with the ``anchorage''
definition in ANSI/ASSE A10.32-2012 (Section 2.4) and ANSI/ASSE Z359.0-
2012 (Section 2.5). See Sec. 1910.140 for additional information and
discussion of stakeholder comments on the definition of ``anchorage.''
Authorized. This final term, like the proposal, refers to a worker
who the employer assigns to perform a specific type of duty, or be in a
specific location or area in the workplace. The work that authorized
employees perform and the work locations where they work often involve
situations or conditions where fall hazards are present, such as the
working side of teeming or slaughtering platforms, and open/unguarded
repair pits.
OSHA notes that once the employer assigns an authorized employee to
perform certain work tasks or to be in a certain location, the worker
may continue to perform those tasks or be in such work locations
without further approval. OSHA did not receive any comments on the
proposed definition and adopts it as discussed.
Cage. This term in the final rule, like the proposal, means an
enclosure mounted on the side rails of a fixed ladder or fastened to a
structure behind the fixed ladder. The final definition also specifies
that a cage surrounds the climbing space of the ladder. This will
contain the worker and direct a falling worker to a lower landing. A
cage may also be called a ``cage guard'' or ``basket guard.''
This definition is essentially the same as the definition for
``cage'' found in existing Sec. 1910.21(e)(11); it also is consistent
with ANSI A14.3-2008, American National Standard for Ladders--Fixed--
Safety Requirements. OSHA did not receive any comments on the proposed
definition and adopts it with only minor revisions for clarity.
Carrier. Final paragraph (b), similar to the proposed rule, defines
a carrier as the track of a ladder safety system that consists of a
flexible cable or rigid rail attached to the fixed ladder or
immediately adjacent to it. The final definition is consistent with
ANSI A14.3-2008 (Section 3). The final rule clarifies that fixed
ladders may have carriers mounted to them, usually onto the ladder face
or immediately adjacent to the ladder. OSHA received no comments on the
proposed definition and adopts it with the clarifications discussed.
Combination ladder. Final paragraph (b), like the proposed rule,
defines a combination ladder as a portable ladder that an employer can
use as a stepladder, extension ladder, trestle ladder, or a stairway
ladder. The final definition also specifies that employers may use the
components of a combination ladder separately as a single ladder.
The final definition is consistent with ANSI A14.1-2007, ANSI
A14.2-2007, and ANSI A14.5-2007. OSHA did not receive any comments on
the proposed definition and adopts it with only minor revisions for
clarity.
Dangerous equipment. The final rule adds this term and defines it
as equipment, such as vats, tanks, electrical equipment, machinery,
equipment or machinery with protruding parts, or other similar units
that, because of their function or form, may harm an employee who falls
into or onto it.
This new definition was added in response to a recommendation from
Northrop Grumman Shipbuilding that OSHA define ``dangerous equipment''
in the final rule (Ex. 180). OSHA drew the new definition from the
construction fall protection standard (Sec. 1926.500(b)).
Designated area. This term means a distinct portion of a walking-
working surface delineated by a warning line in which work may be
performed without additional fall protection. Examples of additional
fall protection include guardrails, safety nets, and personal fall
protection systems. As mentioned in the proposed rule and in the
discussion of final Sec. 1910.28(b)(13), a designated area is a non-
conventional fall protection method.
The final rule allows employers to use designated areas for work on
low-slope roofs (final Sec. 1910.28(b)(13)). The concept of a
designated area in the final rule is similar to controlled access zones
and warning line systems in OSHA's construction fall protection
standards (Sec. Sec. 1926.500(b) and 1916.502(g) and (h)), which also
do not require the use of conventional fall protection in specified
situations.
The final definition differs from the proposal in that the proposed
definition included the term ``temporary'' work, while the final does
not. OSHA continues to believe that employers need to limit use of
designated areas to short and brief tasks, such as equipment repair or
annual maintenance, that
[[Page 82512]]
workers perform on infrequent occasions; i.e., employers are not to use
designated areas for lengthy or routine jobs that involve frequent
exposure to fall hazards. However, including ``temporary'' in the
definition is unnecessary because final Sec. 1910.28(b)(13)(ii)
already limits the use of designated areas to work that is both
temporary and infrequent. OSHA did not receive any comments on the
proposed definition and adopts it as discussed.
Dockboard. In the final rule, dockboard means a portable or fixed
device that spans a gap or compensates for the difference in elevation
between a loading platform and a transport vehicle. The definition also
specifies that dockboards include, but are not limited to, bridge
plates, dock plates, and dock levelers. Examples of transport vehicles
include motor vehicles, trucks, trailers, rail cars, and other
vehicles.
The final rule uses the term ``transport vehicle'' in place of the
proposed term ``carrier.'' OSHA believes ``transport vehicle'' is clear
and familiar to employers as it is a commonly used term for a cargo-
carrying vehicle. The Agency drew the term from ANSI MH30.2-2005.
The final rule adds examples of devices that OSHA includes within
the definition of dockboards, including bridge plates, dock plates, and
dock levelers. The Agency believes that providing these examples will
help employers and workers better understand whether devices
manufactured under other names are ``dockboards.'' OSHA notes that the
list of dockboard examples is not exhaustive. That is, any device that
employers use to span a gap or compensate for the difference in levels
between a loading platform and transport vehicle is a dockboard for the
purposes of final subpart D.
OSHA did not receive any comments on the proposed definition and
adopts the definition with the changes discussed above.
Equivalent. In the final rule, this term means alternative designs,
equipment, materials, or methods that the employer can demonstrate will
provide an equal or greater degree of safety for workers compared to
the designs, equipment, materials, or methods specified in this
subpart.
OSHA proposed revising the definition of ``equivalent'' in existing
Sec. 1910.23(g)(6) to incorporate language from the construction
standards for fall protection, stairways, and ladders standards
(Sec. Sec. 1926.450(b); 1926.500(b); and 1926.1050(b)). These
standards specify that the employer has the burden to demonstrate that
the alternate designs, materials, methods, or items will provide an
equal or greater degree of safety for workers than the designs,
materials, methods, or items the final rule specifies or requires. OSHA
did not receive any comments on the proposed definition and finalizes
the term so it is consistent with OSHA construction standards.
Extension ladder. Final paragraph (b), like the proposed rule,
defines this term as a portable ladder that is non-self-supporting and
is adjustable in length. The final rule consolidates into one term, and
simplifies the language in, the definitions in existing Sec.
1910.23(c)(4) and (d)(4); this existing provision states that an
extension ladder ``consists of one or more sections traveling in guides
or brackets so arranged as to permit length adjustment.'' OSHA believes
that the concise, plain language in the final definition will enhance
understanding of requirements involving extension ladders; moving the
specifications currently in the existing standards to final Sec.
1910.23 also should improve understanding of these requirements.
The final definition generally is consistent with ANSI A14.1-2007,
ANSI A14.2-2007, and ANSI A14.5-2007. OSHA did not receive any comments
on the proposed definition and adopts it as proposed.
Failure. Final paragraph (b), similar to the proposed rule and
construction standards (Sec. Sec. 1926.450(b); 1926.500(b); and
1926.1050(b)), defines ``failure'' as a load refusal, breakage, or
separation of component parts. The final definition explains that a
``load refusal'' is the point at which the ultimate strength of a
component or object is exceeded. To illustrate, if the load exceeds the
ultimate strength of a walking-working surface, such as an elevated
work platform, the platform likely will collapse.
For the purpose of this definition, load refusal includes permanent
deformation of a component part, which is consistent with ANSI/ASSE
A1264.1-2007 (Section 2.3). For example, elongation of a connector that
causes the connector to lose its strength is the type of permanent
deformation OSHA intends the final definition to cover. Similarly,
damage to a guardrail system that weakens the bolts or other fasteners
so the system cannot support a worker's weight is the type of permanent
deformation the final definition intends to covers.
OSHA did not receive any comments on the proposed term and
definition and adopts the definition with minor editorial changes for
clarity.
Fall hazard. This term, in the final rule, means any condition on a
walking-working surface that exposes a worker to a risk of harm from a
fall on the same level or to a lower level. The final definition is
almost identical to the proposal; however, the final rule uses ``risk
of harm'' in place of ``injury.'' It is clear from the Analysis of Risk
(Section II) section and the Final Economic Analysis (FEA) (Section V)
that worker exposure to fall hazards can result in death as well as
injury. OSHA believes the language in the final definition more
accurately and fully captures the range of adverse outcomes that can
result from falls.
In response to the proposal, OSHA received one comment from Mr.
David Hoberg of DBM Corporations, recommending that OSHA add a specific
height to the definition of fall hazard (Ex. 206). He said that a
specific height is needed for enforcement purposes. OSHA disagrees. The
risk of a fall or other harm exists at any height, including on the
same level. That said, OSHA has established specific heights that
trigger fall protection requirements in final Sec. 1910.28. The final
definition is adopted as proposed.
Fall protection. The final rule, like the proposed rule, defines
``fall protection'' as any equipment, device, or system that prevents a
worker from falling from an elevation or that mitigates the effect of
such a fall. For the purposes of the final rule, ``mitigates the
effect'' means that the fall protection prevents the worker from coming
into contact with a lower level if a fall occurs. As noted in the
preamble to the proposed standard, examples of fall protection include
guardrail systems, safety net systems, ladder safety systems, personal
fall arrest systems, and similar fall protection systems. OSHA did not
receive any comments on the proposed definition and adopts it with
minor revisions for clarity.
Fixed ladder. The final definition of fixed ladder, which is
generally consistent with existing Sec. 1910.21(e)(2) and the proposed
rule, means a ladder with rails or individual rungs that is permanently
attached to a structure, building, or equipment. The definition also
states that fixed ladders include individual-rung ladders, but do not
include ship stairs, step bolts, or manhole steps.
The final definition differs from the existing and proposed rules
by clarifying what OSHA does not consider to be fixed ladders.
Accordingly, the final definition specifies that fixed ladders do not
include ship stairs (ship ladders), step bolts, and manhole steps.
Although these devices share some of
[[Page 82513]]
the same characteristics of fixed ladders, such as a vertical or steep
slope, the final rule clarifies that they are not fixed ladders, and
therefore, are covered under separate provisions of the final rule.
While fixed ladders include ladders attached to equipment, OSHA
notes ladders that are designed into or are an integral part of
machines or equipment are excluded from coverage by final Sec.
1910.23(a)(2).
The final definition, as revised, is consistent with OSHA's
stairways and ladders standard for construction (Sec. 1926.1050(b))
and ANSI A14.3-2008 (Section 3). OSHA received no comments on the
proposed definition and finalizes it with the revisions discussed.
Grab bar. This term means an individual horizontal or vertical
handhold installed to provide workers with access above the height of a
ladder. The final definition revises the existing and proposed rules in
two respects. First, the final definition adds language indicating that
employers can use grab bars installed either horizontally or
vertically. OSHA received one comment about the orientation of grab
bars. Nigel Ellis, of Ellis Fall Safety Solutions, recommended OSHA
require employers to use only horizontal grab bars when the length of
the bars exceeds six inches because it would be impossible to stop
workers' hands from sliding down the vertical grab bar during a fall
(Ex. 155). He also cited a University of Michigan study that
recommended using only horizontally oriented grab bars (Ex. 155,
discussing Young J, et al. ``Hand-Handhold Coupling: Effective Handle
Shape, Orientation, and Friction on Breakaway Strength,'' 51 Human
Factors 705-717 (2009)). OSHA is not adopting Mr. Ellis'
recommendations because the customary industry practice, as specified
by the ANSI fixed ladder standard (ANSI A-14.3-2008 (Section 5.3.3.1)),
is to allow the use of either horizontal or vertical grab bars and not
to limit the length of vertical grab bars.
Second, the final definition deletes language in existing Sec.
1910.21(e)(14) and the proposed rule specifying that employers use only
grab bars placed adjacent to a ladder or used as an extension of a
ladder. The final definition revises this language to ensure that
employers use only grab bars installed above the height of the ladder,
not adjacent to it. When grab bars are also in a vertical orientation
relative to a ladder, they are not an extension of the ladder;
therefore, the final definition removed the language from the proposal
referring to grab bars as an extension of a ladder.
Guardrail system. In the final rule, similar to the proposal, this
term means a barrier erected along an unprotected or exposed side,
edge, or other area of a walking-working surface to prevent workers
from falling to a lower level. A guardrail system generally consists of
vertical, horizontal, or inclined supports; top rails; midrails;
screens; mesh or solid panels; intermediate vertical members; or other
equivalent structural members. Guardrail systems can be either
permanent or removable. The final definition generally is consistent
with the scaffold and fall protection standards for construction
(Sec. Sec. 1926.450(b) and 1926.500(b)).
The proposed and final definition simplify the existing definitions
in Sec. 1910.21(a)(6) and (g)(7) by consolidating the terms
``guardrail'' and ``standard railing'' into the single term ``guardrail
system.'' The existing definitions are similar to, and included within,
the final definition. As a result, there is no need to include both
terms and definitions in the final rule since the single term
``guardrail system'' adequately covers both terms.
The final rule clarifies the proposed definition by specifying that
guardrails are barriers that employers may erect on a side, edge, or
other area of a walking-working surface (e.g., hole). The barrier may
be a framework or system of individual units used together to provide
protection. For example, a guardrail system may consist of several
barriers surrounding a hole.
OSHA did not receive any comments on the proposed definition and,
therefore, adopts it as explained.
Handrail. The final rule, like the proposed rule and the
construction stairways standard (Sec. 1926.1050(b)), defines a
handrail as a rail used to provide workers with a handhold for support.
Handrails may be horizontal, vertical, or sloping. According to ANSI/
ASSE A1264.1-2007 (Sections 2.6 and 2.7), handrails also may be part of
a stair rail or stair rail system (i.e., the top rail).
The proposed and final definition simplify and consolidate into one
term the three definitions for ``handrail'' in the existing rule in
Sec. Sec. 1910.21(a)(3), (b)(1), and (g)(8). Specifically, the final
definition deletes existing specifications for the materials (e.g.,
pipe, bar) that employers must use for handrails, which makes the final
definition consistent with final Sec. 1910.29, Fall protection systems
criteria and practices. The final definition also is consistent with
ANSI/ASSE A1264.1-2007 (Section 2.7). OSHA did not receive any comments
on the proposed definition and adopts the final definition as proposed.
Hoist area. In the final rule, like the proposal, a hoist area is
defined as any elevated access opening to a walking-working surface
through which equipment or materials are loaded or received. The final
definition deletes the term ``hoisted'' before the phrase ``equipment
or material'' in the proposed definition because the definition covers
any means of loading, passing, or receiving equipment or materials
through the hoist area. OSHA did not receive any comments on the
proposed definition and finalizes it with the revisions discussed.
Hole. The final rule, similar to the proposed rule, defines a hole
as a gap or open space in a floor, roof, horizontal walking-working
surface, or similar surfaces that is at least two inches in its least
dimension. Similar surfaces include runways, dockboards, stair treads,
and other low-slope or inclined surfaces where employees walk or work.
The existing rule contains four different terms for holes and openings
in walking-working surfaces: Floor hole (existing Sec. 1910.21(a)(1)),
floor opening (existing Sec. 1910.21(a)(2)), wall hole (existing Sec.
1910.21(a)(10)), and wall opening (existing Sec. 1910.21(a)(11)). Each
of the terms has a separate definition. ANSI/ASSE A1264.1-2007 contains
the same four terms and definitions.
The final definition consolidates and simplifies the existing rule
in two respects. First, the final rule designates a ``hole'' as a gap
or open space in ``horizontal walking-working surfaces,'' (e.g., floor,
roof, similar surfaces) and an ``opening'' as a gap or space in
``vertical walking-working surfaces'' (e.g., wall or partition). The
final definition of ``hole'' revises the proposed definition by adding
``horizontal'' and ``similar surfaces'' so employers know holes are not
limited to floors or roofs.
Designating the term ``hole'' to refer to gaps in horizontal or
similar walking-working surfaces allows OSHA to simplify and
consolidate the existing definitions for ``floor hole'' and ``floor
opening'' into a single term: ``hole.'' The existing rule in Sec.
1910.21(a)(1) defines a ``floor hole'' as a gap that is more than one
inch but less than 12 inches at its least dimension, while existing
Sec. 1910.21(a)(2) defines a ``floor opening'' as a gap that is 12
inches or more at its least dimension. Combining the two terms also
makes the final definition consistent with the definition in the
construction fall protection standard in Sec. 1926.500(b). The final
rule, like the proposal, also expands the term ``hole'' to cover gaps
in roofs and similar horizontal walking-working surfaces, as well as
floors.
[[Page 82514]]
Second, consistent with the Plain Writing Act of 2010, the final
definition substitutes ``open space'' for ``void'' to make the term
easier to understand.
OSHA received one comment on the proposed rule. Mark Damon, of
Damon, Inc., questioned the need for a definition of hole in a fall
protection standard, asserting that workers could not fall through a
two-inch or larger gap (Ex. 251). OSHA disagrees with Mr. Damon's
assertion. Although a worker cannot fall through a narrow (2-inch) hole
in a walking-working surface, such holes can cause workers to trip and
fall on the same level or to a lower level. Such falls can result in
worker injury or death. As such, OSHA is retaining the definition with
the changes discussed above.
Individual-rung ladder. This is a type of fixed ladder that has
rungs individually attached to a building or structure. It does not
include manhole steps. The proposed rule also excluded manhole steps.
Although manhole steps have individual rungs, they involve unique
conditions, and OSHA addresses these conditions in a separate section
of final subpart D (Sec. 1910.24). Therefore, the final definition
excludes manhole steps from the individual-rung ladder definition to
prevent any confusion and emphasize that final Sec. 1910.24, not final
Sec. 1910.23 applies to manhole steps.
The proposed rule also included ladders consisting of rungs
individually attached to a piece of equipment. Because final rule Sec.
1910.23(a)(2) excludes ladders designed into or integral to a piece of
equipment, there was no need to include such ladders within the
definition of individual rung ladders.
OSHA did not receive any comments on the proposed definition and
adopts it with the revisions discussed above.
Ladder. This term means a device with rungs, steps, or cleats used
to gain access to a different elevation. The final rule simplifies and
consolidates into one definition the three definitions of ``ladder'' in
the existing rule in Sec. 1910.21(c)(1), (d)(1), and (e)(1). The final
definition also eliminates references to ladder specifications (e.g.,
``joined at regular intervals'') since they simply repeat requirements
addressed by final Sec. 1910.23.
OSHA received one comment on the proposed ``ladder'' definition.
Steve Smith, of Verallia, recommended that OSHA clarify the term
because he said that the phrase ``a device with steps'' is ambiguous
and could include stairs as well as a ladder (Ex. 171). OSHA does not
agree that stakeholders might mistakenly think the term ``ladder''
includes stairs. The proposed and final definitions of ``ladder'' are
essentially the same as the one that all of the ANSI A14 ladder
standards use: ``Ladder. A device incorporating or employing steps,
rungs, or cleats on which a person may step to ascend or descend''
(see, e.g., ANSI A14.1-2007 (Section 4); ANSI A14.2-2007 (Section 4);
ANSI A14.3-2008 (Section 3); ANSI A14.5-2007 (Section 4)). The ANSI A14
ladder standards have been in place for years, and OSHA believes
employers, workers, and manufacturers clearly understand the term
``ladder,'' as defined in the ANSI standards, and will not confuse the
term with stairs. However, to ensure the final rule is understandable,
the final rule clarifies the definitions of ``rung, step, or cleat''
and ``tread'' to specify that a ``step'' is a cross-piece of a ladder
and ``tread'' refers to the horizontal part of ``stairways (stair).''
Ladder safety system. In the final rule, a ladder safety system is
a system designed to eliminate or reduce the possibility of falling
from a ladder. The final definition explains that a ladder safety
system usually consists of a carrier; a safety sleeve, which is a
moving component that travels on the carrier; a lanyard; connectors;
and a body harness. The final definition also specifies that cages and
wells are not ladder safety systems.
The existing rule in Sec. 1910.21(e)(13) uses a similar term,
``ladder safety device,'' which also excludes ladder cages and wells.
OSHA's construction ladder standard in Sec. 1926.1053 uses the same
term, but does not include a definition of the term. The final
definition is consistent with the ANSI fixed-ladder standard (ANSI
A14.3-2008; Section 3).
OSHA received one comment on the definition of ladder safety
system. Darryl Hill, of the American Society of Safety Engineers
(ASSE), urged OSHA to prohibit the use of body belts in ladder safety
systems as the Agency did with personal fall arrest systems:
ASSE opposes the use of body belts. There are good ``safety
reasons'' . . . for supporting OSHA's decision in 1998 to ban the
use of body belts as part of a personal fall arrest system. OSHA
needs to take this opportunity to ban their use entirely for the
same reasons it banned them in 1998. A full body harness distributes
arresting forces over larger areas of the workers body and provides
better suspension support, as research has repeatedly confirmed (Ex.
127).
OSHA agrees with ASSE that full-body harnesses provide better
suspension support precisely because they distribute arresting/impact
forces over a larger area of a worker's body than body belts. To that
end, the final rule in Sec. 1910.140(d)(3) retains OSHA's 1998
prohibition on the use of body belts as part of a personal fall arrest
system. OSHA believes this requirement in final Sec. 1910.140
addresses ASSE's concern and the Agency encourages employers to
provide, and require that their workers use body harnesses when using
any type of personal fall protection equipment.
Low-slope roof. This is a new term that OSHA added to the final
rule. Low-slope roof is defined as a roof with a slope less than or
equal to a ratio of 4 in 12. A ratio of 4 in 12 means a vertical rise
of 4 units (e.g., inches, feet, meters) to every 12 units of horizontal
run. The final definition is almost identical to the definition of
``low-slope roof'' found in the construction fall protection standard
in Sec. 1926.500(b).
OSHA added this term to final paragraph (b) because the final rule
includes a new provision on controlling fall hazards on low-slope roofs
(final Sec. 1910.28(b)(13)), which is consistent with the construction
fall protection standard in Sec. 1926.501(b)(10). OSHA is aware that
low-slope roofs also are referred to as ``flat roofs.'' However, even a
so-called ``flat roof'' has some slope to allow for drainage. As such,
OSHA believes that the term ``low-slope roof'' more accurately
represents these roofing configurations.
Lower level. The final rule, similar to the proposal, defines this
term as a surface or area to which workers could fall. The final
definition lists examples of lower levels including, but not limited
to, ground levels, floors, roofs, ramps, runways, excavations, pits,
tanks, materials, water, equipment, and similar surfaces and
structures, or portions thereof. The final rule adds to the proposed
definition of lower level ``surface'' and ``structures, or portions
thereof,'' which make the final definition consistent with the
definition of ``lower level'' in the construction fall protection
standard in Sec. 1926.500(b). The construction standards for
scaffolds, and stairways and ladders, also have similar definitions
(Sec. Sec. 1926.450(b); 1926.1050(b)). OSHA did not receive any
comments on the proposed definition and adopts it with the changes
discussed above.
Manhole steps. The final rule, similar to the proposal, defines
these as steps that are individually attached to, or set into the walls
of a manhole structure. Although the steps are individually set into or
attached to the walls, manhole steps are not considered ``individual-
rung ladders'' as stated in the final definition of ``fixed ladders.''
Manhole steps also do not include manhole entry
[[Page 82515]]
ladders which are portable and are covered in final Sec. 1910.23,
Ladders.
OSHA did not receive any comments on the proposed definition and
adopts it with minor editorial changes.
Maximum intended load. The final rule, similar to the proposal,
defines this term as the total load (weight and force) of all
employees, equipment, vehicles, tools, materials, and other loads the
employer reasonably anticipates to be applied to a walking-working
surface at any one time. The existing rule in Sec. 1910.21(f)(19) and
the construction standards for scaffolds, and stairways and ladders in
Sec. Sec. 1926.450(b) and 1926.1050(b) have similar definitions.
OSHA clarified the final definition in several ways. First, the
proposed rule indicated that ``maximum intended load'' was also known
as ``designed working load.'' OSHA is aware that ``designed working
load'' is an outdated term; thus, the final definition deletes it.
Second, the final definition adds language clarifying that the maximum
intended load includes the combined total weight of the load, as well
as the force of the load.
Third, the final definition adds ``vehicles'' to the list of
potential components of a total load. Vehicles are found on many types
of walking-working surfaces, and determinations of the maximum intended
load must include the weight of vehicles, and the load being carried by
the vehicles, applied to the walking-working surface.
Fourth, the final definition adds language clarifying that
employers are responsible for determining the maximum load in terms of
all equipment, vehicles, materials, workers, and other items they
reasonably anticipate applying to a walking-working surface. Requiring
that an employer know the maximum weight and force a walking-working
surface can support and the total weight and force of the loads they
reasonably anticipate applying to that surface is essential in
safeguarding workers from harm, e.g., falls from elevated surfaces and
being struck by falling objects. OSHA believes the language added to
the final definition clarifies the employers' responsibility.
Fifth and finally, the final definition adds the language ``at any
time'' to make the definition consistent with other OSHA standards
(e.g., existing Sec. Sec. 1910.21(f)(19); 1926.450(b); 1926.1050(b)).
OSHA did not receive any comments on the proposed definition and
adopts it with the revisions discussed above.
Mobile. The final rule, like the proposed rule, defines ``mobile''
as being manually propelled or movable. The existing rule defines
``mobile'' as manually propelled (existing Sec. 1910.21(g)(12)). The
proposed and final definitions update the existing rule to make it
consistent with ANSI A14.7-2011 (Section 3), which specifies that
``mobile'' also means ``moveable.'' OSHA believes that the final
definition also clarifies the definitions of ``mobile ladder stand''
and ``mobile ladder stand platform.''
In the proposal, OSHA asked for comment on whether it is necessary
to define a common term like ``mobile,'' but the Agency did not receive
any comments. Therefore, OSHA adopts the proposed definition with one
editorial clarification (replacing ``and/or'' with ``or'').
Mobile ladder stand. This term (also known as ``ladder stand'')
means a mobile, fixed-height, self-supporting ladder usually consisting
of wheels or casters on a rigid base and steps that leads to a top
step. The final definition explains that a mobile ladder stand also may
have handrails and is designed for use by one worker at a time. A
parenthetical in the definition refers to ``ladder stand'' as another
name for mobile ladder stands; ``ladder stand'' is the term used for
mobile ladder stands in existing Sec. Sec. 1910.21(g)(9), 1926.450(b),
and 1926.1050(b), and ANSI A14.7-2011 (Section 3).
The final definition clarifies the proposed rule and OSHA's
existing definition for ladder stand in several ways. First, the final
definition adds language clarifying that mobile ladder stands usually
consist of wheels or casters on a rigid base, in addition to steps.
This addition clearly distinguishes ladder stands from other types of
ladders. Second, the final rule simplifies and clarifies the definition
by using the term ``steps'' in place of ``treads in the form of
steps,'' which is in the existing and proposed definitions. The term
``step,'' which final paragraph (b) also defines, is clear and well
understood, and does not require further elaboration.
Third, the final definition deletes the proposed term ``flat'' used
to describe ladder stand steps because it is not necessary. Final Sec.
1910.23 establishes requirements for ladder stand steps (final
Sec. Sec. 1910.23(b)(1) and (b)(4)). OSHA did not receive any comments
on the proposed definition and adopts it with the clarifications
discussed above.
Mobile ladder stand platform. The final rule defines this term as a
mobile, fixed-height, self-supporting unit having one or more standing
platforms that are provided with means of access or egress. Existing
OSHA standards do not include or define the term ``mobile ladder stand
platforms.'' \11\ Frequently employers use mobile ladder stand
platforms to provide elevated standing or working surfaces for one or
more employees.
---------------------------------------------------------------------------
\11\ OSHA notes that the existing general industry rule includes
the terms ``platform ladder'' and ``mobile work platform.'' Existing
Sec. 1910.21(d)(5) defines ``platform ladder'' as a ``self-
supporting ladder of fixed steps with a platform provided at the
working level.'' Existing Sec. 1910.21(g)(13) defines ``mobile work
platform'' as ``a fixed work level one frame high on casters or
wheels, with bracing diagonally from platform to vertical frame.''
Both terms include elements of the final definition of ``mobile
ladder stand platform.'' In the proposed rule, OSHA consolidated and
simplified existing terms into one term: Mobile ladder stand
platform.
---------------------------------------------------------------------------
The final definition is consistent with ANSI A14.7-2011, although
the ANSI standard, like the proposed rule, includes the definition of
mobile ladder stand. OSHA did not receive any comments on the proposed
definition and finalizes the definition with minor clarifications.
Open riser. The final rule, which is similar to existing Sec.
1910.21(b)(3) and the proposed rule, defines ``open riser'' as a gap or
space between treads of stairways that do not have upright (vertical)
or inclined members (risers).
OSHA clarified the proposed definition slightly by adding
terminology to the final definition that it used in the final
definition of ``riser.'' This terminology specifies that, in addition
to not having upright (vertical) members, stairways with open risers do
not have inclined members. This revision makes the final definition
consistent with ANSI/ASSE A1264.1-2007 (Section 2.11).
OSHA did not receive any comments on the proposed definition and
adopts it with the clarifications discussed above.
Opening. The final rule, similar to the proposed rule, defines this
term as a gap or open space in a wall, partition, vertical walking-
working surface, or similar surface that is at least 30 inches high and
at least 18 inches wide, through which a worker can fall to a lower
level.
As discussed in the definition of ``hole,'' the final rule
simplifies and consolidates four terms in the existing rule that
distinguish between openings and holes in walking-working surfaces. As
mentioned, the term ``opening'' in the final rule refers to gaps or
open spaces in areas that are generally vertical, such as walls and
partitions. The final definition consolidates into one term the
definitions of ``wall hole'' and ``wall opening'' in existing Sec.
1910.21(a)(10) and (a)(11). This consolidation makes the final
definition of ``opening'' consistent with the construction fall
protection standard
[[Page 82516]]
(Sec. 1926.500(b)), one of OSHA's stated goals of the final rule. OSHA
believes that having consistent general industry and construction
definitions will facilitate compliance with the final rule. The final
definition also is nearly identical to the definition of ``opening'' in
ANSI/ASSE A10.18-2012 (Section 2.9).
Consistent with the Plain Writing Act of 2010, the final definition
substitutes ``open space'' for ``void'' to make the term easier to
understand.
OSHA did not receive any comments on the proposed definition and
adopts the term as discussed above.
Personal fall arrest system. This is a new term OSHA added to
subpart D in the final rule and means a system used to arrest a
worker's fall from a walking-working surface if one occurs. The final
definition explains that a personal fall arrest system consists of a
body harness,\12\ anchorage, connector, and a means of connecting the
body harness and anchorage, such as a lanyard, deceleration device,
lifeline, or a suitable combination of these. A definition for personal
fall arrest systems was provided in proposed subpart I in Sec.
1910.140 (75 FR 29147). Because the term is used in final subpart D,
and OSHA believes the term is integral to understanding the final rule,
the Agency decided to include the same definition in subpart D.
---------------------------------------------------------------------------
\12\ OSHA notes the final rule prohibits the use a body belt as
part of a personal fall arrest system (final Sec. 1910.140(d)(3)).
---------------------------------------------------------------------------
The final definition is consistent with OSHA's construction
standards for scaffolds and fall protection in Sec. Sec. 1926.450(b)
and 1926.500(b), respectively, and ANSI/ASSE Z359.0-2012 (Section
2.98). See the preamble to final Sec. 1910.140 for further discussion
and comments on personal fall arrest systems.
Personal fall protection system. This is a new term OSHA added to
subpart D in the final rule and means a system (including all
components) an employer uses to provide protection from falling or to
safely arrest a worker's fall if one occurs. The final definition
identifies examples of personal fall protection systems, including
personal fall arrest systems, travel restraint systems, and positioning
systems.
Personal fall protection systems have the following components in
common: An anchorage, body support (i.e., body harness or body belt),
and connectors (i.e., means of connecting the anchorage and body
support).
A definition for personal fall protection systems was provided in
the proposed rule, in proposed Sec. 1910.140 (75 FR 29147). Because
the term is used in final subpart D, and OSHA believes the term is
integral to understanding the final rule, the Agency decided to include
the same definition in subpart D. The requirements for, and comments
on, personal fall protection systems are in final Sec. 1910.140,
Personal fall protection systems.
Platform. In the final rule, like the proposal, a platform is
defined as a walking-working surface that is elevated above the
surrounding area. OSHA drew the proposed and final definitions from
existing Sec. 1910.21(a)(4) and the construction scaffold standard in
Sec. 1926.450(b). The final rule is consistent with the definition in
ANSI/ASSE A1264.1-2007.1-2007 (Section 2.14).
OSHA did not receive any comments on the proposed definition and
adopts it as proposed with a minor editorial revision.
Portable ladder. The final rule, like the proposal, defines this
term as a ladder that can readily be moved or carried, and usually
consists of side rails joined at intervals by steps, rungs, or cleats.
The definition in the final rule is consistent with the definition of
portable ladder in ANSI A14.1-2007 (Section 4), ANSI A14.2-2007
(Section 4), and ANSI A14.5-2007 (Section 4).
The final rule clarifies the definition by deleting the language
``rear braces'' from the proposed definition to eliminate any confusion
about what constitutes a portable ladder for the purposes of the final
rule. Rear braces are a structural component of self-supporting
portable ladders; however, as mentioned above, the final definition of
portable ladder is not limited to those types of ladders.
OSHA notes that portable ladders include, but are not limited to,
self-supporting, non-self-supporting, articulated, sectional,
extension, special purpose, and orchard ladders. OSHA believes that the
term portable ladders should be widely understood by employers.
OSHA received one comment on the proposed definition. Virginia
Ruiz, representing California Rural Legal Assistance Foundation and
Farmworker Justice, urged OSHA to cover agriculture operations in the
final rule (Ex. 201). In her comment, Ms. Ruiz pointed out that
proposed revisions to the California general industry portable-ladder
standards (Title 8 CCR, Sections 3276, 3277, 3278, 3287, and 3413)
cover special-purpose orchard and fruitpickers' ladders (Ex. 201). For
further discussion on the inclusion of agriculture operations in
subpart D, see the discussion above in final paragraph (a), Scope.
Positioning system (work-positioning system). This is a new
definition OSHA added to subpart D in the final rule. It means a system
of equipment and connectors that, when used with a body harness or body
belt, allows an employee to be supported on an elevated vertical
surface, such as a wall or window sill, and work with both hands free.
Positioning systems also are called ``positioning system devices'' and
``work-positioning equipment.''
The definition is the same as the definition in Sec. 1910.140(b).
The newly revised electric power generation, transmission, and
distribution standard in Sec. 1910.269, and the construction standard
for fall protection in Sec. 1926.500(b), also contain similar terms
and definitions. The final definition also is consistent with ANSI/ASSE
Z359.0-2012 (Section 2.120).
Although the proposed rule for subpart D used the term work-
positioning system, the proposal did not define it. The Agency believes
it is important to define positioning systems in final subpart D to
ensure that employers and workers understand the meaning of this term
as used in this subpart, most importantly that such systems do not
arrest falls from elevated walking-working surfaces.
Qualified. In the final rule, like in the proposal, ``qualified''
describes a person who, by possession of a recognized degree,
certificate, or professional standing, or who by extensive knowledge,
training, and experience has successfully demonstrated the ability to
solve or resolve problems relating to the subject matter, the work, or
the project. This definition is the same as the definition in the
proposed rule and final Sec. 1910.140(b), as well as several
construction standards (Sec. Sec. 1926.32(m); 1926.450(b)) and ANSI
A10.32-2012 (Section 2.41).
The final definition, however, differs from the definition of
``qualified person'' in the general industry powered platforms standard
(Sec. 1910.66, Appendix C, Section I(b)) and ANSI/ASSE Z359.0-2012.
The Sec. 1910.66 definition, for instance, requires that qualified
persons have a degree or professional certificate, not only
professional standing, plus extensive knowledge, training, and
experience. OSHA explained in the proposed rule that to require
qualified persons to meet the definition in the powered platforms
standard would mean that the qualified person ``would most likely need
to be an engineer'' (75 FR 28905).
Two stakeholders recommended that the Agency adopt the definition
in
[[Page 82517]]
Sec. 1910.66 (Exs. 155; 206). Mr. Ellis urged OSHA to adopt the Sec.
1910.66 definition at least as it pertains to certification of
anchorages. He also said:
After investing 40 years in industrial fall protection it is
important to feed back my experiences from hundreds of site visits
and contacts over that time. I am strongly recommending that the
word ``or'' be replaced with ``and''. Both are critically important
and the anchorage must be documented with at least a sketch or
engineering drawing which presently it rarely is except for 1910.66
App. C. In America, anchorages are mostly guesswork and this does
not do justice to ``the personal fall arrest system'' term that OSHA
is seeking to establish unless the engineering background is added.
Furthermore the design of anchorages can easily be incorporated into
architects and engineers drawings but is presently not because there
is no requirement for an engineer. This simple change may result in
saving over one half the lives lost from falls in the USA in my
opinion (Ex. 155).
Mr. Hoberg, of DBM, Inc., said that defining qualified ``has been a
struggle for decades'' and that the Sec. 1910.66 definition ``is a
good one'':
Two things have become commonly accepted--a competent person is
one who has enough experience and knowledge to know when to call a
qualified person. A qualified person is one who knows the technical
and working practice aspects of the problem.
The problem we have had was how to limit the `I know, therefore
I am a qualified person' (Ex. 206).
The final rule does not adopt the definition of ``qualified
person'' in Sec. 1910.66 appendix C. The definition of ``qualified''
in the final rule has been in use for years in the referenced
construction standards. OSHA believes the definition is clear and
employers understand it. In addition, OSHA believes that employers
understand and can distinguish between qualified and competent persons.
With regard to the certification of anchorages, OSHA believes that
the anchorage requirements in final Sec. Sec. 1910.27 and 1910.140,
combined with the final definition of ``qualified'' person, are
adequate to ensure worker safety. OSHA notes that building owners are
free to have their building anchorages certified by professional
engineers. Therefore, OSHA finalizes the definition of ``qualified'' as
proposed.
Ramp. The final rule defines ramp as an inclined walking-working
surface that is used to gain access to another level. Employers use
ramps to move workers, equipment, materials, supplies, and vehicles
from one level to another. Ramps also allow workers to access another
level when stairs are not available or workers cannot use them (such as
for workers who use wheelchairs). Ramps generally are permanent devices
or structures, although some ramps may be portable, such as ramps that
employers use temporarily for accessing a different level where moving
equipment or materials up or down stair risers or curbs is impractical.
The proposed rule, similar to the 1990 proposal, defines ramp as an
inclined surface between different elevations that is used for the
passage of employees, vehicles, or both. The final rule revises the
proposed definition for two reasons. First, the proposed definition
only refers to the passage of employees and vehicles, but not other
things that may be moved across ramps, such as materials, supplies, and
equipment. The final definition does not limit the use of ramps as
passageways. Second, the final rule simplifies the proposed definition
to make it consistent with the definition in ANSI/ASSE A1264.1-2007
(Section 2.16).
OSHA did not receive any comments on the proposed definition and
adopts it as discussed above.
Riser. In the final rule, this term means an upright (vertical) or
inclined member of a stair located at the back of a stair tread or
platform that connects close to the front edge of the next higher
tread, platform, or landing. The final definition is consistent with
ANSI/ASSE A1264.1-2007 (Section 2.17).
The final rule differs from the proposed definition in that the
final definition clarifies that risers may also be inclined (nearly
vertical), as well as vertical, members of a stair, and connect treads
to the next higher tread, platform or landing. The height of a riser is
measured as the vertical distance from the tread (horizontal surface)
of one step to the top of the leading edge of the tread above it (see
Figure D-8.). OSHA did not receive any comments on the proposed
definition and adopts it with the clarification discussed above.
Rope descent system. In the final rule, a rope descent system (RDS)
is defined as a suspension system that allows a worker to descend in a
controlled manner and, as needed, to stop at any time during the
descent. The final definition adds language to the proposed definition
explaining that the RDS usually consists of a roof anchorage, support
rope, a descent device, carabiner(s) or shackle(s), and a chair
(seatboard). The final definition also states that an RDS may also be
called controlled descent equipment or apparatus; and does not include
industrial rope access systems. OSHA based the final definition of
``rope descent system'' on the definition of the term in ANSI/IWCA I-
14.1-2001, since the existing rule does not include the term.
OSHA revised the final definition in several ways. First, the ANSI/
ASSE Z359.0-2012 (Sections 2.13 and 2.100) defines both ``automatic
descent control device'' and ``manual descent control device.''
However, neither definition encompasses the entire system. The Agency's
final definition, like ANSI/IWCA I-14.1-2001, covers the entire system,
not just the descent control device. In light of the ANSI/ASSE Z359.0-
2012 definitions, OSHA believes that stating, as in the proposal, that
another name for an RDS is ``controlled descent device'' may be
confusing. Therefore, OSHA removed that statement in the final
definition. To further clarify the final definition and distinguish it
from the terms in ANSI/ASSE Z359.0-2012, OSHA added language
identifying components of a typical RDS.
Second, OSHA added language to the final rule specifically
excluding industrial rope-access systems from the final definition of
``rope descent system.'' OSHA received several comments recommending
that the term ``rope descent system'' include industrial rope access
systems, either as part of rope descent systems or as a new section
(e.g., Exs. 129; 205; 355-7; 347). One commenter said that rope descent
systems are a type of industrial rope access system (Ex. 362). However,
some commenters believe the definition of ``rope descent system''
already includes industrial rope access systems (Exs. 69; 72; 122; 168;
178). For example, the American Wind Energy Association (AWEA) said
they use industrial rope access systems as rope descent systems for
repair and maintenance of wind turbines (Ex. 178). AWEA recommended
that the definition of, and requirements for, rope descent systems
should incorporate and reference the Society of Professional Rope
Access Technicians (SPRAT) and the International Rope Access
Technicians Association standards, which AWEA said ``are much more
developed'' than the ANSI/IWCA I-14.1-2001 standard.
In light of the comments, not only does the final definition
clarify that rope descent systems do not include industrial rope access
systems, but also final Sec. 1910.27, Scaffolds and rope descent
systems, explains that the final rule does not cover industrial rope
access systems. OSHA agrees, as SPRAT pointed out, that while
industrial rope access systems may use equipment similar to rope
descent systems (e.g.,
[[Page 82518]]
anchorages, body harnesses, lifelines), they are ``different in key
ways'' from rope descent systems (Ex. 355-7). For example, industrial
rope access systems are suspension systems that allow the worker to go
up or down, while rope descent systems only go down. Also, industrial
rope access systems have sit harnesses instead of seatboards or chairs.
Third, OSHA received several comments that opposed OSHA's
characterization of a rope descent system in the proposal as a
``variation of the single-point adjustable suspension scaffold'' (Exs.
62; 168; 205). For example, Brian Gartner, of Weatherguard Service,
Inc., said, ``A rope descent system is not a variation of the single
point adjustable scaffold. The scaffold has the capability of being
raised as well as being lowered, rope descent systems only travel
downward, and a scaffold has an area, a platform, to store tools and
supplies, stand, etc.'' (Ex. 168). OSHA agrees with the commenters and
deleted that comparison from the final definition.
Rung, step, or cleat. Similar to the proposal, the final rule
defines ``rung, step, or cleat'' as the cross-piece of a ladder on
which a worker steps to climb up and down the ladder. OSHA notes that
in the final definition, ``steps'' only refer to the cross-pieces of
ladders. The final definition is consistent with ANSI A14.1-2007
(Section 4), ANSI A14.2-2007 (Section 4), and ANSI A14.5-2007 (Section
4).
The final definition consolidates and simplifies the existing
definitions into one term that identifies their common characteristics
and purpose (see existing Sec. 1910.21(e)(8), (9), and (10)). The
final definition also incorporates plain language (``climb up and
down'') to explain that workers use rungs, steps, or cleats to ascend
or descend ladders.
OSHA received one comment on the proposed definition. Nigel Ellis
said OSHA should retain the separate definitions in the existing rule
``to explain a rung is designed for holding and stepping but that a
step cannot be held since it is only for the feet (shoes)'' (Ex. 155).
OSHA does not agree that including such language is necessary.
First, the final definition is consistent with ANSI portable ladder
standards (ANSI A14.1-2007, ANSI A14.2-2007, and ANSI A14.5-2007).
Rungs, steps, and cleats are all horizontal surfaces for climbing
ladders, even if their specifications vary. (Rungs are circular or
oval, cleats are rectangular, and steps are flat). Instead of focusing
on the differences in the specification, the final rule and the ANSI
standards identify, and focus on, the primary purpose of rungs, steps,
and cleats; to provide a place to step to climb up and down the ladder.
Second, OSHA believes it is not accurate to say that ``a step
cannot be held'' (Ex. 155). Although side rails provide handholds for
climbing ladders, especially those with steps, neither the final rule
nor the ANSI standards prohibit workers for holding onto steps, either
while climbing or standing on a ladder. As such, OSHA believes the
language Mr. Ellis suggests may cause confusion; therefore, OSHA is not
adopting it.
Runway. In the final rule, similar to the proposal, this term means
an elevated walking-working surface, such as a catwalk, a foot walk
along shafting, or an elevated walkway between buildings. The final
definition is consistent with ANSI/ASSE A1264.1-2007 (Section 2.19).
OSHA added three clarifications to the final ``runway'' definition.
First, the final definition substitutes ``walking-working surface'' for
``passageway.'' This change makes the definition consistent with the
definitions of other terms in final subpart D. Second, the final
definition also more clearly indicates that employees use runways to
perform work as well as to gain access to other areas in the workplace.
Third, the final rule simplifies the definition by substituting plain
language (i.e., ``elevated'') in place of ``elevated above the
surrounding floor or ground level'' used in the proposed definition.
OSHA did not receive any comments on the proposed definition and
adopts it with the clarifications discussed above.
Scaffold. In the final rule, like the proposal and consistent with
the construction scaffold standard (Sec. 1926.450(b)), this term means
any temporary elevated or suspended platform and its supporting
structure, including anchorage points, used to support workers,
equipment, materials, and other items. The final rule also states that,
for purposes of final subpart D, ``scaffold'' does not include crane-
suspended or derrick-suspended personnel platforms or rope descent
systems.
The final rule consolidates into a single term the two definitions
in the existing rule in Sec. 1910.21(f)(27) and (g)(15). The final
definition also adds two clarifications to the proposed definition.
First, it adds ``equipment'' to the list of items a scaffold must be
capable of supporting. Second, it also clarifies that the final
definition of scaffold, including suspension scaffolds, does not
include rope descent systems. As discussed above, a number of
commenters opposed characterizing rope descent systems as a type of
single-point adjustable scaffold (Ex. 62; 168; 205). One commenter,
David Hoberg, with DBM Consultants, said rope descent systems differ in
many ways from scaffolds. For instance, he said the stabilization
required for rope descent systems over a height of 130 feet differs
from the stabilization required for scaffolds (Ex. 206). Consequently,
OSHA added to the definition of scaffold that the term does not apply
to rope descent systems.
Ship stair (ship ladder). In the final rule, like the proposal, a
ship stair, also known as a ship ladder, is a stairway that is equipped
with treads, stair rails, and open risers, and has a slope that is
between 50 and 70 degrees from the horizontal. The final definition is
consistent with ANSI/ASSE A1264.1-2007 (Section 2.22).
Ship stairs are not standard stairs within the meaning of this
section. Generally, ship stairs are a type of stairway found in
buildings and structures that have limited space, and are used for
accessing special use areas, such as but not limited to, attics, roofs,
mechanical equipment spaces, etc.
OSHA notes that ship stair is a term of art and use of the term in
this subpart is not intended to infer applicability to the shipyard
employment, marine terminal, or longshoring industries.
OSHA did not receive any comments on this definition and adopts it
with minor editorial revisions for clarity.
Side-step ladder. This term means a type of fixed ladder that
requires a worker to step sideways from it to reach a walking-working
surface, such as a landing. The final definition is consistent with
ANSI A14.3-2008 (Section 3). In the final rule, OSHA revised the
proposed definition to emphasize that side-step ladders are a type of
fixed ladder (see final Sec. 1910.23(d)(4), (d)(6), and (d)(12)(ii)).
The final rule also clarifies that when a worker steps off a side-step
ladder onto a walking-working surface, it may be a landing or another
type of surface (e.g., roof). The proposed definition, on the other
hand, only mentions stepping onto a landing.
OSHA did not receive any comments on the proposed definition and
finalizes with the clarifications discussed above.
Spiral stairs. The final rule, similar to the proposal, defines
this term as a series of treads attached to a vertical pole in a
winding fashion that is usually within a cylindrical space. For
clarity, the Agency substituted the language ``stairway having a
helical (spiral) structure attached to a supporting pole'' in the
proposal with ``treads attached to
[[Page 82519]]
a vertical pole in a winding fashion within a cylindrical space.'' OSHA
drew the definition from the construction standards for stairways and
ladders (see Sec. 1926.1050(b)); it also is consistent with the
definition of the term in ANSI/ASSE A1264.1-2007 (Section 2.23).
Additionally, in the final rule, OSHA replaced the proposed term
``steps'' with ``treads.'' As noted above in the definition for rungs,
steps or cleats, in the final rule, OSHA clarifies that steps are a
component of ladders whereas treads are components of stairs.
Spiral stairs are not standard stairs within the meaning of this
section, and the final rule limits their use in general industry
workplaces (see final Sec. 1910.25(b)(8)). Employers generally use
spiral stairs generally in workplaces that have limited space.
OSHA did not receive any comments on the proposed definition and
adopts it as discussed above.
Stair rail or stair rail system. This term means a barrier erected
along the exposed or open side of stairways to prevent workers from
falling to a lower level. Stair rail and stair rail systems include,
but are not limited to, vertical, horizontal, or inclined rails;
grillwork or panels, and mesh. In addition, the top rail of a stair
rail system may serve as a handrail. The final definition is consistent
with the construction standards for stairways and ladders (see Sec.
1926.1050(b)). The ANSI/ASSE A1264.1-2007 (Section 2.6) standard
includes a definition covering ``guardrail/railing system/stair railing
system'' that is applicable to stairways, ramps, landings, portable
ladders, hatchway, manholes, and floor openings; the final definition
is generally consistent with this ANSI/ASSE standard.
The final definition eliminates ``vertical'' from the term barriers
in order to make the definition consistent with final Sec. 1910.29(f).
That provision does not require barriers to be vertical; for example,
barriers may be horizontal rails.
OSHA did not receive any comments on the proposed definitions and
adopts it with the revision discussed.
Stairway (stairs). The final rule defines stairway (stairs) as
risers and treads that connect one level with another. Stairways also
include any landings and platforms between those levels. In addition,
the final rule specifies that stairway includes standard, spiral, ship,
and alternating tread-type stairs.
The existing rule defines stairways as a series of steps leading
from one level or floor to another, or leading to platforms, pits,
boiler rooms, crossovers, or around machinery tanks and other equipment
that are used more or less continuously or routinely by employees, or
only occasionally by specific individuals. A series of steps and
landings having three or more risers constitutes stairs or stairway
(existing Sec. 1910.21(b)(8)). OSHA did not propose a definition of
stairway; however, the Agency decided to retain and revise the existing
definition.
The final definition revises the existing definition in several
ways. First, the final rule simplifies the definition considerably.
OSHA believes the term ``stairway'' (``stairs'') is commonly understood
and does not require a long explanation. Therefore, OSHA limits the
final definition to identifying the specific aspects of the stairways
the final rule covers.
Second, the final rule removes language in the existing definition
that limits stairways to stairs that have ``three or more risers''
(existing Sec. 1910.28(b)(8)). The proposed rule did not retain the
existing definition of stairway, which limited covered stairs to those
that have three or more risers. Including a definition in the final
rule clarifies the Agency's intent to cover stairways that have fewer
risers.
OSHA adopted the existing definition from national consensus
standards in effect in 1971 and those standards have been revised and
updated. In particular, the current versions of ANSI/ASSE A1264.1-2007
(Section E6.1) and IBC-2012 (Section 202) specify that a stair has one
or more risers. The revision makes the final rule consist with those
national consensus standards, which OSHA believes that most employers
already follow.
Finally, OSHA adds language to the final definition explaining that
stairways include standard, spiral, alternating tread-type, and ship
stairs (ship ladders). The existing rule did not include that language.
OSHA did not receive any comments about a definition for ``stairway
(stairs)'' and adopts the definition as discussed.
Standard stairs. The final rule, like the proposal, defines
standard stairs as stairways that are fixed or permanently installed.
In the preamble to the proposed rule OSHA explained that ``permanently
installed'' standard stairs are interchangeable with the term ``fixed''
standard stairs. To further clarify the definition, OSHA added this
concept.
Existing OSHA standards do not define ``standard stairs.'' The
ANSI/ASSE A1264.1-2007 (Section 6) standard uses the terms ``fixed
stairs'' and ``conventional stair designs,'' but does not define either
term.
Although ship stairs, spiral stairs, and alternating tread-type
stairs are fixed or permanently installed stairs, the final definition
specifies that they are not considered standard stairs under this
subpart.
OSHA did not receive any comments on the proposed definition and
finalizes it as discussed above.
Step bolt (pole step). This term means a bolt or rung attached at
intervals along a structural member and used for foot placement and as
a handhold when climbing or standing. The final definition, like the
proposal, also refers to step bolts as ``pole steps.'' Existing subpart
D does not specifically define or address step bolts.
OSHA did not receive any comments on the proposed definition and
adopts it as discussed.
Stepladder. This term means a self-supporting, portable ladder that
has a fixed height, flat steps, and a hinged back. The final definition
consolidates into one term the two existing definitions in existing
Sec. 1910.21(c)(2) and (d)(2). The final definition also simplifies
the proposed definition by incorporating plain language (fixed height)
in place of ``non-adjustable in length.''
OSHA did not receive any comments on the proposed definition and
adopts it with the clarification discussed above.
Stepstool. This term means a self-supporting, portable ladder that
has flat steps and side rails. Similar to the proposed definition, the
final rule defines the term ``stepstool'' to include only those ladders
that have a fixed height, do not have a pail shelf, and do not exceed
32 inches in overall height to the top cap, although the side rails may
extend above the top cap. The definition goes on to clarify that a
stepstool is designed so an employee can climb and stand on all of the
steps as well as the top cap. OSHA drew the definition from the
construction stairways and ladders standard (Sec. 1926.1050(b)), ANSI
A14.2-2007 (Section 4), and ANSI A14.5-2007 (Section 4), which are
similar. The final definition simplifies the proposed term by
incorporating plain language ``fixed height'' in place of ``non-
adjustable in length,'' and reorganizing the definition to make it
easier to understand.
OSHA did not receive any comments on the proposed definition and
finalizes it with the revisions discussed above.
Through ladder. The final rule, similar to the proposed rule,
defines a through ladder as a type of fixed ladder that allows workers
to step through the side rails at the top of the ladder to reach a
walking-working surface, such as a landing. The final definition is
[[Page 82520]]
consistent with the construction standards for stairways and ladders
(see Sec. 1926.1050(b)) and ANSI A14.3-2008 (Section 3).
The final definition clarifies the existing rule in Sec.
1910.21(e)(15) and the proposed rule by stating that, at the top of a
through ladder, a worker steps off the ladder onto a ``walking-working
surface,'' which may be a landing or another type of surface (e.g.,
roof); the existing and proposed rules specify stepping onto a landing
only.
OSHA did not receive any comments on the proposed definition and
adopts it with the clarification discussed above.
Tieback. Similar to the proposed definition, this term means an
attachment between an anchorage (e.g., structural member) and a
supporting device. The final definition adds language to the proposed
definition clarifying that supporting devices include, but are not
limited to, parapet clamps or cornice hooks.
According to the International Safety Equipment Association (ISEA),
manufacturers provide a number of choices for tieback applications,
such as tieback lines or lanyards, and tieback anchors (Ex. 185). ISEA
said manufacturers design tieback lanyards for wrapping around a
suitable anchor structure (e.g., a beam or structural member), and have
the advantage of eliminating a separate component for anchorage
connection. ISEA explained that employers typically use tieback
lanyards in personal fall arrest systems (Ex. 185).
ANSI/IWCA I-14.1-2001 (Sections 5.7.17, 17.4, and 17.6) notes that
the exclusive use of tieback anchors is with tieback lines, not
lifelines. The final rule requires that tieback lines and lifelines
have separate anchors.
Existing OSHA standards do not define ``tieback.'' OSHA drew the
definition from ANSI A10.8-2011, American National Standard for
Construction and Demolition Operations--Safety Requirements for
Scaffolding. OSHA believes that adding a definition for ``tieback''
clarifies the use of the term elsewhere in this subpart. Mr. Hoberg, of
DBM Consultants, stated clarification is necessary because various
parts of the country use the term differently, and that ``each area
swears adamantly that theirs is the right one and keeps trying to
change the other'' (Ex. 206).
The definition is finalized with the clarifying revisions noted
above.
Toeboard. The final rule, similar to the proposal, defines this
term as a low protective barrier that is designed to prevent materials,
tools, and equipment from falling to a lower level, and protect workers
from falling. Typically, employers erect toeboards on platforms,
dockboards, catwalks, gridirons, and other elevated or exposed floor
level edges. Toeboards, also are referred to as toeplates or
kickplates, and may be part of a guardrail system.
The final rule consolidates into one term the three definitions in
the existing rule in Sec. 1910.21(a)(9), (f)(31), and (g)(16), all of
which are consistent with the final definition. The final rule
clarifies that toeboards prevent tools, as well as materials and other
equipment, from falling on workers who may be below the elevated
walking-working surface.
Finally, and most importantly, OSHA clarifies expressly that
toeboards serve two purposes: Preventing materials, tools, and
equipment from falling on and injuring workers on a lower level; and
protecting workers from falling off elevated walking-working surfaces.
The final definition is consistent with OSHA's construction standard
for fall protection in Sec. 1926.500(b) and ANSI/ASSE A10.18-2012
(Section 2.18).
OSHA did not receive any comments on the proposed definition and
adopts it with the clarifications discussed above.
Travel restraint system. This definition is new in the final rule.
This system is a combination of an anchorage, an anchorage connector,
lanyard (or other means of connection), and body support that an
employer uses to eliminate the possibility of a worker going over the
edge of a walking-working surface.
OSHA drew the definition from final Sec. 1910.140(b). The
definition also is consistent with the definition in ANSI/ASSE Z359.0-
2012 (Section 2.204), and the definition of the term ``restraint
(tether) system'' in ANSI/ASSE A10.32-2012 (Sections 2.53).
OSHA did not receive any comments on the proposed definition in
Sec. 1910.140 and, therefore, adopts a definition as described above
for final subpart D. For further discussion about the definition of
``travel restraint system,'' see the preamble discussion for final
Sec. 1910.140.
Tread. The final rule, similar to the proposal rule, defines this
term as a horizontal member of a stair or stairway, but does not
include landings or platforms. OSHA added clarifying language in the
final rule, that landings and platforms, which are horizontal members
of stairways, are not considered treads.
The final definition revises the existing and proposed rules by
using ``stairways or stair'' in place of ``step.'' This revision
clarifies that treads describe horizontal members of stairways. In the
existing and proposed rules, treads and steps refer to horizontal
members of both ladders and stairways, which OSHA believes may cause
confusion. By limiting the term ``tread'' to stairways or stairs, and
the term ``step'' to ladders, the final rule should resolve any
potential confusion.
Treads are measured by their width (side to side) and depth (front
to back). OSHA notes that tread depth is measured horizontally between
the vertical planes of the foremost projection of adjacent treads, and
at a right angle to the tread's leading edge. This method of
measurement is consistent with the NFPA 101-2012 (Section 7.2.2.3.5)
and the IBC-2012 (Section 1009.7.2).
The final definition is consistent with ANSI/ASSE A1264.1-2007.1
(Section 2.26). OSHA did not receive any comments on the proposed
definition and adopts it as discussed.
Unprotected sides and edges. This term means any side or edge of a
walking-working surface, (except at entrances and other points of
access) where there is no wall, guardrail system, or stair rail system
to protect workers from falling to a lower level. The final definition,
which replaces the language ``open-sided floors, platforms, and
runways'' in the existing rule in Sec. 1910.23(c)(1), is consistent
with the definition of the term in OSHA construction standards (see
Sec. Sec. 1926.500(b) and 1926.1050(b)).
The final rule revises the proposed definition in two respects.
First, it states that a walking-working surface is unprotected if it
does not have a stair rail system, in addition to not having a wall or
guardrail system as specified in the proposed definition, to protect
workers from falling.
Second, OSHA deleted the height-specification language in the
proposed rule. This language is not necessary because final Sec.
1910.29, Fall protection systems and falling object protection--
criteria and practices, already addresses these height requirements.
OSHA did not receive any comments on the proposed definition and
finalizes it with the revisions discussed above.
Walking-working surface. The final rule, similar to the proposal,
defines this term as a horizontal or vertical surface on or through
which workers walk, work, or gain access to work areas or workplace
locations. Walking-working surfaces include floors, stairways, roofs,
ladders, runways, ramps, walkways, dockboards, aisles, platforms,
manhole steps, step bolts, equipment, trailers, and other surfaces. The
existing rule does not define ``walking-working
[[Page 82521]]
surfaces,'' but the final definition is similar to the definition for
``walking-working surface'' in the construction standard for fall
protection in Sec. 1926.500(b), ANSI/ASSE A10.18-2012 (Section 2.20),
and ANSI/ASSE A1264.1-2007 (Section 2.28). OSHA notes that, unlike the
construction standard for fall protection, the final definition does
not exclude ``ladders, vehicles, or trailers, on which employees must
be located in order to perform their job duties.''
The final rule makes two revisions to the proposed walking-working
surface definition. First, the final definition adds ``work area'' as a
location to which a worker may gain access. This revision means that
walking-working surfaces include those areas where employees perform
their job duties, as well as other locations in the workplace, such as
hallways and supply and change rooms. OSHA notes that, for some work
and occupations, including equipment service and repair, delivery of
materials and supplies, and landscaping, the ``work area'' may be at
various locations. OSHA believes that adding ``work area'' to the final
definition makes it clear what the term covers. The revision also makes
the final definition consistent with ANSI/ASSE A1264.1-2007 (Section
2.28).
Second, also consistent with ANSI/ASSE A1264.1-2007, the final rule
deletes the list of examples of walking-working surfaces from the
proposal. Accordingly, the regulated community is to broadly construe
the final definition of ``walking-working surface'' to cover any
surface on or through which employees walk, work, or gain access to a
work area or workplace location. Since the final definition does not
exclude any walking-working surface, OSHA does not believe that
identifying a partial list of surfaces the final rule covers is
helpful, necessary, or definitive.
OSHA received several comments addressing the scope of the
definition of ``walking-working surface,'' which it discusses above in
the preamble to Sec. 1910.21(a), Scope.
Warning line. This is a new definition OSHA added to the final
rule. The term describes a barrier that is erected on a roof to warn
workers they are approaching an unprotected side or edge, and which
designates an area in which work may take place without using other
means of fall protection. The warning line is a component of a
designated area, which is an alternative method for preventing falls
that the final rule allows employers to use to protect workers on low-
slope roofs (see final Sec. Sec. 1910.28(b)(13) and 1910.29(d)). A
warning line alerts workers that the space marked off by the line is an
area where they may work without conventional or additional fall
protection (e.g., guardrail, safety net, or personal fall protection
system).
Workers may enter the demarcated area only if the employer provides
them with the required fall hazard training (see final Sec. 1910.30)
and assigns them to work in the demarcated area. In large part, OSHA
drew the definition in the final rule from the definition of ``warning
line system'' in the construction standard for fall protection (see
Sec. 1926.500(b)).
Although the proposed rule used the term ``warning line,'' the
proposal did not define it. The final rule corrects this oversight. The
Agency believes it is important to define the term so that employers
and workers understand the new fall prevention method, and so employers
may comply with the new warning line requirements.
OSHA did not receive any comments and adopts the definition as
discussed above.
Well. Similar to existing Sec. 1910.21(e)(12) and the proposed
rule, this term means a permanent, complete enclosure around a fixed
ladder. A well surrounding a fixed ladder must provide sufficient
clearance to enable the employee to climb the ladder. The terms
``well'' and ``cage'' typically are used together because the
structures serve the same purpose, i.e., to enclose the climbing area
of a fixed ladder. In the event of a fall, wells and cages contain
workers within the enclosure and direct them to a lower landing (Ex.
198). ANSI A14.3-2008 (Section 3) also contains a similar definition.
The final rule deletes proposed language stating that ``proper
clearances for a well provide the person climbing the ladder the same
protection as a cage'' to prevent employers and workers from mistakenly
believing that wells and cages provide fall protection. Information in
the record indicates that wells and cages do not protect workers from
falling (see, e.g., Ex. 198); as a result, the final rule in Sec.
1910.28(b)(9) phases out their use as fall protection systems.
OSHA did not receive any comments on the proposed definition and
adopts the term with the revision discussed above.
Other issues. Two commenters suggested that OSHA include additional
definitions in the final rule. First, Nigel Ellis recommended that OSHA
add a definition for the term ``cover'' to the final rule, stating:
The word Cover is not presently defined as to adequacy and
walkability in the May 2010 standard proposal. A cover may be a
plywood board or perhaps OSB or temporarily and more dangerously a
section of drywall to keep out dust and weakens when wet. The new to
America Platform Nets should be accommodated for maintenance work to
allow walkable fabric covers to be used for walking across holes and
open spaces.
* * * * *
The term cover should be defined on a structural level
applicable to any unit skylight, including plastic, light
transmitting pane and smoke vent and where it is either a board,
fabric, fall protection net, walkable net, skylight with structural
members impervious to the effects of UV sunlight, screen, grill and
should be tested for impacts with humans (Ex. 155).
OSHA believes employers understand the meaning of cover; therefore,
it is not necessary to add a definition to the final rule.
Second, Mercer ORC requested that OSHA define the term ``chain
gate'' and identify how it differs from the term ``swinging gate'' (Ex.
254). The reference to chain gate in proposed Sec. 1910.29(b)(10) was
a typographical error that inadvertently omitted the comma between
chain and gate. Given that, there is no need to add a definition for
either chain gate or swinging gate.
Section 1910.22--General Requirements
Final Sec. 1910.22 revises and updates the existing requirements
that apply to surfaces in general industry. These provisions address:
Surface conditions and housekeeping (paragraph (a));
Application of loads on walking-working surfaces
(paragraph (b));
Access to and egress from walking-working surfaces
(paragraph (c)); and
Inspection, maintenance, and repair of walking-working
surfaces (paragraph (d)).
In general, the final rule revises the existing requirements in
several ways. First, final Sec. 1910.22, as well as all other sections
of final subpart D, uses the term ``walking-working surface.'' Final
Sec. 1910.21(b) defines walking-working surface as any horizontal or
vertical surface on or through which an employee walks, works, or gains
access to a workplace location. Walking-working surfaces include, but
are not limited to, floors, stairways, roofs, ladders, runways,
walkways, dockboards, aisles, and step bolts.
In final Sec. 1910.22, as in other sections of final subpart D,
OSHA revised the existing language so it is performance-based and
easier to understand, consistent with the OSH Act (29 U.S.C.
655(b)(5)), and the Plain Language Act of 2010 (Pub. L. 111-274; see
also E.O. 13568 (1/18/2011)), respectively. OSHA
[[Page 82522]]
believes the revised language provides greater flexibility for
employers, and makes it easier for them to comply with the final rule.
OSHA also moved or deleted provisions in existing Sec. 1910.22
that address specific issues or hazards rather than general conditions.
For example, OSHA moved the existing guardrail and covers requirements
(existing Sec. 1910.22(c)) to final Sec. Sec. 1910.28 (Duty to have
fall protection), and 1910.29 (Fall protection systems criteria and
practices). OSHA believes that the existing provision, which addresses
two specific types of fall protection measures, is more appropriately
grouped with the other fall protection measures. In addition, OSHA
deleted the requirements on mechanical-handling equipment in existing
paragraph (b) because Sec. 1910.176(a) addresses that issue.
Paragraph (a)--Walking-Working Surfaces
Final paragraph (a), like the existing and proposed rules, contains
general requirements on housekeeping and walking-working surface
conditions. Pursuant to section 6(a) of the OSH Act (29 U.S.C. 655(a)),
OSHA adopted most of the requirements in existing paragraph (a) from
the ANSI standard in effect in the early 1970s (ANSI Z4.1-1968,
Requirement for Sanitation in Places of Employment (Z4.1-1968)).
Although ANSI updated the Z4.1 standard several times since 1968 (see
ANSI Z4.1-1986 (R2005) (Z4.1-R2005)), OSHA did not update the
requirements until this rulemaking.
Final paragraph (a)(1), consistent with the existing and proposed
rules, requires that employers ensure surfaces are kept in a clean,
orderly, and sanitary condition in ``[a]ll places of employment,
passageways, storerooms, service rooms, and walking-working surfaces.''
Final paragraph (a)(1) also is consistent with Z4.1-R2005 (Section
3.1.1). OSHA adds the term ``walking-working surfaces'' to the
provision to eliminate any confusion about the surfaces the final rule
is intended to cover.
In the preamble to the proposed rule, OSHA explained its
longstanding position that Sec. 1910.22(a), especially Sec.
1910.22(a)(1), covers hazards other than slips, trips, and falls, and
includes fire and explosion resulting from combustible dust
accumulations (see 75 FR 28874). Prior court decisions uphold OSHA's
interpretation, saying ``the housekeeping [Sec. 1910.22(a)] standard
is not limited to tripping and falling hazards, but may be applied to
significant accumulation of combustible dust'' (Con Agra, Inc. v.
Occupational Safety and Health Review Commission, 672 F.2d 699, 702
(8th Cir. 1982), citing Bunge Corp. v. Secretary of Labor, 638 F.2d
831, 834 (5th Cir. 1981)). In Pratt & Whitney Aircraft (9 O.S.H. Cas.
(BNA) 1653, 1981 O.S.H.D. (CCH) P 25359, 1981 WL 18894 (O.S.H.R.C.),
the Occupational Safety and Health Review Commission (Review
Commission) reached the same conclusion on a converse set of facts.
Pratt & Whitney argued that Sec. 1910.22(a)(1) only covered
``sanitation and the prevention of disease,'' not trip hazards. The
Review Commission rejected that argument, saying the standard's
requirement that employers keep places of employment ``in a sanitary
condition'' is ``in addition to the requirement that workplaces be
`clean and orderly,' thus demonstrating that the standard is directed
not merely to sanitation but to all hazards arising from poor
housekeeping, including tripping hazards.'' (See also, Farmer's Co-op,
1982 WL 2222661 (O.S.H.R.C.); CTA Acoustics (KY 2003), CSB Report No.
2003-09-I-KY (February 2005); Hayes Lemmerz International (Indiana
2003), CSB Report No. 2004-01-I-IN (September 2005).)
As these cases show, Sec. 1910.22(a)(1) serves as an important
enforcement tool for preventing hazardous combustible dust
accumulations on walking-working surfaces. Moreover, in essentially
every document addressing combustible dust that OSHA released since
Bunge, the Agency affirmed that its combustible dust enforcement
strategy includes citing housekeeping violations (i.e., failure to
control combustible dust accumulations) under Sec. 1910.22(a)(1). (See
e.g., ``Combustible Dust in Industry: Preventing and Mitigating the
Effects of Fire and Explosion,'' OSHA Safety and Health Information
Bulletin (SHIB) 07-31-2005, (2005, July 31) \13\; ``Hazard Alert:
Combustible Dust Explosions,'' OSHA Fact Sheet (March 2008) \14\; OSHA
Compliance Directive CPL-03-00-008, ``Combustible Dust National
Emphasis Program,'' (March 11, 2008) (replacing CPL 03-00-006,
``Combustible Dust National Emphasis Program,'' October 18, 2007) \15\;
and ``Status Report on Combustible Dust National Emphasis Program,''
(October 2009)).\16\
---------------------------------------------------------------------------
\13\ Combustible Dust in Industry: Preventing and Mitigating the
Effects of Fire and Explosion available from OSHA's Web site at:
http://www.osha.gov/dts/shib/shib073105.html.
\14\ Hazard Alert: Combustible Dust Explosions available from
OSHA's Web site at: http://www.osha.gov/OshDoc/data_General_Facts/OSHAcombustibledust.pdf.
\15\ Combustible Dust National Emphasis Program available from
OSHA's Web site at: http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=DIRECTIVES&p_id=3830.
\16\ Status Report on Combustible Dust National Emphasis Program
available from OSHA's Web site at: http://www.osha.gov/dep/combustible_dust/combustible_dust_nep_rpt_102009.html.
---------------------------------------------------------------------------
In the proposed rule, OSHA requested comment on whether the Agency
should include a specific reference to combustible dust or other types
of dust or materials in final Sec. 1910.22(a) to clarify explicitly
that the provision does, and will continue to, cover combustible dust
hazards. OSHA received many comments. Two commenters, United Food and
Commercial Workers (UFCW) (Ex. 159) and the American Federation of
Labor and Congress of Industrial Organizations (AFL-CIO) (Exs. 172; 329
(1/20/2011, p. 219); 363) supported including a specific reference in
both final Sec. 1910.22(a)(1) and (a)(2). Bill Kojola of the AFL-CIO
said: ``While agency interpretations to include combustible dust have
proven useful to address this hazard, we believe an explicit
referencing of combustible dust within each of these paragraphs is
necessary to * * * let employers know with explicit certainty that
combustible dust is covered by these provisions'' (Ex. 172). UFCW,
which said it represents food plants, including sugar, corn, flour-
milling, and cocoa plants, explained: ``The food dusts in these plants
can be combustible. Housekeeping--keeping combustible dust from
accumulating on floors and other surfaces and keeping surfaces as free
from dust as possible--is a critical aspect to mitigating and
preventing combustible dust explosions'' (Ex. 159).
However, most commenters, for various reasons, opposed including a
specific reference to combustible dust in final Sec. 1910.22(a) (Exs.
73; 96; 124; 148; 158; 166; 173; 186; 189; 190; 202; 207; 254). First,
many commenters seemed to think that existing Sec. 1910.22(a)(1) does
not cover combustible dust, and that OSHA is aiming to add it to the
final rule as part of this rulemaking (Exs. 73; 96; 124; 148; 158; 166;
202). For example, several commenters said that Sec. 1910.22(a) and
this rulemaking focus, and should focus, on preventing slips, trips,
and falls, which is not the primary hazard of combustible dust (Exs.
73; 96; 124; 158; 166; 190; 207; 254). The United States Beet Sugar
Association (USBSA) and National Grain and Feed Association (NGFA),
citing a 1978 OSHA Memorandum, also argued that OSHA is uncertain
whether Sec. 1910.22(a) applies to combustible dust because the Agency
instructed its compliance officers to cite Sec. 1910.22(a)(1) and
[[Page 82523]]
Section 5(a)(1) of the OSH Act, in the alternative, for grain-dust
accumulations (Exs. 148; 166).
These commenters are mistaken. As described in detail above, OSHA
has for more than 30 years interpreted Sec. 1910.22(a)(1) as applying
to combustible dust hazards, and the courts have upheld this
interpretation. In the 2009 ``Status Report on Combustible Dust
National Emphasis Program,'' OSHA noted that housekeeping violations
(Sec. 1910.22(a)(1)) accounted for 20 percent of the violations
involving combustible dust, second only to hazard communication
violations. In the Advance Notice of Proposed Rulemaking on combustible
dust, OSHA also stated that existing Sec. 1910.22(a) covers
``accumulation of dust, including dust that may be combustible'' (74 FR
54334, 54335 (October 21, 2009)). Therefore, regardless of whether OSHA
includes a specific reference to combustible dust in final Sec.
1910.22(a)(1), OSHA's enforcement policy remains the same.
With regard to USBSA's and NGFA's ``uncertainty'' argument, the
1978 memorandum they cite has not been OSHA's policy since 1981, when
the courts and the Review Commission upheld OSHA's interpretation that
Sec. 1910.22(a)(1) covers combustible dust.
Second, a number of commenters cited OSHA's ongoing combustible
dust rulemaking as a reason why the Agency should not reference
combustible dust in final Sec. 1910.22(a)(1) (Exs. 73; 96; 124; 158;
189; 190; 202; 207; 254). The National Federation of Independent
Business (NFIB) said that including a reference to combustible dust in
final Sec. 1910.22(a) would ``create confusion for small businesses
when the combustible dust rule is finalized'' (Ex. 173). The Small
Business Administration Office of Advocacy (SBA Advocacy) said that
Sec. 1910.22(a) is so vague that ``it would undo any specificity in
any forthcoming combustible dust standard'' (Ex. 124). USBSA agreed,
stating that including a reference to combustible dust in Sec.
1910.22(a)(1) ``would significantly undermine the usefulness of a
combustible dust rule'' and ``would swallow up and nullify whatever
specificity is provided by a comprehensive combustible dust standard''
(Ex. 166).
The National Cotton Ginners' Association (NCGA), the Texas Cotton
Ginners Association (TCGA), and American Feed Industry Association
(AFIA) said including combustible dust in Sec. 1910.22(a)(1) would be
``redundant and possibly conflicting'' when OSHA ``re-regulate[s] these
same dusts in the future under the combustible dust rule'' (Exs. 73;
96; 158).
OSHA believes these arguments are premature since OSHA's Spring
2016 Unified Agenda of Regulatory and Deregulatory Actions (Reg Agenda)
states that combustible dust is in the Prerule Stage.\17\ However, as
OSHA proceeds with a rulemaking on combustible dust, the Agency will
evaluate carefully the relationship between Sec. 1910.22(a)(1) and a
combustible dust rule to avoid any conflicts.
---------------------------------------------------------------------------
\17\ See OSHA's Spring 2016 Reg Agenda on Combustible Dust at:
http://www.reginfo.gov/public/do/eAgendaViewRule?pubId=201604&RIN=1218-AC41.
---------------------------------------------------------------------------
Third, on a related issue, some commenters contend that OSHA must
regulate combustible dust in a separate rulemaking. The United States
Chamber of Commerce (USCC) said a separate rulemaking is necessary
because combustible dust is a complex, multi-variable hazard that is
``not amenable to a simple characterization'' and does not have a
consensus definition: ``Merely telling employers that the walking/
working surfaces are not to have a level of dust that would be
combustible gives them no guidance, serves no workplace safety purpose,
and will only lead to OSHA having another source for citations'' (Ex.
202).
USBSA said a separate standard was necessary because Sec.
1910.22(a)(1) and (2) do not address issues such as ``[h]ow much
[combustible dust] is too much?''; ``[w]hat must an employer do at what
dust level?''; and ``[s]hould all combustible dusts be treated the
same?'' (Ex. 166).
NFIB also said a separate rulemaking on combustible dust is
necessary because OSHA ``does not understand the implications of [final
Sec. 1910.22(a)(1)] on small businesses'' (Ex. 173). NFIB said that
OSHA incorrectly certified in the proposed rule that the rulemaking
would not have a significant economic impact on small businesses,
thereby avoiding the requirement to convene a Small Business Advisory
Review (SBAR) panel. As a result, NFIB said OSHA underestimated the
proposed compliance costs, and that regulating combustible dust in a
separate rulemaking would allow OSHA to hear from a SBAR panel and
``fully grasp the burden'' that a combustible dust rule will impose on
small business (Ex. 173).
OSHA disagrees with the commenters. As noted above, for more than
30 years, OSHA has used Sec. 1910.22(a)(1) as an effective enforcement
tool in general industry establishments of all sizes to address fire
and explosion hazards related to combustible dust accumulations. This
earlier discussion also mentioned that the 2009 Status Report on the
Combustible Dust NEP determined that 20 percent of all combustible
dust-related violations pertained to housekeeping (Sec.
1910.22(a)(1)). This history indicates that combustible dust is not too
complex to enforce under existing rules.
With regard to NFIB's contention that the proposed rule
underestimated compliance costs, OSHA points out that Sec.
1910.22(a)(1) already covers combustible dust. Accordingly, in the
proposed economic analysis, OSHA did not have to include any costs for
the combustible dust requirement or any other existing applicable
requirement.
Fourth, some commenters said including a reference to combustible
dust in final Sec. 1910.22(a)(1) is invalid because the national
consensus standard (ANSI Z4.1-1968) from which OSHA adopted Sec.
1910.22(a)(1), pursuant to section 6(a) of the OSH Act, applied only to
``sanitation'' and sanitary conditions (i.e., ``the physical condition
of working quarters which will tend to prevent the incidence and spread
of disease'' (ANSI Z4.1-1968 (Section 2)) and, therefore, did not apply
to combustible dust (Exs. 124; 166; 190). USBSA pointed out that a
statement in ANSI Z4.1-1968 described the purpose of the standard as
follows: ``The purpose of this standard is to prescribe minimum
sanitary requirements for the protection of the health of employees in
establishments covered by this standard'' (ANSI Z4.1-1968 (Section
1.2)). USBSA contends that OSHA's omission of this ANSI purpose
statement was ``unlawful'' (Ex. 166). As such, USBSA maintains that
OSHA is bound by the scope and purpose of the 1968 ANSI standard, and
the only permissible way OSHA could add combustible dust to Sec.
1910.22(a)(1) was by notice-and-comment rulemaking. To bolster its
argument, USBSA also includes in its comments a declaration from
William Carroll, Executive Director of the Portable Sanitation
Association International, which was the sponsoring organization for
ANSI Z4.1-1968; Mr. Carrol stated that ANSI did not develop Z4.1-1968
to cover fire and explosion from combustible dust.
OSHA does not agree with USBSA's arguments. Under section 6(a),
OSHA ``is not bound to adopt all provisions of national consensus
standards,'' and that not adopting the scope and purpose provisions
``[does] not constitute impermissible modification'' of the
requirements of a national consensus
[[Page 82524]]
standard (Secretary of Labor v. C.R. Burnett and Sons, 9 O.S.H. Cas.
(BNA) (O.S.H.R.C. (October 31, 1980) (the Review Commission rejected
the employer's argument that OSHA was bound by the scope of another
ANSI sanitation standard (ANSI Z4.4-1968, Sanitation--In Fields and
Temporary Labor Camps--Minimum Requirements) adopted pursuant to
section 6(a)).
Accepting USBSA's position that Sec. 1910.22(a)(1) only addresses
sanitation hazards would mean that OSHA could not use Sec.
1910.22(a)(1) to cite slip, trip, and fall hazards because they are not
sanitation hazards. USBSA does not mention that incongruous outcome in
its comments, but instead selectively addresses a specific hazard it
does not want OSHA to cite under the final rule.
However, previous decisions by the Review Commission and courts of
appeal broadly construe Sec. 1910.22(a)(1) (Whirlpool Corp. v.
Marshall, 445 U.S. 1, 13, 100 S.Ct. 883, 891, 63 L.Ed.2d 154 (1980)
(``To promote this remedial purpose of the statute, the Act and
regulations must be liberally construed so as to afford workers the
broadest possible protection''); National Eng'g & Contracting Co. v.
OSHA, 928 F.2d 762, 767 (6th Cir. 1991)). In Bunge (638 F.2d at 834),
the court opined: ``The type of hazard . . . is irrelevant to whether
some condition or practice constitutes a violation of [Sec.
1910.22(a)(1)]. Unless the general standard incorporates a hazard as a
violative element, the prescribed condition or practice is all that the
Secretary must show.''
In Whitney & Pratt Aircraft (1981 W-L 18894), the Review Commission
said:
We reject Pratt & Whitney's contention that the scope of [Sec.
1910.22(a)(1)] is limited to disease prevention and does not
encompass tripping hazards. The standard's requirement that places
of employment be kept `in a sanitary condition' is in addition to
the requirement that workplaces be `clean and orderly', thus
demonstrating that the standard is directed not merely to sanitation
but to all hazards arising from poor housekeeping, including
tripping hazards.
OSHA notes that, contrary to Mr. Carroll's declaration, ANSI Z4.1-
1968, on its face, covers hazards other than sanitation hazards. The
standard contains several provisions that do not relate to sanitation,
including lighting; keeping workplaces in an orderly condition; and
maintaining workplaces free from protruding nails, holes, and loose
boards.
Fifth, NGFA (Ex. 148) and AFIA (Ex. 158) recommended that OSHA not
include a reference to combustible dust in Sec. 1910.22(a)(1) because
it would subject their industry to ``duplicative and unnecessary
requirements'' that OSHA's Grain Handling Facilities standard (Sec.
1910.272) already addresses and, therefore, would cause confusion. They
said Sec. 1910.272, along with section 5(a)(1) (29 U.S.C. 654(a)(1)),
is working effectively in controlling grain dust hazards, which
obviates the need for additional regulation.
AFIA pointed out that the number of fatalities from explosions
involving combustible dust declined dramatically in the industry since
1980 (Ex. 158). AFIA maintains that a number of factors contributed to
reducing the frequency and severity of these occurrences, including
widespread voluntary efforts by industry and trade organizations to
increase awareness, research into and implementation of new engineering
controls, employee training, and automation that reduces workforce
exposure to explosion hazards from combustible dust. Although the Grain
Handling Facilities standard issued by OSHA in 1987 (Sec. 1910.272)
may account for some of the reduction in explosions, notably grain-
mediated combustible-dust explosions, it was not in effect in the early
1980s, the initial explosion reduction timeframe AFIA cites. Only the
court and the Review Commission decisions affirming OSHA's
interpretation that Sec. 1910.22(a)(1) applies to combustible dust
hazards were in effect in 1981 and 1982. Given that, OSHA believes that
it is reasonable to infer that Sec. 1910.22(a)(1) contributed to
reducing the number of explosions and fires involving combustible dust
during the early 1980s. For all these reasons, OSHA continues to apply
Sec. 1910.22(a)(1) to grain-handling facilities.
Finally, USBSA explained that referencing combustible dust in Sec.
1910.22(a)(1) could conflict with Sec. Sec. 1910.307 (Electrical-
Hazardous (classified) locations) and 1910.178 (Powered industrial
trucks), stating:
[A]pplying those provisions with a reference to combustible dust
would undermine what little specificity already exists in the
current standards addressing combustible dust. For example, applying
them would significantly undermine the existing distinctions between
unclassified, Class II, Division 1, and Class II, Division 2, areas
in 29 C.F.R. 1910.307 and 1910.178, which specify where and under
what circumstances approved electrical equipment and forklift trucks
are required in dusty conditions. There is no point in specifying
what electrical equipment and forklift trucks are required under
dusty conditions if those conditions are illegal in the first place
under Sec. 1910.22(a) (Ex. 166).
In response, OSHA reiterates that Sec. 1910.22(a)(1) already
applies to combustible dust. Existing Sec. 1910.22(a) generally
addresses combustible dust hazards on walking-working surfaces, while
Sec. Sec. 1910.307 and 1910.178 address more specific combustible dust
hazards related to electric equipment and powered industrial trucks,
respectively, and OSHA finds no indication that they conflict with each
other. Moreover, the Agency has not experienced any conflicts enforcing
those requirements.
Final paragraph (a)(2), like the existing and proposed rules,
requires that employers ensure the floor of each workroom is maintained
in a clean and, to the extent feasible, in a dry condition. The final
rule is similar to OSHA's housekeeping requirements in its Shipyard
Employment standards (Sec. 1915.81(c)(3)) and Z4.1-R2005 (section
3.1.2). OSHA believes it is important for employers to maintain
walking-working surfaces in a clean and dry condition to protect
workers from possible injury from slips, trips, and falls and other
hazards.
Final paragraph (a)(2) also requires that employers take additional
action if they cannot keep workroom floors in a dry condition. OSHA
notes this provision only requires employers to take additional actions
when they are using ``wet processes.'' When wet processes are used, the
final rule requires that drainage is maintained and, to the extent
feasible, dry standing places are provided, such as false floors,
platforms, and mats. Final paragraph (a)(2) provides examples of
measures employers can use to provide workers with dry standing places,
such as false floors, platforms, and mats, but gives employers
flexibility to select other measures that are effective in providing
dry standing places. OSHA believes this provision is necessary to
protect workers from slips, trips, falls, and other hazards on wet
surfaces.
The American Meat Institute (AMI) commented on the proposed rule:
In the meat industry, as in several others, there is simply no
possible way to maintain floors in a ``dry condition'' in areas such
as slaughter departments, vat/bin washing rooms, during sanitation
operations, etc. And, providing false floors, mats, platforms, etc.,
though done where possible, is not practical in all areas. Stated
simply, there are many cases where floors in operating areas will be
``wet'' throughout the working shift. However, it should be
recognized that ``wet'' is a relative term; there is significant
difference between standing water of some depth as opposed to simply
damp surfaces (Ex. 110).
AMI recommended that the final rule make a distinction between wet
floors where there is standing water and floors that are ``continuously
damp'' because of periodic cleaning or rinsing, stating:
[[Page 82525]]
``We . . . submit that while wet floors may pose potentially unique and
specific hazards, damp floors typically pose minimal hazard and do not
require additional, specific regulation'' (Ex. 110). OSHA disagrees
with AMI's recommendation that the final rule should make a distinction
between working in ``standing water,'' which AMI defines as greater
than one inch deep, and working on wet surfaces. Accordingly, OSHA
believes that both working on wet surfaces and working in standing
water are hazardous and pose a risk of slips, trips, falls, or other
harm (e.g., electrocution, prolonged standing in water). Final
paragraph (a)(2) gives employers a great deal of flexibility to tailor
their control measures to the type of wet conditions present in the
particular workplace, thereby making it easier for employers to comply
with the requirement.
In the proposed rule, OSHA requested comment on whether final
paragraph (a)(2) should include a provision, similar to that in
Shipyard Employment (29 CFR 1915.81(c)(3)), requiring that, in wet
processes, employers provide appropriate waterproof footwear, such as
overboots, when it is not practicable to maintain drainage and dry
standing areas (75 FR 28874). OSHA received three comments in response
to this request, all of which opposed adding that provision to the
final rule. Edison Electric Institute (EEI) (Ex. 207) and the American
Wind Energy Association (AWEA) (Ex. 178) both said that employers
should determine whether a hazard exists that necessitates use of
personal protective equipment (PPE) and select the best method to
prevent slips, trips, and falls on wet surfaces. UFCW raised concerns
that allowing the use of PPE would cause employers to use PPE instead
of following the hierarchy of controls:
By specifically offering the employer the option of providing
PPE, OSHA will have the unintended effect of negating the original
requirement to eliminate the hazard or control it through
engineering controls. We have seen a similar unfortunate dynamic in
the implementation and enforcement of 1910.95(b)(1) which supposedly
allows the use of PPE only after the implementation of feasible
administrative and engineering controls. Our experience with the
noise standard has been that once excessive sound levels have been
determined, most employers embrace the use of hearing protection,
and the implementation of engineering controls is perfunctory or
ignored altogether (Ex. 159).
UFCW also noted, correctly, that it was not necessary for OSHA to
reference PPE in the final rule because, under Sec. 1910.132(a),
employers already must provide PPE for hazards that they cannot
eliminate or control by other methods (Ex. 159).
OSHA finds the commenters' arguments convincing and, therefore, did
not add the language in Sec. 1915.81(c)(3) to the final rule. In
particular, OSHA agrees with the concerns UFCW raised about the
hierarchy of controls, and reaffirms that employers must provide dry
standing places, and maintain drainage using engineering controls, to
the extent such controls are feasible.
Final paragraph (a)(3), which OSHA revised significantly from the
proposed rule, requires employers to ensure walking-working surfaces
are maintained free of hazards such as loose boards, corrosion, leaks,
spills, snow, ice, and sharp or protruding objects.
In general, OSHA revised the language in final paragraph (a)(3) to
more clearly and specifically reflect the type and nature of the
hazards the Agency intended to address in this provision. The revisions
serve two purposes. First, the revisions clarify that a major focus of
final subpart D is to protect workers from walking-working surface
hazards that could cause or exacerbate the severity of a slip, trip, or
fall. For example, if employers do not maintain walking-working
surfaces free of leaks, spills, and ice workers could slip and fall and
be seriously injured. Similarly, if unused tools (e.g., saws, shears),
materials (e.g., unused pallets, bailing wire), or solid waste or
debris (e.g., scrap metal) are left on surfaces where employees work or
walk, workers could be seriously hurt if they fell on any of those
objects. In addition, in some situations, corrosion may be so severe or
significant that it may weaken the walking-working surface to the point
that the surface can no longer support a worker, equipped with tools,
materials, and equipment, who walks or works on it.
Second, it emphasizes OSHA's longstanding position, supported by
the court decisions noted previously, that the scope of Sec. 1910.22,
and paragraph (a)(3) specifically, also covers walking-working surface
hazards other than slips, trips, and falls. For example, a nail
protruding from a wall may not cause a slip, trip, or fall, but could
cause a serious laceration or puncture wound if a worker walks into or
bumps into it. Similarly, if employers do not ensure the immediate
removal of caustic chemicals or substances spilled onto a walking-
working surface, workers may be at risk of adverse effects, such as
chemical burns, if they accidentally touch the substance.
The existing rule, which OSHA adopted from the Z4.1-1968 standard,
requires that employers, to facilitate cleaning, keep every floor,
working place, and passageway free from ``protruding nails, splinters,
holes, or loose boards.'' In the proposed rule, OSHA decided to revise
existing paragraph (a)(3) to emphasize that the examples of the hazards
listed can result in more than slips, trips, and falls, and are present
in more than cleaning operations. Therefore, OSHA replaced the existing
examples of specific hazards with performance-based language, stating,
``Employers must ensure that all surfaces are designed, constructed,
and maintained free of recognized hazards that can result in injury or
death to employees,'' and deleted the existing ``[t]o facilitate
cleaning'' language.
Many commenters opposed proposed paragraph (a)(3). Most argued that
the performance-based language ``free of recognized hazards'' was
vague, overly broad, and appeared to duplicate the General Duty Clause
of the OSH Act (Exs. 124; 150; 165; 173; 190; 196; 236). For example,
the Sheet Metal and Air Conditioning Contractors National Association
(SMACNA) said: ``[P]roposed section 1910.22(a)(3) . . . appears to be a
`General Duty Clause' specific to this standard . . . and does not
offer any logical means of compliance. . . . [T]he proposed requirement
is open-ended and provides very little guidance to address any
particular hazard'' (Ex. 165). The Mechanical Contractors Association
of America (MCAA) expressed similar concerns about the language and how
OSHA would enforce it:
[T]he general duty clause-like language proposed . . . as 29 CFR
1910.22(a)(3) would allow compliance officers to issue general duty
clause-like citations without having to meet the extensive and
elaborate criteria established by the agency for issuing general
duty clause citations. MCAA believes that this language would cause
confusion, dissention and controversy without enhancing worker
protection (Ex. 236).
The American Foundry Society (AFS) said the provision was ``so vague
and open-ended that it could leave employers vulnerable to OSHA
citations based on the subjective assessment of OSHA inspectors as to
what is acceptable,'' and would place ``an impossible obligation on
employers by short-circuiting the requirements'' of the General Duty
Clause (Ex. 190).
NFIB raised three concerns about proposed paragraph (a)(3). First,
NFIB pointed out that the proposed rule does not define ``recognized
hazards,'' saying ``[t]he term may have a different meaning to a small
business owner than it does to an OSHA inspector'' (Ex. 173).
[[Page 82526]]
Second, they said the proposed rule is ``impossible to meet'' and
``virtually meaningless for compliance purposes,'' noting:
This standard, as written, is so broad that it could be inferred
by an inspector or judge that if any injury occurs--for any reason--
the employer can be cited for failure to comply. The presumption is
that a small business owner should foresee all possibilities of
injuries, even in the most remote of circumstances (Ex. 173).
Finally, NFIB said the proposed requirement could result in a small
business being ``cited twice for the same violation--opening the
business up to excessive fines and penalties'' (Ex. 173).
According to SBA Office of Advocacy, small businesses attending
their forum on the proposed rule expressed concerns that OSHA would use
the proposed rule to impose a `` `de facto' Safety and Health Program
(S&HP) or Injury and Illness Prevention Program (I2P2) requirement on
employers'' (Ex. 124). Therefore, SBA Office of Advocacy and Associated
Builders and Contractors (ABC), who raised similar concerns,
recommended that OSHA clarify the regulatory language, as well as the
purpose of the requirement in the final rule (Exs. 124; 196).
The commenters raise valid concerns. The purpose of the proposed
requirement was not to codify the General Duty Clause as a standard or
reduce OSHA's burdens in proving a General Duty Clause violation.
Rather, as explained above, the purpose was to use performance-based
language to point out that failure to adequately clean and maintain
walking-working surfaces: (1) Can make slips, trips, and falls more
severe, and (2) can result in adverse effects other than slips, trips,
and falls (e.g., burns from exposure to corrosive materials). The
revised language in final paragraph (a)(3) ensures that stakeholders
understand that the final rule covers both types of hazards. Also,
adding specific examples, such as those in the existing rule, ensures
stakeholders that the final rule focuses on the types of hazards
associated with walking-working surfaces instead of all ``recognized
hazards that can result in injury or death'' as the proposed rule
specified. Therefore, the final rule stresses that employers'
housekeeping efforts must take into account walking-working surface
hazards other than simply those associated with slips, trips, and
falls.
Mr. Lankford recommended removing the design and construction
requirements in proposed paragraph (a)(3) because they would impose
``significant responsibility on employers'' in the many instances when
``[t]here is no connection between the designer/builder and the current
employer'' (Ex. 368). In the hearing, Mr. Lankford said OSHA should
allow employers to comply with the requirement by confirming that the
walking-working surfaces ``were built according to the standard or
local building code'' (Ex. 329 (1/20/2011, p. 297)). OSHA agrees, and
removed the design and construction requirements in final paragraph
(a)(3).
On a separate issue, Ellis Fall Safety Solutions suggested that
OSHA add a requirement to Sec. 1910.22(a) that walking-working
surfaces be ``walkable from a body space point of view,'' meaning an
employee in the 95th height percentile should be able to walk upright
without encountering head or other obstructions (Ex. 155). OSHA
believes the performance-based requirements in final paragraph (a)(3)
takes this issue into account in an effective way. Paragraph (a)(3)
requires that employers maintain walking-working surfaces free of
protruding objects that could harm workers, regardless whether the
worker is tall or large.
Michael Bell of Joneric Products, a footwear manufacturer, objected
to the scope of OSHA's benefits policy:
This Proposed Rule virtually ignores fatalities and injuries
that occur not from heights. There are some easy solutions to remedy
these fatalities and injuries.
1. Recognize that workers whose primary job is to wash, wax or
maintain floors are at high risk of slips and falls. There are
companies that manufacture specialized footwear for these
activities.
2. Recognize that many workers primarily work outdoors. Most of
them must work on Public Property. Even though OSHA has no authority
to tell a private citizen how to maintain their properties at least
admit that many injuries do occur outdoors and they are reportable
to OSHA.
3. Recognize that inclement weather is the cause of a good many
of these injuries.
4. Know that this is serious enough that many companies are
proactive in attempting to reduce these weather related injuries.
But, they do not make up for the companies that ignore the situation
because there is [sic] no OSHA regulations.
5. Companies have a wide range of products to choose from many
manufacturers (Ex. 77).
OSHA agrees with Mr. Bell's statement and notes that the provisions
in Sec. 1910.22(a)(1)-(3) address slips and falls to the same level.
In particular, OSHA notes that these final provisions will require
employers to control worker exposure to fall hazards on outdoor
surfaces.
Final Paragraph (b)--Loads
Final paragraph (b) requires that employers ensure each walking-
working surface can support the ``maximum intended load'' for that
surface. The final rule, like the proposal defines maximum intended
load as the total weight of all employees, equipment, machines,
vehicles, tools, materials, and loads that employers reasonably
anticipate they may be apply to that walking-working surface. The
existing rule includes a similar provision requiring that employers not
place on a floor or roof any load weighing more than the building
official has approved for the surface (existing Sec. 1910.22(d)(2)).
The construction fall protection standard also requires that employers
``determine if walking/working surfaces on which its employees are to
work have the strength and integrity to support employees safely'' and
only allow employees to work on surfaces that meet the requirement (29
CFR 1926.501(a)(2)).
Final paragraph (b), like the proposal, specifies that it covers
all walking-working surfaces; that is, ``any horizontal or vertical
surface on or through which an employee walks, works, or gains access
to a workplace location'' (see final Sec. 1910.21(b)). Accordingly,
employers must ensure that all walking-working surfaces, which include,
but are not limited to, floors, roofs, stairs, ladders, and ramps; can
support the maximum intended load. The existing rule specifies it
applies to ``any floor or roof'' of a building or other structure
(existing Sec. 1910.22(d)(2)). Final paragraph (b) also replaces the
specification requirements in existing Sec. 1910.22(d)(1) with
performance-based language. The existing rule specifies that the loads
the building official approves for a specific walking-working surface
``shall be marked on plates of approved design . . . and securely
affixed . . . in a conspicuous place in the space to which they
relate.''
In the proposed rule, OSHA said the existing specification
requirement was not necessary for two reasons: (1) Load-limit
information is available in building plans, and (2) engineers take
maximum loads into consideration when they design industrial surfaces.
OSHA proposed to replace the existing rule with provisions requiring
that employers ensure that walking-working surfaces are ``[d]esigned,
constructed, and maintained to support their maximum intended load''
(proposed paragraph (b)(1)), and ``[n]ot loaded beyond their maximum
intended load'' (proposed paragraph (b)(2)).
[[Page 82527]]
OSHA received three comments on the proposal. The first commenter,
AFSCME, recommended requiring that employers ensure all walking and
working surfaces have the ``structural integrity'' to support the
workers, their tools and equipment. OSHA believes that requiring
employers to ensure each surface is capable of supporting the maximum
intended load, as defined in final Sec. 1910.22(b), achieves the
result AFSCME advocates. The definition of ``maximum intended load'' in
final Sec. 1910.21(b) includes the total weight of all employees,
equipment, machines, vehicles, tools, materials, and loads that the
employer reasonably anticipates may be applied to the walking-working
surface.
The second commenter, Charles Lankford, objected to the proposed
requirement that employers ensure walking-working surfaces are
``designed and constructed'' to support their maximum intended load
(proposed paragraph (b)(1)):
[E]mployers will be unable in most cases to ensure positively
that existing or newly purchased walking and working surfaces were
``designed and constructed'' (perhaps decades earlier) to comply
with this standard.
Employers will for practical purposes be limited to relying on
third party certification, testing, listing, and/or labeling of
platforms and surfaces such as scaffold planks, floors of crane
cabs, runways, etc. However, OSHA did not state in the proposed rule
that reliance on third party certifications would be a method of
compliance or could be a valid defense from citations (Ex. 368; see
also Ex. 329 (1/20/2011, p. 295)).
OSHA disagrees with Mr. Lankford's contention. The existing rule
makes it easy for employers to know for certain whether a walking-
working surface on an existing building or structure can support the
maximum intended loads employers anticipate placing on that surface.
The existing rule requires that load limits for buildings and
structures used for mercantile, business, industrial, or storage
purposes: (1) Be approved by the building official; and (2) be posted
in the area of the walking-working surface (existing Sec.
1910.22(d)(1)). The existing rule also prohibits employers from putting
any load on a walking-working surface that exceeds the weight the
building official has approved. Under the final rule, employers can
readily obtain information about walking-working surfaces in those
buildings and structures from the plates required to be posted in
accordance with the existing rule. For new buildings and structures,
employers can obtain information on load limits from building plans,
local codes, and third party certification or conduct their own
evaluation.
Mr. Lankford is correct that the proposed rule, as well as the
final rule, does not state specifically how employers must obtain
information about load limits for a walking-working surface. However,
OSHA believes there are many ways employers can obtain such
information. Mr. Lankford provided examples of several methods
employers may use, including obtaining load limits from the plates
posted in the area; relying on third party certification; and testing
or evaluating walking-working surfaces. Instead of codifying the
methods Mr. Lankford mentioned, OSHA has used performance-based
language in the final rule to give employers greater flexibility in
selecting the method they want to use to identify whether the walking-
working surface can support the maximum intended load employers will
place on it.
Finally, the National Chimney Sweep Guild (NCSG) contended the
requirement that employers ensure each walking-working surface can
support the maximum intended load they will apply to it is not feasible
and, as proposed, go beyond what is reasonably necessary or appropriate
(Exs. 150; 240; 365; 329 (1/18/2011, p. 254-348)). First, NCSG said
that chimney sweeps are not able to determine the ``maximum intended
load'' \18\ for a roof:
---------------------------------------------------------------------------
\18\ NCSG is mistaken about the meaning and use of the term
``maximum intended load.'' The term refers to the maximum weight of
``all employees, equipment, tools, materials, transmitted loads, and
other loads'' the employer reasonably anticipates putting on a
walking-working surface, such as a roof. It does not mean the
maximum weight building codes require or the builder designed and
constructed a roof to tolerate, although the maximum intended load
employers place on the surface must not exceed that maximum load
limit for the surface.
The sweep would have no practical means of determining the
maximum intended load for a roof, and no way of determining whether
the roof was designed, constructed, and maintained to support the
unknown maximum intended load. Only when a job would require a
significant load on a roof or under other highly unusual
circumstances would a sweep attempt to access the attic below a roof
to check the structural integrity of the roof. We doubt most trades
would be able to determine whether a roof could safely support its
maximum intended load (as established by the builder and/or local
---------------------------------------------------------------------------
code) (Ex. 150).
The final rule, like the construction fall protection standard,
requires that employers are responsible for taking the steps necessary
to ensure that each walking-working surface employee's access has the
strength and structural integrity to safely support the maximum
intended load employers will place on the surface. NCSG agreed that
assessing hazards and inspecting roof surfaces is necessary before
workers step on roofs to perform chimney sweep work:
We recognize that the employer of a sweep must implement
reasonable measures designed to determine whether a roof or other
walking-working surface can be safely utilized by the employee to
perform the pre-assigned task and any additional tasks that may be
identified after the sweep arrives at the site (Ex. 150).
Where workers perform single-person jobs, which NCSG said are the
majority of jobs their members perform, employers are responsible for
ensuring that workers know how to assess and determine whether the
walking-working surface they will access will support the loads
reasonably anticipated to be placed on it. For example, employers must
ensure that their employees (e.g., chimney sweeps) know how to visually
inspect or examine the roof for possible damage, decay, and other
problems and look in attics to assess the strength and structural
integrity of the roof. Employers also must ensure that workers actually
do such visual assessments before they access a surface or perform a
job. Finally, if there is a potential problem with the roof or if
workers cannot determine whether the roof is safe for use, employers
must ensure that workers know they must not step onto the roof.
Although NCSG contends that it is infeasible for workers to determine
if roof will support the loads they will place on it, their comments
indicate that member companies and their workers already are doing
this:
Once we actually get to the job, we are making a hazard
assessment . . . of . . . electrical lines, the slope of the roof,
the condition of the roof, is there adequate places for our ladders,
can we safely access the roof with ladders, is the roof wet, ice
covered, snow covered, and ultimately we use all of that information
to formulate a go or no go roof decision, whether [we] are actually
going to access the roof (Ex. 329 (1/18/2011, p. 276-303)).
In addition, NCSG said member employers also periodically go to
jobs sites to discuss and observe workers performing tasks, further
indicating that assessments and determinations of the strength and
structural of roofs are being done (Ex. 150).
Finally, not only did NCSG say it is not feasible for its members
to comply with final paragraph (b), they also said:
We doubt most trades would be able to determine whether a roof
could safely support its maximum intended load (as established by
the builder and/or local code) (Ex. 150).
[[Page 82528]]
Since 1994, the current construction fall protection standard has
required employers performing construction activities to ``determine if
the walking-working surfaces on which its employees are to work have
the strength and structural integrity to support employees safely''
(Sec. 1926.501(a)(2)). According to NCSG, 20 percent of the work
chimney sweep companies perform are significant and major installations
and repairs and covered by the construction fall protection standard
(Ex. 150). These operations involve a substantial quantity of
equipment, tools and materials being used and placed on the roof. OSHA
has not received any reports that chimney sweep companies have
experienced difficulty assessing whether the roof has the ``strength
and structural integrity'' to support workers and the equipment,
materials, and tools they are using to make those installations and
repairs. Because the final rule is consistent with the construction
standard, OSHA believes NCSG members will not have difficulty visually
assessing whether the roof can support chimney cleaning, inspections,
and minor repair work, which do not require the quantities of
equipment, tools, and materials of substantial and major installations/
repair jobs. For these reasons, OSHA does not find NCSG's infeasibility
contention to be convincing.
Second, NCSG expressed concern that the final rule will require
member companies to hire ``a structural engineer or someone with
significant advanced training'' to make a ``technical determination''
that the walking-working surface has the necessary structural
integrity, and that it would be infeasible for small companies to have
a structural engineer or similar expert person on staff to assess the
walking-working surfaces at each worksite (Ex. 150).
The final rule, like the construction fall protection standard,
does not require that employers hire engineers or other experts to make
a technical determination about whether a walking-working surface has
the strength and structural integrity to support the maximum intended
load employers reasonably anticipate placing on that surface. OSHA
agrees with NCSG that employers may comply with final paragraph (b) by
making ``a visual examination of the condition of the roof and the rest
of the structure'' (Ex. 150). As OSHA discussed in the preamble to the
proposed rule, if conditions warrant or if employers cannot confirm
from the visual examination that the walking-working surface can
support the load they will place on it, OSHA believes employers need to
conduct a more involved or detailed inspection to ensure the surface is
safe for employees (75 FR 28888). OSHA does not believe NCSG members
will have difficulty complying with this requirement. NCSG said member
companies already conduct visual examinations and hazard assessments to
determine whether roofs can support the total load their workers will
place on them (Ex. 150). Moreover, NCSG said employers periodically
come to job sites to observe how workers are performing tasks, which
presumably include observing tasks such as hazard assessments and
visual examinations of roofs.
Final paragraph (c)--Access and Egress
Final paragraph (c), like the proposal, requires that employers
provide, and ensure that each worker uses, a safe means of access and
egress to and from walking-working surfaces. For purposes of the final
rule, the term ``safe'' means that no condition (for example, an
obstruction, lock, damage) could prevent or endanger a worker trying to
access or egress a walking-working surface. Thus, employers must ensure
that means of access and egress remain clear and in good repair so
workers can safely move about walking-working surfaces.
Final paragraph (c), like the proposal, replaces the specifications
in the existing rule (Sec. 1910.22(b)) with performance-based
language. The existing rule requires that aisles and passageways be
kept in good repair, with no obstructions across or in aisles that
could create a hazard. Where mechanical handling equipment is used, the
existing rule requires that sufficient safe clearances be allowed for
aisles, at loading docks, through doorways, and wherever turns or
passage must be made. The revision ensures that final paragraph (c)
applies to all walking-working surfaces the final rule covers, which
means that employers must provide safe access to and egress from ``any
horizontal or vertical surface on or through which an employee walks,
works, or gains access to a workplace location'' (final Sec.
1910.21(b)). Examples of walking-working surfaces that require safe
access and egress include floors, stairways, ladders, roofs, ramps, and
aisles. The final rule, by using the term ``walking-working surface,''
requires that employers ensure means of access and egress are safe
regardless of whether the walking-working surfaces are on the same or
different levels. The final rule also applies to both temporary and
permanent walking-working surfaces.
OSHA notes that the final rule does not retain the specification
language in existing Sec. 1910.22(b)(2) that requires appropriate
marking of ``permanent aisles and passageways.'' The performance-based
language in final paragraph (c) requires that an employer provide and
ensure workers use a safe means of access and egress to and from
walking-working surfaces. One way employers can meet the performance
language is by appropriately marking passageways and permanent aisles
as a means of identifying safe access and egress.
OSHA did not receive any comments on proposed paragraph (c) and
finalizes the proposed provision, as discussed, with minor editorial
changes for clarity.
Final paragraph (d)--Inspection, maintenance, and repair
Final paragraph (d), like the proposed rule, specifies general
inspection, maintenance, and repair requirements for walking-working
surfaces. Final paragraph (d)(1) requires that employers inspect and
maintain walking-working surfaces in a safe condition. OSHA believes
that inspecting walking-working surfaces is necessary to ensure they
are maintained in a safe condition. To ensure they are in a safe
condition, the final rule specifies that employers must inspect
walking-working surfaces both (1) regularly and (2) as necessary.
The term ``regular inspection'' means that the employer has some
type of schedule, formal or informal, for inspecting walking-working
surfaces that is adequate enough to identify hazards and address them
in a timely manner. The final rule uses a performance-based approach
instead of mandating a specific frequency for regular inspections. OSHA
believes that employers need to consider variables unique to each
workplace that may affect the appropriate frequency for workplace
inspections. Therefore, OSHA believes that employers are in the best
position to evaluate those variables and determine what inspection
frequency is adequate to identify and address hazards associated with
walking-working surfaces. Once employers make that determination, the
final rule requires that they conduct inspections of walking-working
surface according to that frequency.
Adding a general requirement in the final rule for regular
inspections of walking-working surfaces makes the rule consistent with
OSHA's construction standards. Section 1926.20(b)(2) requires employers
to have a program that ``provides for frequent and regular inspections
of job sites, materials, and equipment.''
In addition to regular inspections, final paragraph (d)(1) also
requires
[[Page 82529]]
employers to conduct inspections ``as necessary.'' For purposes of
final paragraph (d)(1), inspecting workplaces ``as necessary'' means
that employers must conduct inspections when particular workplace
conditions, circumstances, or events occur that warrant an additional
check of walking-working surfaces to ensure that they are safe for
workers to use (i.e., that the walking-working surface does not
increase the risk of a slip, trip, or fall). For example, an additional
inspection may be necessary to ensure that a significant leak or spill
did not create a slip, trip, or fall hazard on walking-working
surfaces. Similarly, employers may need to inspect outdoor workplaces
after a major storm to ensure that walking-working surfaces are free
from storm debris, downed power lines, and other related hazards.
The proposed rule specified that employers conduct ``periodic''
inspections, in addition to regular inspections. The purpose of the
proposed requirement to conduct periodic inspections was to address
specific workplace events, conditions, or situations that trigger slip,
trip, or fall hazards not addressed by regular inspections, which are
conducted at fixed times. However, OSHA believes that the language ``as
necessary'' more accurately describes the purpose of the proposed
requirement. Moreover, OSHA believes that the revised language
clarifies when employers need to check walking-working surfaces and,
thus, will enable employers to use their resources efficiently.
Therefore, OSHA specified in final paragraph (d)(1) that employers must
conduct inspections as necessary, in addition to regular inspections.
Accordingly, employers must check the workplace when events,
conditions, or situations arise that could put workers at risk of harm
due to slips, trips, or falls, regardless of whether the workplace is
due for a regular inspection. Thus, the final rule, as revised,
fulfills the interpretation given to paragraph (d) in the proposal,
that the employer ``ensure that inspections are conducted frequently
enough so that hazards are corrected in a timely manner'' (75 FR 28862,
28875).
AFSCME recommended that Sec. 1910.22 also require that employers
perform a hazard assessment (Ex. 226). OSHA believes that requiring
employers to inspect walking-working surfaces regularly and as
necessary enables employers to determine the hazards that are present
in those areas; therefore, additional language is not necessary.
NCSG objected to paragraph (d)(1)'s requirement that walking-
working surfaces be maintained in a ``safe'' condition as again
incorporating the General Duty Clause (Ex. 150). That is not OSHA's
intent, and the Agency incorporates its response to the that objection,
discussed in final paragraph (a)(3), here. The same hazards are
addressed by final paragraphs (a)(3) and (d)(1); (a)(3) requires that
the surface be maintained free of those hazards, while (d)(1) requires
inspection for and correction of those hazards when found.
Final paragraph (d)(2) requires that employers correct or repair
hazardous conditions on walking-working surfaces before allowing
workers to use those surfaces again. The final rule also requires that
if employers cannot fix the hazard immediately, they must guard the
hazard to prevent workers from using the walking-working surface until
they correct or repair it. Taking immediate corrective action or
guarding the hazard is important for the safety of workers; delaying
either action can put workers at risk of injury or death. OSHA notes
that corrective action may include removal of the hazard.
When employers cannot fix the hazard immediately and need to guard
the hazard area, the final rule gives employers flexibility in
selecting the type of guarding to use (e.g., erecting barricades,
demarcating no-entry zones). However, whatever method employers use,
they must ensure it is effective in preventing workers from accessing
or using the surface.
NCSG contended that proposed paragraph (d)(2) is a redundant
provision, since proposed paragraph (a)(3) would already contain
language requiring that walking-working surfaces be free of hazards
(Ex. 150).
OSHA disagrees. First, as discussed, OSHA revised final paragraph
(a)(3) so it more clearly identifies examples of walking-working
surface hazards that could cause slips, trips, and falls. For example,
if employers do not maintain walking-working surfaces free of leaks and
spills, workers could slip and fall and be seriously injured. Corrosion
can weaken walking-working surfaces and render them unable to support
loads placed on them. In addition, examples of walking-working surface
hazards incorporated in final paragraph (a)(3), stress that final Sec.
1910.22, like the existing rule, covers more than slip, trip, or fall
hazards.
Second, OSHA does not believe final paragraphs (a)(3) and (d)(2)
are redundant because they serve different purposes and objectives. The
purpose of final paragraph (a)(3) is to ensure employers have
procedures or programs in place to maintain walking-working surfaces so
workers are not exposed to hazards that may cause injuries such as
slips, trips, and falls. OSHA believes that if employers establish good
housekeeping and maintenance procedures and programs they can prevent
worker exposure to such hazards. However, even when employers establish
rigorous housekeeping and maintenance programs, hazardous conditions
may still arise. When they occur, final paragraph (d)(2) specifies what
employers must do to correct or repair those hazards before they allow
workers to use the surface.
Final paragraph (d)(3) requires that when any correction or repair
involves the structural integrity of the walking-working surface, a
qualified person must perform or supervise that correction or repair.
For purposes of the final rule, OSHA defines a qualified person as ``a
person who, by possession of a recognized degree, certificate, or
professional standing, or who by extensive knowledge, training, and
experience has successfully demonstrated the ability to solve or
resolve problems relating to the subject matter, the work, or the
project'' (see Sec. 1910.21(b)). The definition in the final rule is
the same as other OSHA standards (e.g., Sec. Sec. 1910.66, appendix C,
Section I; 1910.269; 1915.35; 1926.32(l)).
Structural integrity generally addresses a structure's
uncompromised ability to safely resist the loads placed on it.
Deficiencies in the structural integrity of a walking-working surface
can be extremely hazardous. OSHA believes corrections and repairs
involving the structural integrity of a walking-working surface require
the skill of a qualified person to ensure that affected surfaces are
safe during and after repair or correction.
OSHA received three comments that raised concerns about the
requirement in proposed paragraph (d)(3). Steven Smith of Verallia
stated:
The duty to inspect, to guard, or take out of use certain areas,
and to require `qualified persons' be present for all repairs is
duplicative of other OSHA requirements and adds additional layers of
procedure and cost to employers that are unduly burdensome and
unnecessary (Ex. 171).
Robert Miller of Ameren Corporation said:
Oft times repairs to facility equipment is performed by
contractors and their employees or supervisors would be considered
qualified. As [paragraph (d)(3)] reads, this may be interpreted to
mean that the employer is responsible to staff qualified employees
for all structural repairs to walking and working surfaces. Clarity
of expectations needs to be taken into consideration in the final
version (Ex. 189).
[[Page 82530]]
Charles Lankford commented:
I believe it is excessive to ask of someone assigned to sand or
scrape excessive rust off the metal treads of stairways and then
paint them, to possess a degree or demonstrated `extensive knowledge
training, and experience' . . . . The more appropriate option here
would be to require a qualified person for those applications where
he/she is specifically required, and allow for a `competent' person
to apply his/her competency for the broad scope of tasks which he/
she is well-suited to perform (Ex. 368).
OSHA believes the commenters have misinterpreted proposed paragraph
(d)(3) as requiring qualified persons to conduct all correction and
repair tasks. To the contrary, final paragraph (d)(3) is narrowly
drawn. The final rule only requires that a qualified person perform or
supervise the correction or repair of a walking-working surface if the
correction or repair affects the structural integrity of the walking-
working surface. If the correction or repair task does not rise to that
level, the final rule does not require the employer to have a qualified
person perform or supervise the task. Thus, using Mr. Lankford's
example, final paragraph (d)(3) does not require employers to have a
qualified person, as defined in this rule, perform or supervise sanding
or scraping rust off of stairway treads. However, for example, a
qualified person may have to perform or supervise welding a broken rung
on a metal ladder.
To ensure that employers clearly understand the limited scope of
final paragraph (d)(3), OSHA revised and reorganized the provision. For
example, OSHA revised the language in the final rule to clarify that it
only applies to repairs and corrections that affect the structural
integrity of a walking-working surface, and not to the general
maintenance of walking-working surfaces.
Mr. Smith generally commented that the requirements in proposed
paragraph (d) were subjective and vague; however, he did not provide
any explanation or examples to substantiate these comments (Ex. 171).
OSHA disagrees with these comments. Pursuant to the OSH Act (29 U.S.C.
655(b)(5)), OSHA used performance-oriented language in paragraph (d) to
provide employers with greater flexibility in complying with the
requirements. As discussed above, OSHA also revised the language in
paragraph (d) to provide greater clarity. In addition, this preamble
explains in detail what employers must do to comply with the
inspection, maintenance, and repair requirements in final paragraph
(d).
Section 1910.23--Ladders
Final Sec. 1910.23 revises and consolidates into one section the
existing ladder requirements in Sec. Sec. 1910.25 (Portable wooden
ladders), 1910.26 (Portable metal ladders), 1910.27 (Fixed ladders),
and 1910.29 (Mobile ladder stands and scaffolds (tower)). The final
rule retains many of the existing requirements because OSHA believes
they continue to provide an appropriate level of worker safety.
The final rule also updates and revises the existing OSHA general
industry ladder rules to increase safety, clarity, consistency, and
flexibility. To illustrate, the final rule revises the existing ladder
requirements to make them consistent with OSHA's construction ladder
standard (29 CFR 1926.1053). This action will make compliance easier
for employers engaged in both general industry and construction
operations.
Similarly, the final rule updates existing ladder requirements to
make them consistent with current national consensus standards
addressing ladders, including:
American National Standards Institute (ANSI) A14.1-2007,
American National Standard for Ladders--Wooden--Safety Requirements
(A14.1-2007) (Ex. 376);
ANSI A14.2-2007, American National Standard for Ladders--
Portable Metal--Safety Requirements (A14.2-2007) (Ex. 377);
ANSI A14.3-2008, American National Standard for Ladders--
Fixed--Safety Requirements (A14.3-2008) (Ex. 378);
ANSI A14.5-2007, American National Standard for Ladders--
Portable Reinforced Plastic--Safety Requirements (A14.5-2007) (Ex.
391); and
ANSI A14.7-2011, American National Standard for Mobile
Ladder Stands and Mobile Ladder Stand Platforms (A14.7-2011) (Ex. 379).
Throughout the summary and explanation of final Sec. 1910.23, OSHA
identifies which provisions are consistent with these national
consensus standards. OSHA believes this is important because national
consensus standards represent accepted industry practices, and thus are
technologically and economically feasible. Moreover, since most of
those national consensus standards have been in place for years, OSHA
believes that virtually all ladders this section covers that are
manufactured today meet the requirements in those standards. As such,
employers should not have problems complying with the requirements in
the final rule that OSHA drew from those standards.
OSHA notes that final Sec. 1910.23 incorporates a number of
revisions to make the final rule easier for employers and workers to
understand and follow. First, as mentioned, OSHA has consolidated all
of the general industry ladder provisions into this section. Second,
within this section, OSHA has consolidated into a single paragraph the
general requirements that are common to, and apply to, all types of
ladders. These revisions eliminate unnecessary repetition, and make the
section easier to follow. The organization of the consolidated final
ladder requirements is:
Paragraph (a) Application--This paragraph specifies the
types of ladders the final rule covers or exempts;
Paragraph (b) General requirements for all ladders--This
paragraph specifies the requirements that are common to, and apply to,
all types of ladders the final rule covers;
Paragraph (c) Portable ladders--This paragraph specifies
the requirements that apply to portable ladders, including wood, metal,
and fiberglass or composite material portable ladders;
Paragraph (d) Fixed ladders--This paragraph covers the
provisions that apply to fixed ladders, including individual-rung
ladders; and
Paragraph (e) Mobile ladder stands and mobile ladder stand
platforms--This paragraph updates existing OSHA requirements for mobile
ladder stands, and adds requirements for mobile ladder stand platforms.
Third, in the final rule OSHA revises existing provisions to make
them performance-based, whenever appropriate. Performance-based
language gives employers maximum flexibility to comply with the
requirements in the final rule by using the measures that best fit the
individual workplace.
Finally, when possible, OSHA drafted final Sec. 1910.23 in plain
language, which also makes the final rule easier to understand than the
existing rules. For example, the final rule uses the term ``access''
instead of ``access and egress,'' which OSHA used in the existing and
proposed rules. OSHA believes this revision makes the final rule easier
to understand than the existing and proposed rules. Moreover, using
``access'' alone eliminates potential confusion since the term
``egress'' is often linked, and used interchangeably with, the term
``means of egress,'' or ``exit routes,'' which 29 CFR part 1910,
subpart E (Exit Routes and Emergency Planning), addresses. The purpose
of
[[Page 82531]]
that subpart is to establish requirements that provide workers with
safe means of exit from workplaces, particularly in emergencies. That
subpart does not address access to, and egress from, walking-working
surfaces to perform normal and regular work operations. OSHA notes this
rulemaking on walking-working surfaces does not affect subpart E.
OSHA believes the need for the vast majority of the provisions in
final Sec. 1910.23 is well settled. Pursuant to section 6(a) of the
OSH Act (29 U.S.C. 655(a)), OSHA adopted most of them in 1971 from
existing national consensus standards. Furthermore, all of the ANSI
ladder standards, with the exception of A14.7-2011, Mobile Ladder
Stands, derive from the original A14, American National Standard Safety
Code for Construction, Care, and Use of Ladders, which ANSI first
adopted in 1923. ANSI also revised and updated those standards
regularly since then to incorporate generally accepted industry best
practices.
With the revision of OSHA's ladder requirements for general
industry, OSHA also revised the ladder requirements in other general
industry standards. For example, OSHA replaced the ladder requirements
in 29 CFR 1910.268 (Telecommunications) with the requirement that
ladders used in telecommunications meet the requirements in 29 CFR part
1910, subpart D, including Sec. 1910.23.
Paragraph (a)--Application
Final paragraph (a), similar to the proposal, requires that
employers ensure that each ladder used in general industry, except
those ladders the final rule specifically excepts, meets the
requirements in final Sec. 1910.23. Final paragraph (a) consolidates
and replaces the application requirements in each of the existing OSHA
ladder rules with a uniform application provision applicable to all
ladders; Sec. 1910.21(b) defines ``ladder'' as ``a device with rungs,
steps, or cleats used to gain access to a different elevation.''
Final paragraph (a) includes two exceptions. First, final paragraph
(a)(1) specifies that Sec. 1910.23 excepts ladders used in emergency
operations such as firefighting, rescue, and tactical law enforcement
operations or training for these operations. The proposed rule limited
the exception to firefighting and rescue operations, but the final rule
expanded that exception to cover all emergency operations and training,
including tactical law enforcement operations. OSHA believes this
exception is appropriate because of the exigent conditions under which
emergency responders perform those operations and training.
OSHA based the expansion of the exception for all emergency
operations in part on comments from David Parker, manager of the risk-
management section for the Pima County (Tucson, AZ) Sheriff's Office
and Public Risk Management Association (PRIMA) board member, which
represents 1,500 public-sector members, including the following
comment:
[The impact of the proposed rulemaking on public entities] is
particularly important in view of the fact that some of the
requirements within the proposed [rule] may well be reasonable,
necessary, cost effective and [technologically] feasible in common
industrial environments. But they can create significant challenges
and greater hazard when extended to certain public entity activities
such as police tactical operations and training (Ex. 329, 01/20/
2011, p. 7).
Mr. Parker also said that applying the ladder requirements to
emergency operations, specifically law enforcement tactical situations,
and their training exercises, was impractical because those operations
require ladders designed for fast placement and access.
Second, final paragraph (a)(2), like the proposed rule, exempts
ladders that are designed into or are an integral part of machines or
equipment. OSHA notes this exemption applies to vehicles that the
Department of Transportation (DOT) regulates (e.g., commercial motor
vehicles). In particular, the Federal Motor Carrier Safety
Administration (FMCSA) regulates the design of ladders on commercial
motor vehicles. Section 4(b)(1) of the Occupational Safety and Health
Act of 1970 (OSH Act) (29 U.S.C. 653(b)(1)) specifies that OSHA
regulations do not apply where another Federal Agency ``exercise[s]
statutory authority to prescribe or enforce standards or regulations
affecting occupational safety or health.''
Final paragraph (a)(2) is consistent with OSHA's ladder
requirements for marine terminals (29 CFR 1917.118(a)(1)), which
excepts ladders that are an integral part of transportation-carrier
equipment (e.g., cargo containers, highway carriers, railway cars).
The exceptions in final paragraph (a) differ from the exceptions in
the existing OSHA ladder rules (i.e., Sec. Sec. 1910.25 (Portable wood
ladders) and 1910.29 (Manually propelled mobile ladder stands and
scaffold (towers))). Existing Sec. 1910.25 notes that it does not
specifically cover the following ladders: Other specialty ladders,
fruitpicker's ladders, combination step and extension ladders,
stockroom step ladders, aisle-way step ladders, shelf ladders, and
library ladders. This final rule does not carry forward those
exceptions. Thus, if an orchard ladder (formerly a fruitpicker's
ladder) meets the definition of ladder in this final rule (i.e., ``a
device with rungs, steps, or cleats used to gain access to a different
elevation'') and is used in general industry, the employer must ensure
that it meets the requirements in the final rule. However, OSHA notes
that the final rule does not apply to an orchard ladder used solely in
agricultural activities covered by 29 CFR part 1928.
Existing Sec. 1910.29(a) specifies that it does not cover ``aerial
ladders;'' however, the existing rule does not define this term.
Section 1910.67 (Vehicle-mounted elevating and rotating work platforms)
defines ``aerial ladder'' as a ``device consisting of a single- or
multiple-section extension ladder'' mounted on a vehicle (Sec.
1910.67(a)(2)). Although the final rule does not specifically except
aerial ladders, OSHA believes that aerial ladders come within the
exception for ladders designed into, or that are an integral part of, a
machine or equipment, which includes vehicles.
OSHA did not receive any comments on paragraph (a) of the proposed
rule and, therefore, adopted it as revised.
Paragraph (b)--General Requirements for All Ladders
Final paragraph (b), like the proposed rule, establishes general
requirements that apply to all ladders this section covers, including
wood, metal, and fiberglass or composite ladders, portable and fixed
ladders, stepladders and stepstools, mobile ladder stands and mobile
ladder stand platforms, and other ladders such as job-made ones. The
final rule draws most of the provisions in this paragraph from the
existing OSHA ladder standards for general industry and construction
with the goal of making these standards consistent. OSHA also draws a
number of provisions from the national consensus standards listed
above.
Final paragraph (b)(1), like the proposed rule, requires that
employers ensure ladder rungs, steps, and cleats are parallel, level,
and uniformly spaced when the ladder is in position for use. The final
provision is consistent with OSHA's other ladder requirements in
general industry, marine terminals, longshoring, and construction (see
Sec. Sec. 1910.25(c)(2)(i)(B), 1910.27(b)(1)(ii), 1910.268(h)(2) and
(6), 1917.118(d)(2)(i), 1917.119(b)(2), 1918.24(f)(2),
1926.1053(a)(2)). Final paragraph (b)(1) also is consistent with the
ANSI ladder standards (A14.1-2007, Sections 6.2.1.2, 6.3.1.2, 6.4, and
6.5.4; A14.2-2007, Section 5.3; A14.3-2008, Sections 5.1.1,
[[Page 82532]]
and 5.1.3(e); and A14.7-2011, Section 4.3.3). As mentioned, OSHA
believes the need for this ladder requirement is well settled. Most of
OSHA's existing ladder requirements include this provision, as do all
of the ANSI ladder standards.
Final paragraph (b)(1) adds the word ``cleats,'' which is common
terminology for a type of ladder cross-piece. OSHA added the term,
which is interchangeable with ``rungs'' and ``steps,'' to make final
paragraph (b)(1) consistent with other Agency ladder standards and
national consensus standards. OSHA did not receive any comments on the
proposed provision.
Final paragraphs (b)(2) and (3) establish requirements for spacing
between rungs, steps, and cleats on different types of ladders. With
the exception of ladders in elevator shafts, the final rule requires
that employers measure spacing between the centerlines (midpoint) of
the rungs, steps, or cleats. Measuring the spacing at the centerline of
the rung, step, or cleat ensures that measurements are done
consistently throughout the length of the ladder and variations between
different steps are minimal.
Like the proposed rule, final paragraph (b)(2) requires that,
except for ladders in elevator shafts and telecommunication towers,
employers ensure ladder rungs, steps, and cleats are spaced not less
than 10 inches and not more than 14 inches apart. OSHA drew the
proposed and final requirement from its construction ladder standard
(Sec. 1926.1053(a)(3)(i)), which OSHA updated in 1990 (55 FR 47660
(11/14/1990)). Final paragraph (b)(2) is consistent with OSHA standards
that have flexible vertical-spacing requirements. For example, OSHA's
Telecommunications standard at 29 CFR 1910.268 specifies that vertical
spacing on fixed ladders on communication towers not exceed 18 inches
(Sec. 1910.268(h)(2)), and vertical spacing of rungs on climbing
devices be not less than 12 inches and not more than 16 inches apart
(Sec. 1910.268(h)(6)). In addition, three maritime standards specify
that rungs be spaced between 9 to 16.5 inches apart (Sec. Sec.
1917.118(d)(2)(1); 1917.119(b)(2); 1918.24(f)(2)).
Final paragraph (b)(2) provides greater flexibility than ANSI's
ladder standards, most of which require that vertical spacing be 12
inches (A14.1-2007, Sections 6.2.1.2 and 6.3.1.2; A14.2-2007, Section
5.3; and A14.3-2008, Section 5.1.1), but the A14.7-2011 standard
incorporates flexible vertical spacing on mobile ladder stands by
specifying that vertical spacing not exceed 10 inches (Section 4.3.3).
Although OSHA believes that both the final rule and existing OSHA
and national consensus ladder standards provide adequate protection,
the Agency also believes it is important that the final rule be
consistent with the construction ladder requirements (Sec. 1926.1053).
OSHA recognizes that some employers and workers perform both general
industry and construction work. Increasing consistency between OSHA's
general industry and construction standards will assist those employers
and workers in complying with the OSHA requirements, and also will
minimize the potential for confusion. In addition, providing greater
flexibility will give employers more options to tailor ladders to
specific work operations. There were no comments on the proposed
provision.
The final rule, like the proposal, adds two exceptions to paragraph
(b)(2). Final paragraph (b)(2)(i) specifies that employers must ensure
rungs and steps on ladders in elevator shafts are spaced not less than
6 inches and not more than 16.5 inches apart, as measured along the
ladder side rails.
Final paragraph (b)(2)(ii) specifies that employers ensure that
vertical spacing on fixed ladder rungs and steps on telecommunication
towers not exceed 18 inches, which is consistent with the existing
requirement in OSHA's Telecommunications standard in Sec.
1910.268(h)(2). Final paragraph (b)(2)(ii) also adds the phrase
``measured between the centerlines of the rungs or steps.'' This
addition clarifies the provision, and makes it consistent with final
paragraphs (b)(2) and (3), which also requires vertical spacing to be
measured between rung or step centerlines. OSHA did not receive any
comments on the proposed exceptions.
Final paragraph (b)(3), like the proposed rule, addresses vertical
spacing for stepstool steps. The final rule requires that employers
ensure stepstool steps are spaced not less than 8 inches, and not more
than 12 inches, apart, as measured between centerlines of the steps.
The final paragraph (b)(3) deleted the terms ``rungs'' and ``cleats''
from the proposal because stepstools do not have them.
OSHA proposed requirements for stepstools in recognition that
employers use stepstools routinely in general industry. However,
stepstools differ from stepladders and other portable ladders, and OSHA
does not believe that some of the requirements applicable to
stepladders are appropriate for stepstools. The final rule defines a
stepstool as a self-supporting, portable ladder with flat steps and
side rails that is designed so an employee can climb on all of the
steps and the top cap. A stepstool is limited to those ladders that are
not height adjustable, do not have a pail shelf, and do not exceed 32
inches (81 cm) in overall height to the top cap, except that side rails
may continue above the top cap (Sec. 1910.21(b)).
Stepladders and other portable ladders, by contrast, do not have
height limits, and the final rule requires that employers ensure
workers do not stand on the top step or cap of those ladders.
OSHA drew final paragraph (b)(3) from its construction ladder
standards (Sec. 1926.1053(a)(3)(ii)), and the final rule is consistent
with the ANSI ladder standards that address stepstools (A14.1-2007,
Section 6.5.4; and A14.2-2007, Section 6.6.4). These standards also
address stepstools differently from step ladders and other portable
ladders.
OSHA believes that employers should not have any difficulty
complying with final paragraph (b)(3). The A14.1-2007 and A14.2-2007
standards have been available for years, so OSHA believes that almost
all stepstools currently in use already meet the requirements in the
final rule. OSHA did not receive any comments on proposed paragraph
(b)(3).
Final paragraph (b)(4) consolidates OSHA's existing requirements on
the minimum clear width for rungs, steps, and cleats on portable and
fixed ladders (Sec. Sec. 1910.25, 1910.26, 1910.27). The final rule
requires employers to ensure that ladder rungs, steps, and cleats on
portable and fixed ladders have a minimum ``clear width'' of 11.5
inches and 16 inches, respectively. ``Clear width'' is the space
between ladder side rails, but does not include the width of the side
rail. OSHA also incorporates as paragraph (b)(4) the proposed note
informing employers that the clear width measurement on fixed ladders
is done before installation of any ladder safety system.
Generally, the final rule is consistent with OSHA's existing ladder
standards, notably OSHA's standards for portable wood ladders, fixed
ladders, mobile ladder stands and platforms, and construction ladders
(existing Sec. Sec. 1910.25(c)(2)(i)(c)); 1910.27(b)(1)(iii); 1910.29;
and current Sec. 1926.1053(a)(4)). The final rule differs slightly
from the existing rule for portable metal ladders, which required a
minimum clear width of 12 inches (Sec. 1910.26(a)(2)(i)). However, the
final rule will not require employers to take any action since the
existing portable metal ladder rules already meet the minimum 11.5-inch
clear-width requirement of the final rule. In addition, OSHA removed
the term ``individual-rung ladder'' from
[[Page 82533]]
final paragraph (b)(4) because these ladders are a type of fixed ladder
and, therefore, do not need a separate listing.
The final rule also is consistent with the ANSI ladder standards
(A14.1-2007, Sections 6.2.1.3, 6.3.2.4, 6.3.3.8, 6.3.4.3, 6.3.5.4, and
6.4.1.3; A14.2-2007, Sections 6.1.3, 6.2.1, and 6.2.2; and A14.3-2008,
Section 5.1.2). Although the minimum clear widths in the ANSI standards
differ depending on the type of portable or fixed ladder used,
virtually all of these standards require the minimum clear width
specified by the final rule.
Final paragraph (b)(4) contains four exceptions to the minimum
clear-width requirement. First, final paragraph (b)(4)(i), like the
proposal, includes an exception for ladders with narrow rungs that are
not designed to be stepped on, such as those located on the tapered end
of orchard ladders and similar ladders. This exception recognizes that
manufacturers did not design the narrow rungs at the tapered end of the
ladder to be foot holds, but rather designed them to allow the worker
to establish the best work position. For example, tapered ladders allow
workers to safely position the ladder for activities such as pruning
tree branches. Since workers will not use the narrow rungs on the
tapered end of orchard and other similar ladders for stepping, OSHA
believes that it is not necessary to apply the clear width requirements
in the final rule to the narrow rungs on these ladders. However, OSHA
stresses that the exception only applies to the narrow rungs on the
tapered end; the remainder of the ladder rungs where workers may step
must meet the requirements in the final rule. Moreover, employers are
responsible for ensuring that workers do not step on the narrow rungs.
Second, final paragraph (b)(4)(ii) retains the proposed rule's
exception for portable manhole entry ladders supported by manhole
openings. The final rule only requires that the rungs and steps of
those ladders have a minimum clear width of 9 inches. Southern New
England Telephone Co. said the revision was necessary because the
ladder supported at the manhole opening reduces clearance for workers
climbing through the manhole opening (Ex. OSHA-S041-2006-0666-0785).
The commenter also said that using a narrower ladder provides more
space for workers to negotiate the manhole opening, which makes it less
likely that space restrictions could cause the worker to fall.
Third, final paragraph (b)(4)(iii), like the proposal, incorporates
the exception in OSHA's Telecommunications rule (Sec. 1910.268(h)(5))
for rolling ladders used in telecommunications centers. That standard
only requires that rungs and steps on rolling ladders used in
telecommunication centers have a minimum clear width of 8 inches. OSHA
notes that the final rule deletes the existing requirements in Sec.
1910.268(h), and specifies that ladders used in telecommunications must
meet the requirements in revised subpart D.
Final paragraph (b)(4)(iv) is a new requirement that addresses the
minimum clear width for stepstools, which OSHA defines as a type of
portable ladder (Sec. 1910.21(b)). The final rule specifies that
stepstools must have a minimum clear width of at least 10.5 inches
instead of the 11.5-inch minimum clear width that the final rule
requires for other portable ladders. Although OSHA did not receive any
comments on this issue, in accordance with section 6(b)(8) of the OSH
Act (29 U.S.C. 655(b)(8)), the Agency added this provision to make the
rule consistent with ANSI/ALI national consensus standards for wood and
metal portable ladders (A14.1-2007 and A14.2-2007).
As mentioned above, final paragraph (b)(4) incorporates into this
provision the language from a note in the proposal specifying the
minimum clear width on fixed ladders is to be measured before
installing ladder safety systems. OSHA included the information to help
employers understand how OSHA measures clear width on fixed ladders for
compliance purposes and has determined that the information may better
serve employers in the actual provision, instead of in a note. OSHA did
not receive any comments on the proposed provision.
Final paragraph (b)(5), like the proposal, adds a new requirement
that employers ensure wooden ladders are not coated with any material
that may obscure structural defects. Such defects, if hidden by coating
or paint, could injure or kill workers if the defected ladder they step
on breaks or collapses. OSHA drew the final rule from its construction
ladder standard, which prohibits coating wood ladders with any ``opaque
covering'' (Sec. 1926.1053(a)(12)), but adds language identifying the
hazard that the provision will prevent (i.e., workers using defective
ladders with obscured ``structural defects''). The final rule is
consistent with A14.1-2007, which specifies that wood ladders may have
transparent, non-conductive finishes (e.g., shellac, varnish, clear
preservative) but not with opaque finishes (see A14.1-2007, Section
8.4.6.3). The A14.3-2008 standard includes the same requirement for
fixed wood ladders (Section 9.3.8). OSHA believes that A14.1-2007 and
A14.3-2008 provide helpful examples of the types of coatings that the
final rule prohibits. OSHA did not receive any comments on the proposed
provision.
Final paragraph (b)(5) does not carry forward the language in the
construction and ANSI ladder standards that allows identification or
warning labels to be placed on one face of the side rails. OSHA does
not believe the language is necessary for two reasons. First, for
purposes of final paragraph (b)(5), OSHA does not consider
manufacturer-applied warning and information labels to be ``coatings,''
therefore, final paragraph (b)(5) does not prohibit placing labels on
one side of side rails. Second, OSHA believes that the requirements in
final paragraph (b)(9) to inspect ladders before initial use each
workshift to identify defects, and the requirement in final paragraph
(b)(10) to remove defective ladders from service, will ensure that
employers do not use ladders with structural defects, even structural
defects covered up by labels placed on the face of side rails. OSHA did
not receive any comments on the proposed provision.
Final paragraph (b)(6) requires that employers ensure metal ladders
are made with corrosion-resistant material or are protected against
corrosion. For example, metal ladders coated or treated with material
that resists corrosion will meet this requirement. Alternatively,
employers may use metal ladders made with material that is inherently
corrosion-resistant, such as aluminum. OSHA believes this provision is
necessary to protect workers because rusty metal ladders can become
weak or fragile, and can break when a worker steps on them. To
illustrate, untreated metal ladders exposed to certain acids may
experience chemical corrosion that could reduce the strength of the
metal.
Final paragraph (b)(6) carries forward the language in OSHA's
existing portable metal ladders standard (Sec. 1910.26(a)(1)), and is
consistent with a similar provision in the existing fixed ladder
standard (Sec. 1910.27(b)(7)(i)). The final rule also retains the
language in the existing rule that employers do not have to protect
metal ladders that are inherently corrosion resistant. In the proposed
rule, OSHA preliminarily determined that this language was not
necessary because ladders ``protected against corrosion'' included
ladders made of inherently corrosion-resistant material. However, upon
further analysis, OSHA believes that retaining the existing language
(Sec. 1910.26(a)(i)) makes the final rule clearer and better reflects
the purpose of this provision.
[[Page 82534]]
OSHA did not receive any comments on the proposed provision.
Final paragraph (b)(7), like the proposed rule, specifies that
employers must ensure ladder surfaces are free of puncture and
laceration hazards. Workers can suffer cuts and puncture wounds if a
ladder has sharp edges or projections, splinters, or burrs. The final
rule consolidates and simplifies OSHA's existing ladder requirements
addressing puncture and laceration hazards (see Sec. Sec.
1910.25(b)(1)(i) and (c)(2)(i)(f); 1910.26(a)(1) and (a)(3)(viii); and
1910.27(b)(1)(iv) and (b)(2)). Although final Sec. 1910.22(a)(3)
contains a similar general requirement, OSHA believes it is important
to include language in final paragraph (b)(7) to emphasize the need to
keep ladders free of such hazards to prevent injuries and falls. For
example, a worker's instantaneous reaction to getting cut on a sharp
projection could be to release his or her grip on the ladder, which
could cause the worker to fall. OSHA did not receive any comments on
the proposed provision.
Final paragraph (b)(8), like the proposed rule, requires that
employers ensure ladders are used only for the purposes for which they
were designed. OSHA believes, as the ANSI standards states, that
``[p]roper use of [ladders] will contribute significantly to safety''
(A14.1-2007, Section 8.1.5; A14.2-2007, Section 8.1.5; and A14.3-2008,
Section 9.1.2). Improper use of a ladder can cause workers to fall.
Final paragraph (b)(8) revises the existing general industry ladder
rules. Using performance-based language, final paragraph (b)(8)
consolidates the existing general industry requirements on permitted
and prohibited uses of ladders (Sec. Sec. 1910.25(d)(2) and
1910.26(c)(3)(vii)). Those standards specify a number of uses that are
clearly unsafe and, thus, prohibited, such as using ladders for
scaffold planks, platforms, gangways, material hoists, braces, or gin
poles. However, the existing rules do not, and could not, provide an
exhaustive list of all unsafe uses. For example, the existing rules do
not specifically prohibit self-supporting portable metal ladders to be
used as a scaffold plank support system, yet such practices are clearly
dangerous and an improper use of ladders. Therefore, final paragraph
(b)(8) revises the existing rules to specify how employers must use
ladders, instead of specifying a longer, but still incomplete, list of
prohibitions. OSHA's approach to final paragraph (b)(8) is consistent
with A14.3-2008, which states, ``The guidelines discussed in this
section do not constitute every proper or improper procedure for the
maintenance and use of ladders (Section 9.1.1.).'' Accordingly, the
prohibited uses listed in the existing rules continue to be improper
procedures for the use of ladders, which this final rule continues to
prohibit.
Final paragraph (b)(8) is virtually identical to OSHA's
construction ladder standard (Sec. 1926.1053(b)(4)), and is consistent
with the ANSI ladder standards (A14.1-2007, Section 8.3; A14.2-2007,
Section 8.3; and A14.3-2008, Section 9.1.2). Final paragraph (b)(8)
does not carry forward the language in existing Sec.
1910.26(c)(3)(vii), which prohibits employers from using ladders for
certain purposes ``unless specifically recommended for use by the
manufacturer.'' OSHA believes that requiring employers to use ladders
``only for the purposes for which they were designed [emphasis added]''
achieves the same purpose. In addition, the revised language in the
final rule ensures that the revised requirement also covers job-made
ladders the employer designs. OSHA did not receive any comments on the
proposed provision.
Final paragraph (b)(9) requires that employers ensure ladders are
inspected before initial use in each work shift, as well as more
frequently as necessary. The purpose of this inspection is to identify
visible defects that could affect the safe use and condition of the
ladder and remove unsafe and damaged ladders from service before a
worker is hurt. Employers may accomplish the visual inspection as part
of the worker's regular procedures at the start of the work shift. The
final rule differs in two respects from the existing and proposed
standards. First, the final rule states more explicitly than the
existing and proposed rules when the inspection of each ladder must be
done: before using the ladder for the first time in a work shift. Two
of OSHA's existing general industry rules require that employers
inspect ladders ``frequently'' and ``regularly'' (Sec. Sec.
1910.25(d)(1)(x) and 1910.27(f)). OSHA's construction ladder standard
requires employers to inspect ladders ``on a periodic basis'' (Sec.
1926.1053(b)(15)).
In the proposed rule, OSHA sought to clarify the frequency of
ladder inspections. OSHA drew on the language in its longshoring ladder
standard (Sec. 1918.24(i)(2)) and A14.1-2007 and A14.2-2007. OSHA's
longshoring standard requires that employers inspect ladders ``before
each day's use'' (Sec. 1918.24(i)(2)), and the ANSI standards require
that employers inspect ladders periodically, ``preferably before each
use'' (A14.1-2007, Section 8.4.1.; and A14.2-2007, Section 8.4.1).
Based on those standards, OSHA proposed that employers inspect ladders
``before use.'' OSHA intended the proposed language to mean that
employers must ensure ladders are inspected before workers use them for
the first time during a work shift. OSHA believes the language in final
paragraph (b)(9) more clearly and directly states the Agency's
intention.
Second, final paragraph (b)(9) adds language specifying that, in
addition to inspecting ladders before they are used for the first time
during the work shift, employers also must inspect ladders ``as
necessary'' to identify defects or damage that may occur during a work
shift after the initial check. OSHA believes that situations may arise
or occur during a work shift that necessitate employers conducting
additional inspections of ladders to ensure that they continue to
remain safe for workers to use. For example, if a ladder tips over,
falls off a structure (e.g., roof) or vehicle, is struck by an object
(e.g., vehicle or machine), or used in a corrosive environment, it
needs to be inspected to ensure damage has not occurred and the ladder
is still safe to use. The final rule is consistent with the existing
requirement for portable metal ladders Sec. 1910.26(c)(2)(vi), which
specifies that employers must inspect ladders ``immediately'' if they
tip over or are exposed to oil or grease. Similarly, OSHA's marine
terminal and longshoring standards require that employers inspect
ladders ``after any occurrence, such as a fall, which could damage the
ladder'' (29 CFR 1917.119(e)(2) and 1918.24(i)(2)). OSHA believes the
addition to final paragraph (b)(9) will help employers implement a
proactive approach that ensures ladders are safe at the start of, and
throughout, each work shift. The final rule better articulates OSHA's
intent in the proposal for the frequency of inspections. (See 75 FR
28876, noting that workers need not inspect ladders multiple times per
shift ``unless there is a reason to believe the ladder has been damaged
due to an event such as being dropped.'')
Final paragraph (b)(9) provides employers with flexibility to
tailor ladder inspections to the situations requiring them. For
example, inspections conducted at the start of the work shift may
include checking the ladder to ensure the footing is firm and stable,
engaging spreader or locking devices to see if they work, and
identifying whether there are missing or damaged components. If a
ladder tips over, the employer may focus the inspection on identifying
whether footing problems may have caused the
[[Page 82535]]
tip-over or examining whether rungs are still firmly attached. On the
other hand, the existing rule does not provide this flexibility and
requires that all inspections conducted after a tip over must include
the following:
Side rails for dents or bends;
Rungs for excessive dents;
All rung-to-side-rail connections;
Hardware connections; and
Rivets for shear (existing Sec. 1910.26(c)(2)(vi)(a)).
OSHA believes this list of inspection procedures may be both over-
inclusive and under-inclusive. For example, the existing rule does not
specify that the inspection cover the ladder footing. OSHA believes
that using performance-based language will allow employers to determine
the scope of the inspection that may be necessary.
Finally, OSHA notes that the revisions simplifying final paragraphs
(b)(8) and (9) are consistent with the goals of the Plain Language Act
of 2010. OSHA did not receive any comments on these proposed
provisions.
Final paragraph (b)(10), which is almost identical to the proposed
rule, requires that employers immediately tag ladders with structural
or other defects ``Dangerous: Do Not Use'' or similar language that is
in accordance with Sec. 1910.145. In addition, final paragraph (b)(10)
requires that employers remove defective ladders from service until the
employer repairs them in accordance with Sec. 1910.22(d) or replaces
them. Final Sec. 1910.22(d)(2) contains a general requirement that
employers correct, repair, or guard against ``hazardous conditions on
walking-working surface surfaces,'' including ladders. However, OSHA
believes it is important to also include a specific requirement in this
section because falling from a defective ladder could seriously injure
or kill workers. Final paragraph (b)(10) clearly instructs employers of
the minimum procedures (i.e., tagging, removing, and repairing or
replacing) that they must take when an inspection reveals a ladder to
be defective. Final paragraph (b)(10), like final Sec. 1910.22(d)(2),
is a companion, and logical extension, to the requirements that
employers maintain walking-working surfaces, including ladders, in a
safe and serviceable condition, and inspect them as required
(Sec. Sec. 1910.22(d)(1); 1910.23(b)(9)).
Final paragraph (b)(10) is a performance-based consolidation of the
existing general industry, maritime, and construction requirements
(Sec. Sec. 1910.25(d)(1)(iii), (d)(1)(x), and (d)(2)(viii);
1910.26(c)(2)(vii); 1915.72(a)(1); 1917.119(e)(1); 1918.24(i)(1); and
1926.1053(b)(16)). Some of these standards are similar to the final
rule, while other standards specify particular ladder defects that
necessitate removing the ladder from service. For example, the
construction ladder standard requires removal of ladders that have
defects such as broken or missing rungs, cleats, or steps; broken
rails; or corroded ladder components (Sec. 1926.1053(b)(16)), and the
existing general industry portable wood ladders standard requires
employers to replace frayed rope (Sec. 1910.25(d)(i)(iii)). The final
rule simplifies the existing requirements by specifying that employers
remove ladders that have ``structural or other defects.'' OSHA believes
this approach will make the final rule easier to understand. As noted
above, the defects listed in the existing rules in Sec. Sec.
1910.25(d)(2)(viii) and 1910.26(c)(2)(vii)) continue to warrant removal
of the ladder from service.
Final paragraph (b)(10) retains the key signal warning word
``Dangerous'' in existing Sec. 1910.25(d)(1)(x). OSHA proposed to
remove the word from the regulatory text and include it in guidance
material. After further analysis, OSHA believes that retaining the
signal word is necessary to get workers' attention to provide them with
basic information that a hazard exists and they must not use the
ladder. OSHA did not receive any comments on proposed paragraph
(b)(10).
Final paragraphs (b)(11), (12), and (13), like the proposed rule,
are companion provisions that establish safe work practices for
climbing ladders. The final paragraphs are almost identical to OSHA's
construction ladder standard (see Sec. 1926.1053(b)(20), (21), and
(22)). OSHA notes that final paragraphs (b)(11), (12), and (13) apply
to all ladders this section covers, including mobile ladder stands and
mobile ladder stand platforms.
Final paragraph (b)(11), like the existing (Sec. 1910.26(c)(3)(v))
and proposed rules, requires that employers ensure workers face the
ladder when climbing up and down it. The final rule also is almost
identical to OSHA's construction ladder standard (Sec.
1926.1053(b)(20)) and the ANSI ladder standards (A14.1-2007, Section
8.3.7; A14.2-2007, Section 8.3.7; and A14.3-2008, Section 9.2.1).
Facing the ladder while climbing ensures that workers are able to
maintain a firm grip on the ladder and also identify possible defects
before climbing any higher. Accordingly, workers are to face the steps,
not away from them, when climbing up and down mobile units.
To make final paragraph (b)(11) easier to understand, OSHA replaced
the existing and proposed language ``ascending or descending'' with
plain language: Climbing up and down. This revision is consistent with
general comments recommending that OSHA make the final rule easier to
read and understand (Exs. 53; 175). OSHA did not receive any comments
on the proposed provision.
Final paragraph (b)(12), like the proposed rule, adds a new
provision requiring that employers ensure workers use ``at least one
hand to grasp the ladder at all times when climbing up and down it.''
\19\ As stated in the proposal, the intent of this provision is for
employers to ensure their workers maintain ``three-point contact''
(i.e., three points of control) with the ladder at all times while
climbing. The A14.3-2008 standard requires three-point contact and
defines the term as consisting of ``two feet and one hand or two hands
and one foot which is safely supporting users weight when ascending/
descending a ladder'' (Section 9.2.1). OSHA drew final paragraph
(b)(12) from its construction ladder standard (Sec. 1926.1053(b)(21)).
The final provision also is consistent with ANSI ladder standards.
---------------------------------------------------------------------------
\19\ OSHA notes paragraph (b)(12) pertains only to the process
of climbing up and down the ladder, not working on the ladder once
the worker reaches the correct level.
---------------------------------------------------------------------------
The final rule requires that employees ``grasp'' the ladder with at
least one hand when climbing, which is equivalent to the requirement in
A14.1-2007 and A14.2-2007 to ``maintain a firm hold on the ladder''
(A14.1-2007, Section 8.3.7.; A14.2-2007, Section 8.3.7). At the
hearing, Ellis explained the importance of maintaining a firm grasp on
the ladder at all times, ``[F]alls happen very suddenly and unless you
have your hand on something or your foot on something that's horizontal
and flat or round * * * you're going to be surprised. And once you get
to a few inches away the speed of the fall is such you can't reach--you
can't grab, that's why you can't stop a fall'' (Ex. 329 (1/21/2011),
p.277). Many stakeholders said employers already train workers to use
three-point contact when climbing ladders (e.g., Exs. 148; 158; 181).
NCSG contended that an employer can comply with this requirement if
its employees slide one hand along the rail of the ladder while
climbing so that the other hand is free to carry an object (Ex. 150).
It claimed that merely maintaining ``contact'' between the hand and the
ladder at all times was sufficient (see Ex. 329 (1/18/2011), p. 289).
OSHA does not agree that this technique is grasping the ladder within
the meaning of paragraph (b)(12). It is important that a climber have a
firm hold on the ladder
[[Page 82536]]
with at least one hand to help ensure that the climber maintains his or
her balance. Moreover, as Ellis noted, when a climber starts to lose
balance, the climber needs ``the grip available to stabilize the body''
(Ex. 329 (1/21/2011), p. 275-76). OSHA notes that it rejected NCSG's
``sliding hand'' technique as unsafe when it adopted the construction
standard; in fact, the construction standard uses the term ``grasp''
precisely because OSHA intended to forbid the practice (55 FR 47682).
OSHA notes that the requirement that a worker maintain a firm grasp
of the ladder with at least one hand at all times while climbing does
not prohibit workers from carrying certain objects while they climb.
However, any object a worker does carry must be of a size and shape
that still allows the worker to firmly grasp the ladder with that hand
while climbing.
OSHA received one comment on proposed paragraph (b)(12). Ellis Fall
Safety Solutions (Ex. 344) recommended OSHA require that workers hold
onto horizontal rungs and not side rails or ladder extensions. Ellis
submitted a study showing that climbers cannot hold onto side rails or
ladder extensions effectively if they begin to fall off the ladder.
OSHA agrees with Ellis that grasping the ladder on horizontal rungs is
preferable and encourages employers to follow this practice. However,
OSHA also recognizes there may be times when it is necessary for
employees to hold the side rails. OSHA is not aware of any reports that
holding the side rails of ladders creates a problem when workers
maintain three points of contact while climbing. In addition, OSHA
notes that neither the construction ladder standard (Sec.
1926.1053(b)(21)) nor the ANSI/ALI consensus standards (A14.1-2007 and
A14.2-2007) prohibit workers from holding onto ladder side rails while
climbing.
Final paragraph (b)(13), like the proposed and construction ladder
rules (Sec. 1926.1053(b)(22)), requires that employers ensure workers
climbing ladders do not carry any objects or loads that could cause
them to lose their balance and fall. As OSHA stated in the preamble to
the construction ladder standard, the purpose of this provision is to
emphasize the importance of proper and careful use of ladders when
workers need to carry items to and from work spaces:
It is OSHA's belief that the employee's focus and attention
while climbing up and/or down a ladder should be on making a safe
ascent or descent and not on transporting items up and down the
ladder (55 FR 47682).
As explained above, neither the final rule nor the construction
ladder standard prohibit workers from carrying an object while climbing
a ladder. The final rule allows workers to carry an object, provided
they:
Face the ladder while climbing (final paragraph (b)(11));
Grasp the ladder with at least one hand at all times when
climbing up and down the ladder, which will ensure workers maintain at
least three points of contact (final paragraph (b)(12)); and
Do not carry an object(s) that could cause them to lose
their balance and fall (final paragraph (b)(13)).
Similarly, in the preamble to the construction ladder standard,
OSHA said:
Although OSHA believes that small items such as hammers, pliers,
measuring tapes, nails, paint brushes, and similar items should be
carried in pouches, holsters, or belt loops, the language in the
final rule would not preclude an employee from carrying such items
while climbing a ladder so long as the items don't impede the
employee's ability to maintain full control while climbing or
descending the ladder (55 FR 47682).
Under both the final and construction rules, employers are
responsible for ensuring that workers are able to maintain full control
and balance while they are climbing. Employers also must ensure that
carrying an object does not impede workers' control and balance, such
as struggling to maintain their control or balance on the ladder. To
that end, employers need to evaluate whether the weight and size of
tools and other items workers use for jobs are such that workers can
maintain their balance and grasp on the ladder while carrying the item
in that hand or whether workers need to use other methods to get the
items to the roof safely, such as using backpacks, making multiple
climbs, or lifting items attached to ropes. NCSG said their members
conduct evaluations (i.e., hazard assessments) at each job site, which
include whether workers ``can . . . safely access the roof with
ladders'' (Ex. 329 (1/18/2011), p. 276).
Employers also need to ensure workers know what items they can and
cannot carry while climbing ladders. NCSG agreed, saying they train
workers so they ``understand what items they are permitted to carry and
how they should be carried so that they maintain a stable position
while ascending and descending the ladder(s)'' (Ex. 150). For example,
OSHA does not believe workers can maintain the required balance and
control if they must carry a heavy or bulky object in one hand while
climbing.
NCSG raised several objections to proposed paragraphs (b)(12) and
(13). NCSG said the requirements ``would make it technically and
economically infeasible for [chimney] sweeps to perform their work''
because it would be impossible for workers to get items up to the roof
if they cannot carry them in one hand and slide their other hand up the
ladder rail while climbing (Ex. 150). OSHA does not believe the record
supports NCSG's infeasibility contentions.
First, as stated above, final paragraphs (b)(12) and (13) do not
prohibit workers from carrying an item when they climb a ladder.
Workers can carry an object while climbing a ladder, provided they also
can grasp the ladder with that hand during the climb. Some of the
objects NCSG said their members carry are small enough that it would be
possible for workers to hold them and grasp the ladder with the same
hand.
Second, even if a worker cannot carry a particular object and still
maintain a firm grasp on the ladder with that hand, there are a variety
of other methods they can use to transport the object(s) to the roof
and still allow the worker to firmly grasp the ladder with their hands.
According to NCSG, member companies already use them. For example, NCSG
said workers get tools and equipment, such as flashlights, mirrors,
screwdrivers, wrenches, cameras, tape measures, and cleaning rods and
brushes, up to the roof using backpacks, tool belts, and quivers (Ex.
150). For one story homes, NCSG said workers lean roof hook ladders
against the eaves and pull the ladder up once they have climbed up on
the roof (Ex. 329 (1/18/2011), p. 342).
If the job is a major repair (e.g., relining or rebuilding
chimneys), which according to NCSG accounts for 20 to 25 percent of
chimney sweep work, employers use scaffolds or aerial lifts (Ex. 329
(1/18/2011), p. 327). According to NCSG, not only do scaffolds allow
employers to get materials to the roof without carrying them on a
portable ladder, they provide workers with ``a nice flat platform to
stand on'' (Ex. 329 (1/18/2011), p. 325).
OSHA believes that chimney sweep companies also can use handlines
and ropes to pull heavy or bulky items up on the roof. OSHA believes
this method will work particularly well for getting chimney caps and
roof hook ladders to the roof, both of which NCSG said do not fit into
backpacks. Pulling up materials to the roof is a common practice in the
construction industry. In the preamble to the construction ladder
standard, OSHA said workers take ``large or heavy'' items to the roof
by
[[Page 82537]]
``pull[ing] the object up or lower[ing] it with a handline'' (55 FR
47682). NCSG, however, said that ``it is unlikely [lifting items to the
roof with a handline] can be done without risking damage to the home or
[item].'' NCSG did not explain or provide any evidence to support their
claim. In addition, NCSG did not provide any evidence that it is not
possible to prevent damage by using appropriate techniques or padding.
OSHA has not received any reports and is not aware of any problems in
the construction industry using handlines to pull up items to
residential or commercial roofs.
NCSG claimed that using handlines to lift items to roofs would be
``economically infeasible'' because it could not be done without the
assistance of a second person, which they claim would increase job
costs by about 30 percent. OSHA finds this claim unsupported by the
record. NCSG did not explain or provide evidence about why a second
worker would be necessary in such instances. In addition, NCSG did not
provide any support for its claim that costs would increase by 30
percent.
Finally, NCSG contended that complying with final paragraphs
(b)(12) and (13) would create a greater hazard for workers than
allowing them to carrying objects up ladders with one hand while
sliding the other hand up the ladder rails (Ex. 150). In particular,
they said that attaching work tools and other items to a rope and
lifting them to the roof would create a greater fall hazard because
workers must be ``right at the roof's edge to keep the item in view and
lift it onto the roof'' (Ex. 150). To establish that an OSHA standard
creates a greater hazard an employer must prove, among other things,
that the hazards of complying with the standard are greater than those
of not complying, and alternative means of employee protection are not
available (Bancker Construction Corp., v. Reich, 31 F.2d 32, 34 (2d
Cir. 1994); Dole v. Williams Enterprises, Inc., 876 F.2d 186, 188 (D.C.
Cir. 1989)).
NCSG has not provided any evidence to establish that complying with
final paragraphs (b)(12) and (13) or using other methods to get objects
up to the roof is more dangerous than allowing employees to carry
objects, regardless of their weight and size, in one hand while sliding
the other hand up ladder rails while they climb the ladders. In fact,
an NCSG witness testified that the greatest fall hazard is the
``ladder-to-roof transition'' (Ex. 329 (1/18/2011), p. 333). The
transition is made even more hazardous if workers are carrying heavy or
bulky objects in one hand and trying to get onto the roof by sliding
the other hand along the ladder rail.
NCSG also maintained that pulling items up to the roof with
handlines would require workers to be at the roof's edge, where they
will be at risk of falling. NCSG did not provide any evidence to
support that claim. OSHA notes that the final rule requires workers to
use fall protection while working at the edge of a roof.
Finally, although NCSG said they were ``not aware of any feasible
alternatives to carrying items in one hand and sliding the other hand
up the ladder rail, NCSG identified several alternatives that they
currently are using. NCSG said workers put tools and other items in
backpacks, tool belts, and quivers so they can climb ladders with both
hands free, instead of carrying the objects in their hands (Ex. 150).
With the exception of roof hook ladders and chimney caps, NCSG said
they are able to get all items up to the roof in backpacks, tool belts,
and quivers. OSHA also believes that handlines and ropes are feasible
to safely lift chimney caps and roof hook ladders.
Paragraph (c)--Portable Ladders
Final paragraph (c), like the proposed rule, sets forth
requirements for portable ladders. The requirements in final paragraph
(c) are in addition to the requirements in final paragraph (b) that
apply to all ladders this section covers. The final rule defines
``portable ladder'' as a ladder that can be readily moved or carried,
and usually consists of side rails joined at intervals by steps, rungs,
or cleats (Sec. 1910.21(b)).
To further OSHA's goal of making the final rule clearer and easier
to read, final paragraph (c) replaces existing detailed design and
construction specifications with more flexible performance-based
language. By doing so, OSHA was able to make other revisions that will
increase employers' and workers' understanding of the final rule.
First, using performance-based language allowed OSHA to combine the
existing requirements for portable wood (existing Sec. 1910.25) and
portable metal ladders (existing Sec. 1910.26), thereby eliminating
unnecessary repetition. Second, it allowed OSHA to remove the
exceptions in existing Sec. 1910.25(a) for ``special'' types of
ladders, including orchard ladders, stock room step ladders, and
library ladders. Final paragraph (c) covers all of those ladders to the
extent that employers use them in general industry operations. Finally,
it also allows OSHA to remove the separate requirements for certain
types of portable ladders such as painter's stepladders, mason's
ladders, and trolley and side-rolling ladders.
Final paragraph (c)(1), like the existing and proposed rules,
requires that employers minimize slipping hazards on portable metal
ladders. Accordingly, the final rule specifies that employers must
ensure rungs and steps of portable metal ladders are corrugated,
knurled, dimpled, coated with skid-resistant material, or otherwise
treated to minimize the possibility of slipping. Final paragraph (c)(1)
is the same as OSHA's construction ladder standard (Sec.
1926.1053(a)(6)(ii)), and is consistent with A14.2-2007 (Section 5.5).
Ellis (Ex. 155) supported skid-resistance on ladder steps. There were
no opposing comments on the provision.
Final paragraph (c)(2), like the proposal, retains existing
requirements (Sec. Sec. 1910.25(c)(2)(i)(f) and 1910.26(a)(3)(viii))
that employers ensure each stepladder, or combination ladder used in a
stepladder mode, is equipped with a metal spreader or locking device.
The final rule also requires that the spreader or locking device
securely holds the front and back sections of the ladder in an open
position while the ladder is in use. The term ``stepladder mode'' as
used in final paragraph (c)(2) means that the configuration of the
combination ladder is such that the ladder is self-supporting and
functions as stepladder.
The OSHA construction ladder standard also requires that
stepladders have spreaders or locking devices (Sec. 1926.1053(a)(8)).
In addition, the A14.1-2007 and A14.2-2007 standards require spreaders
or locking devices for stepladders, and A14.2-2007 requires that
combination ladders and trestle ladders also have those devices (A14.1-
2007, Section 6.2.1.6; and A14.2-2007, Sections 6.1.9, 6.5.8, 6.6.8).
The proposed rule would have required that stepladders be ``designed''
with spreaders or locking devices; the final rule clarifies that the
stepladder must be ``equipped'' with those devices when used by an
employee.
Final paragraph (c)(2) does not retain language in the existing
rules requiring that employers remove or cover sharp points or edges on
spreaders (Sec. Sec. 1910.25(c)(2)(i)(f) and 1910.26(a)(3)(viii)).
OSHA believes that final Sec. 1910.23(b)(7), which requires employers
to ensure ladder surfaces are free of puncture and laceration hazards
adequately addresses that issue. Thus, OSHA believes that it is not
necessary to repeat that requirement in final paragraph (c)(2). OSHA
did not receive any comments on the proposed deletion.
[[Page 82538]]
Final paragraph (c)(3) requires that employers not load portable
ladders beyond their maximum intended load. A note to final paragraph
(c)(3) reminds employers that maximum intended load includes the weight
and force of workers and the tools, equipment, and materials workers
are carrying, which is consistent with the definition of ``maximum
intended load'' in final Sec. 1910.21(b).
The final rule differs from both the existing and proposed rules.
The existing rule requires that portable ladders be capable of
withstanding a 200-pound load. In the proposed rule, OSHA required that
employers ensure that the weight on portable ladders not exceed the
weight ``for which they were designed and tested, or beyond the
manufacturer's rated capacity.''
After further analysis, OSHA removed the proposed language from
final paragraph (c)(3) for the following reasons. First, OSHA believes
that requiring employers to ensure each ladder supports its maximum
intended load is comprehensive, and the additional language in the
proposed rule is not necessary. OSHA believes that the language in the
``maximum intended load'' definition (i.e., ``loads reasonably
anticipated to be applied to a walking-working surface'') will ensure
that the load on a ladder will not exceed the weight for which the
ladder was designed or tested, or the manufacturer's rated capacity.
Second, removing the additional language in the proposal makes
final paragraph (c)(3) consistent with final Sec. 1910.22(b), and
easier to understand. Third, OSHA believes that including the proposed
language ``manufacturer's rated capacity'' in the final rule may cause
confusion about whether the provision applies to both job-made ladders
and manufactured ones. The language in the final standard clearly reads
that the requirement applies to all types of portable ladders.
OSHA notes that, unlike the performance-based language in final
paragraph (c)(3), the construction ladder standard requires that
portable ladders meet specific load requirements (Sec.
1926.1053(a)(1)). As discussed above, one of the goals of this
rulemaking is to make the final rule consistent with the construction
standard. Accordingly, OSHA will consider employers who ensure their
portable ladders meet the load requirements in Sec. 1926.1053(a)(1) as
being in compliance with final paragraph (c)(3). OSHA did not receive
any comments on the proposed provision and finalizes the provision as
discussed.
Final paragraph (c)(4), like the proposed rule, requires that
employers ensure portable ladders are used only on stable and level
surfaces unless they are secured or stabilized to prevent accidental
displacement. When the footing of ladders is not stable or level and
the ladder is not secure, the ladder can slip out of place or tip over
because of workplace activities, traffic, and weather conditions (e.g.,
high winds). According to the A14.1-2007 standard, lack of stability
and sliding of the ladder are the major causes of falls from self-
supporting ladders, while lateral sliding at the top of the ladder and
outward sliding of the ladder at the lower base support are major
causes of falls from non-self-supporting portable ladders (A14.1-2007,
Section 8.1.3).
The final rule consolidates and revises the existing portable
ladder rules, which requires placing portable ladders so they have
``secure footing'' (Sec. Sec. 1910.25(d)(2)(iii) and
1910.26(c)(3)(iii)). The final rule further clarifies that employers
can ensure secure footing for portable ladders either by (1) placing
them on a stable and level surface, or (2) securing or stabilizing
them.
Depending on the type of ladder and the conditions of use, securing
or stabilizing portable ladders may be as simple as using swivel or
rubber ladder feet, or may involve more complex procedures such as
using ladder levelers to equalize side rail support. The A14.1-2007 and
A14.2-2007 standards provide useful guidance about methods employers
can use to secure portable ladders, including foot ladder boards and
similar devices.
Final paragraph (c)(4) does not carry forward language in existing
Sec. 1910.25(d)(2)(iii) requiring that the top rest for portable
ladders be reasonably rigid and have ample strength to support the
supplied load. OSHA believes final paragraph (c)(10) adequately
addresses the hazard, so the language in the existing rule is no longer
needed. The final rule requires placing the bottom and top of ladder
side rails on a stable and level surface, or securing and stabilizing
the ladder. Unless the employer addresses the stability of both ends of
the ladder, the ladder is not safe for workers to use.
Final paragraph (c)(4) is almost identical to OSHA's construction
ladder standard (Sec. 1926.1053(b)(6)), and is consistent with OSHA's
maritime ladder standards (Sec. Sec. 1915.72(a)(3); 1917.119(f)(8);
and 1918.24(j)(1) and (2)). The final rule also is consistent the A14
portable ladder standards (A14.1-2007, Section 8.3.4; and A14.2-2007,
Section 8.3.4). OSHA did not receive any comments on the proposed
provision.
Final paragraph (c)(5), like the existing and proposed rules,
requires that employers ensure workers do not use portable single-rail
ladders. OSHA's construction ladder standard (Sec. 1926.1053(b)(19)),
which also prohibits using single-rail ladders, defines them as ``a
portable ladder with rungs, cleats, or steps mounted on a single rail
instead of the normal two rails used on most other ladders'' (Sec.
1926.1050(b)). In the preamble to the final construction ladder rule,
OSHA said, ``Single-rail ladders are inherently difficult to use
because of their instability'' (55 FR 47681). OSHA believes that use of
single-rail ladders in general industry also poses the same hazards.
OSHA notes the prohibition in the existing rule has been in place since
OSHA adopted it in 1971 from national consensus standards available at
the time.
Although the A14.1-2007 standard does not contain the prohibition
on single-rail ladders that was in A14.1-1968, OSHA believes it is
clear that A14.1-2007 and A14.2-2007 do not cover or endorse their use.
The definition of portable ladder in both of these standards indicates
that they consist of ``side rails, joined at intervals by rungs, steps,
cleats or rear braces'' (A14.1-2007, Section 4; and A14.2-2007, Section
4). OSHA notes that A14.1-2007 and A14.2-2007 do not address single-
rail ladders, which indicates that their use is not generally accepted
industry practice.
Mr. Robert Miller, a senior safety supervisor with Ameren, opposed
the prohibition on single-rail ladders, arguing:
I don't feel it is necessary to eliminate what for an employer
may be the safest most feasible method of accessing another level of
the work area if that employer can show by training, performance and
history that the single rail ladder poses no greater hazard than
another method (Ex. 189).
Mr. Miller recommended that OSHA allow employers to demonstrate by
training, performance, and history that the single-rail ladder poses no
greater hazard than any other method (Ex. 189). However, Mr. Miller did
not provide a single example of when using a single-rail ladder would
be as safe, or safer, than using portable ladders with two side rails.
Accordingly, Mr. Miller did not convince OSHA to remove from the final
standard the prohibition on using single-rail ladders.
OSHA notes that, in an enforcement action, employers may raise the
affirmative defense of greater hazard. Employers raising this defense
have the
[[Page 82539]]
burden of proving that complying with the OSHA standard poses a greater
hazard to employees than complying with the standard and no alternative
means of employee protection are available. OSHA observes that Ameren
did not present any information or evidence that would meet this
burden.
Final paragraph (c)(6), like the proposal, adds a new requirement
that employers ensure a ladder is not moved, shifted, or extended while
a worker is on it. Moving, shifting, or extending an occupied ladder is
dangerous to workers, whether it is the worker on the ladder who moves
(``hops'') it or a worker on the ground who moves the ladder while a
worker is on the ladder. Moving, shifting, or extending an occupied
ladder could cause the worker to fall off the ladder or cause the
ladder to tip over. According to the A14.1-2007 standard, a leading
factor contributing to falls from portable ladders is movement of the
ladder (A14.1-2007, Section 8.1.5).
OSHA drew this provision from the construction ladder standard
(Sec. 1926.1053(b)(11)). The A14.1-2007 and A14.2-2007 standards also
prohibit ``relocating'' a ladder while a worker is on it (A14.1-2007,
Section 8.3.15; and A14.2-2007, Section 8.3.15). OSHA did not receive
any comments on the proposed provision.
Final paragraph (c)(7), consistent with the proposed rule, requires
that employers ensure ladders placed in locations where other
activities or traffic can displace them (e.g., passageways, doorways,
and driveways) are:
Secured to prevent accidental displacement (final
paragraph (c)(7)(i)); or
Guarded by a temporary barricade, such as a row of traffic
cones or caution tape, to keep activities or traffic away from the
ladder (final paragraph (c)(7)(ii)).
Final paragraph (c)(7) is consistent with the existing rule, which
requires that employers must not place ladders in front of doors unless
the door is blocked, locked, or guarded (Sec. 1910.25(d)(2)(iv)). OSHA
believes the final rule retains the flexibility of the existing rule
and identifies additional measures employers can use to prevent
activities and traffic from striking ladders that are near passageways,
doorways, or driveways, which may cause workers located on the ladders
in those areas to fall. For example, to prevent injury to workers while
they work on ladders by a doorway, employers can ``secure'' the area by
simply locking the door so no one can open it and strike the ladder, or
``guard'' the door using a temporary barricade of traffic cones or
caution tape. If the doorway is a required exit route (see 29 CFR part
1910, subpart E) that cannot be locked or blocked, the final rule
allows employers the flexibility to ``guard'' the doorway by posting a
monitor to control passage through the door.
Final paragraph (c)(7) is almost identical to OSHA's construction
ladder standard (Sec. 1926.1053(b)(8)). It also is consistent with
A14.1-2007 (Section 8.3.12) and A14.2-2007 (Section 8.3.12).
Final paragraph (c)(8) requires that employers ensure that
employees do not use the cap, if equipped, and the top step of a
stepladder as steps. The purpose of final paragraph (c)(8) is to
clarify that the existing and proposed rules, which state that
employers must not use the ``top of a stepladder,'' includes both the
top step of the stepladder and top cap of the stepladder. Using either
surface as a step may decrease the ladder's stability and cause it to
fall over, injuring the worker.
Final paragraph (c)(8) is almost identical to OSHA's construction
ladder standard (Sec. 1926.1053(b)(13)), and is consistent with both
A14.1-2007 (Section 8.3.2(1)) and A14.2-2007 (Section 8.3.2(1)). OSHA
did not receive any comments on the proposed provision.
Final paragraph (c)(9) requires that employers ensure portable
ladders used on slippery surfaces are secured and stabilized. For the
purposes of this paragraph, slippery surfaces include, but are not
limited to, environmental (e.g., rain, snow, ice) and workplace
conditions (e.g., oil, grease, solvents). When any of these conditions
make walking-working surfaces slippery, it is important that employers
secure and stabilize ladders to prevent displacement, which could cause
workers to fall. Final paragraph (c)(9) is a companion provision to
final paragraph (c)(4), which requires that employers ensure portable
ladders are used only on stable and level surfaces unless they are
secured or stabilized to prevent displacement.
The final rule gives employers flexibility in selecting measures to
secure or stabilize ladders that they use. Consistent with OSHA's
construction ladder standard (Sec. 1926.1053(b)(7)), in appropriate
situations employers may use ladders equipped with slip-resistant feet
to secure and stabilize them on slippery surfaces. However, employers
may not be able to rely on the use of ladders with slip-resistant feet
in all cases where surfaces are slippery. In some conditions it may be
necessary for employers to take additional or other measures, such as
lashing, to secure and stabilize portable ladders. For example, the
construction ladder standard specifies that slip-resistant feet shall
not be used as a substitute for holding a ladder that is used upon
slippery surfaces including, but not limited to, flat metal or concrete
surfaces that are constructed so they cannot be prevented from becoming
slippery (Sec. 1926.1053(b)(7)).
OSHA notes the final rule covers all portable ladders while the
proposed rule only would have applied the requirement to portable
ladders that are not self-supporting. OSHA revised the final rule for
two reasons. First, although under final paragraph (c)(4) OSHA
considers slippery surfaces to be unstable for all types of portable
ladders, the Agency is expressly applying final paragraph (c)(9) to all
portable ladders to make sure the hazard is clearly addressed. For
example, self-supporting ladders that are not equipped with slip-
resistant feet can move or slide in slippery conditions, which can
cause the worker to fall off the ladder. The revision ensures that the
final rule protects workers from this hazard.
Second, the revision of final paragraph (c)(9) makes the provision
consistent with the construction ladder standard, which applies to all
ladders (Sec. 1926.1053(b)(7)). Applying final paragraph (c)(9) to all
portable ladders also makes the final rule consistent with A14.1-2007
(Section 8.3.4) and A14.2-2007 (Section 8.3.4), which address all wood
and metal portable ladders, as well as Section 6(b)(8) of the OSH Act
(29 U.S.C. 655(b)(8)). Section 6(b)(8) specifies that whenever an OSHA
standard differs substantially from an existing national consensus
standard, the Agency must explain why the adopted rule better
effectuates the purposes of the OSH Act. OSHA believes the revised
provision will protect all workers using any type of portable ladder,
and therefore best effectuates the OSH Act. OSHA did not receive any
comments on the proposed provision.
Final paragraph (c)(10), like both the existing and proposed rules,
requires that employers ensure that employees place the top of non-
self-supporting ladders so that both side rails are supported, unless
the ladders are equipped with single support attachments. Final
paragraph (c)(10) revises the existing rule (Sec. 1910.26(c)(3)(iv))
by adding the term ``non-self-supporting'' to clarify that it is non-
self-supporting ladders that need to be supported before workers
attempt to use them. Self-supporting ladders must not be used as non-
self-supporting
[[Page 82540]]
ladders (see final paragraph (b)(8); see also, A14.1-2007, Section
8.3.5)). The final rule is identical to OSHA's construction ladder
standard (Sec. 1926.1053(b)(10)), and is consistent with both A14.1-
2007 (Section 8.3.5) and A14.2-2007 (Section 8.3.5). OSHA did not
receive any comments on the proposed provision.
Final paragraph (c)(11), like the existing and proposed rules,
requires that employers ensure portable ladders used to gain access to
an upper landing surface have side rails that extend at least 3 feet
above the upper landing surface. OSHA believes that retaining the
existing requirement is important because transitioning from ladders to
upper landing surfaces is hazardous to workers. Requiring the ladder
side rails to extend 3 feet above the upper landing surface ensures
that workers have adequate support and hand holds so they can access
the upper landing surface safely. OSHA's construction ladder standard
(Sec. 1926.1053(b)(1)), A14.1-2007 (Section 8.3.10), and A14.2-2007
(Section 8.3.10) also require that portable ladders extend 3 feet above
the upper landing surface.
OSHA received one comment on the proposal. Ellis Fall Safety
Solutions (Ex. 329 (1/21/2011, p. 260)) said OSHA should recognize
attaching extensions onto the end of side rails as an acceptable means
to comply with the 3-foot extension requirement. In the proposal, OSHA
noted that employers may use after-market ladder extensions to increase
the length of a ladder to meet proposed paragraph (c)(11), provided:
The after-market rail extensions ``are securely attached
(that is, secured to the extent necessary to stabilize the extension
and not expose the employee to a falling hazard from the extension's
displacement)''; and
The ladder to which the after-market rail extensions is
attached is ``specifically designed for the application'' in accordance
with proposed paragraph (c)(14).
OSHA said that side-rail extensions that meet these requirements
``would be considered part of the ladder itself'' (75 FR 28877). In
2005, OSHA permitted use of after-market rail extensions under the
construction ladder standard if the ladders meet the requirements above
(see letter to Mr. Bruce Clark, president of American Innovations
Corporation, December 22, 2005).\20\ Based on the record as a whole,
OSHA concludes that employers may use after-market rail extensions to
meet the requirement of final paragraph (c)(11), provided that the
ladders meet these requirements.
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\20\ OSHA letter to Mr. Bruce Clark available at: http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_id=25177.
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Final paragraph (c)(12), like proposed paragraph (c)(13), requires
that employers not use ladders and ladder sections tied or fastened
together to provide added length unless the ladder design specifically
permits such use. The purpose of the final paragraph is to prevent the
use of unsafe rigging methods and to use ladders only as they were
intended. Ladders gerry-rigged to provide longer lengths are not likely
to be as strong and stable as ladders designed to reach such heights.
Limiting fastening together ladders and ladder sections to those
``specifically designed for such use'' means that the designer
developed both the ladders and any mechanism used to connect them
specifically to achieve greater length. The final rule revises existing
Sec. 1910.26(c)(3)(v), which specifies that the manufacturer must
equip the ladders and ladder sections with necessary hardware fittings,
if the manufacturer endorses allowing such ladder extensions, to ensure
that the requirement covers both manufactured and job-made ladders and
ladder sections. Therefore, under the final rule the ladder designer,
regardless of whether employed by the employer, a manufacturer, or
other company, must develop the ladder or ladder section specifically
for the purpose of fastening them together to extend the length of the
ladder or the employer must not fasten the ladder or ladder sections
together. Final paragraph (c)(12) is consistent with existing Sec.
1910.25(d)(2)(ix), A14.1-2007 (Section 8.3.11), and A14.2-2007 (Section
8.3.11).
Final paragraph (c)(13) retains the language in existing Sec.
1910.25(d)(2)(v), which prohibits placing ladders on boxes, barrels, or
other unstable bases to obtain additional height. The proposed rule
(proposed paragraph (c)(14)) prohibited employers from increasing the
reach of ladders and ladder sections by any means not permitted
specifically by the design of the ladders. After further analysis, OSHA
believes the language in the existing rule is clearer and easier to
understand than the proposed language. The language also is the same as
A14.1-2007 (Section 8.3.4) and A14.2-2007 (Section 8.3.4).
For the purposes of final paragraph (c)(13), unstable bases include
surfaces such as vehicles, truck flatbeds, scaffolds, and stairs. OSHA
received one comment on the proposed provision. Southern Company (Ex.
192) asked whether paragraph (c)(13) prohibited the use of ladder-
leveling devices that extend the reach of the ladder. Final paragraph
(c)(12) addresses fastening together ladders and ladders sections.
However, OSHA does not consider ladder-leveling devices to be ladders
or ladder sections. Rather they are devices attached to ladder side
rails and allow for independent adjustment of the rails to ensure the
ladder is level. Like the A14 standards, OSHA considers ladder-leveling
devices to be ``ladder accessories . . . that may be installed on or
used in conjunction with ladders'' (A14.1-2007, Section 1.1; and A14.2-
2007, Section 1.1). Although ladder-leveling devices may be temporary
or permanent attachments to the ladder, OSHA does not consider ladder-
leveling devices to be ``part of the ladder itself'' (75 FR 28877).
Therefore, final paragraph (c)(13) does not apply to ladder-leveling
devices, even if they increase the length of the ladder.
That said, other provisions in Sec. Sec. 1910.22 and 1910.23
(e.g., final paragraphs (b)(8) and (c)(4)) are applicable when
employers use ladder-leveling devices. For example, paragraph (b)(8)
mandates that employers use ladders only for their intended purpose.
OSHA believes that employers are using ladders for their intended
purpose only when the design of the accessories attached to, or used in
conjunction with, the ladders permit such use. OSHA notes that there
are many after-market ladder devices that employers may attach to, or
use in conjunction with, ladders. Many of these devices, including
ladder-leveling devices, can help to make ladders safer for workers to
use. OSHA is not prohibiting the use of ladder accessories that can
make ladders safer for workers to use. However, after-market add-ons
must meet the standard's requirements. That is, when in use, the
additional device must not reduce the ladder's strength or stability,
and employers must use them only for their designed purpose. Although
allowed, OSHA cautions employers against using job-made devices unless
a professional engineer designed and certified them. OSHA notes that
the Agency does not approve or endorse specific products.
Paragraph (d)--Fixed Ladders
Final paragraph (d) establishes requirements that apply to fixed
ladders, in addition to the requirements in final paragraph (b). The
final rule defines ``fixed ladder'' as a ladder, with side rails or
individual rungs, that is permanently attached to a structure, building
or equipment (Sec. 1910.21(b)). Fixed ladders do not include ship
stairs, stepbolts, or manhole steps.
Final paragraph (d)(1), like the proposed rule, establishes a
[[Page 82541]]
performance-based provision requiring that employers ensure any fixed
ladder a worker uses is capable of supporting the maximum intended
load. As discussed in Sec. 1910.22, and above in this section,
``maximum intended load'' means ``the total load (weight and force) of
all employees, equipment, vehicles, tools, materials, and loads the
employer reasonably anticipates to be applied to a walking-working
surface'' (Sec. 1910.21(b)).
The performance-based language in final (d)(1) replaces the
detailed specification requirements in the existing rules (Sec.
1910.27(a)(1)(i) through (iv) and (a)(2)). OSHA requested comment on
whether the Agency should retain the specification requirements in
existing Sec. 1910.27(a)(1), but did not receive any comments.
OSHA did not adopt proposed paragraph (d)(2) as a companion to
proposed paragraph (d)(1). Proposed paragraph (d)(2) required that
employers ensure fixed ladders installed on or after 150 days after
issuing the final rule meet specific design, construction, and
maintenance requirements, including supporting two 250-pound live
loads. The existing rule requires that fixed ladders support a single
concentrated 200-pound load (Sec. 1910.27(a)(1)). After additional
analysis, OSHA decided to adopt proposed paragraph (d)(1), and not
retain existing Sec. 1910.27(a) or adopt proposed paragraph (d)(2).
First, OSHA believes the maximum load requirement in final paragraph
(d)(1) is as safe as, or more protective than, the existing and
proposed rules. Final paragraph (d)(1) requires that employers ensure
that a fixed ladder meets the maximum load that the designer
specifically established for that particular fixed ladder. OSHA
believes that following the load requirement established for a
particular ladder is at least as safe as a general specification (200
or 250 pounds) applied to all fixed ladders.
Second, OSHA believes the performance-based approach in final
paragraph (d)(1) is easier to understand and follow than the minimum
weight specifications in the existing and proposed rules. In addition,
the final rule gives employers greater flexibility in selecting and
using fixed ladders. OSHA notes that Ameren (Ex. 189), among other
commenters, supported the use of performance-based language for this
and other provisions in the final rule.
Third and finally, not adopting the proposed rule, which had an
effective date 150 days after publication of the final rule, addresses
commenters' concerns that that OSHA failed to give adequate lead-in
time to come into compliance with the new requirement (Exs. 189; 192).
Final paragraph (d)(2), like proposed paragraph (d)(3), requires
that employers ensure the minimum perpendicular distance from the
ladder to the nearest permanent object in back of the ladder is 7
inches. The final rule requires that this distance be measured from the
centerline of the fixed ladder steps and rungs or grab bars, or both,
to the object in back of the ladder (e.g. wall). OSHA believes the 7-
inch minimum will ensure that workers have adequate space to get a safe
foothold on fixed ladders. Final paragraph (d)(2) also includes an
exception for elevator pit ladders. For these ladders, the employer
must ensure that the minimum perpendicular distance is 4.5 inches.
Final paragraph (d)(2), like the proposal, revises the existing
rule (Sec. 1910.27(c)(4) and (5)) in several ways. First, the final
rule replaces the existing 4-inch minimum perpendicular distance for
grab bars with a 7-inch minimum clearance. To ensure worker safety
while they climb fixed ladders and transition to upper landing
surfaces, OSHA believes that the minimum perpendicular distance for
grab bars needs to be the same as the minimum perpendicular distance
specified for ladder rungs and steps.
Second, final paragraph (d)(2) eliminates an exception from the 7-
inch clearance requirement for ``unavoidable obstructions'' (Sec.
1910.27). OSHA stated in the preamble to the final construction ladder
standard that ``the minimum clearance requirement is necessary,
regardless of any obstructions, so that employees can get safe
footholds on ladders'' (55 FR 47675).
Third, final paragraph (d)(2) adds a new exception that reduces the
minimum perpendicular clearance in elevator pits to 4.5 inches. OSHA
drew this exception from the construction ladder standard (Sec.
1926.1053(a)(13)). The exception is consistent with the ANSI/ASME
A17.1-2010, Safety Code for Elevators and Escalators (Section
2.2.4.2.4) (Ex. 380). Generally, space in elevator pits is restricted,
and it may not be possible to have a 7-inch clearance. In the preamble
to the construction ladder standard, OSHA said the exception for
elevator pit ladders was appropriate because elevator shafts generally
are secure from unauthorized access (55 FR 47675). As such, only
workers who have the required equipment and fall protection training
would be accessing the elevator pit (55 FR 47675). Under the final
rule, employers must train each worker in the proper use of equipment,
including fixed ladders, before permitting any worker to use the
equipment (Sec. 1910.30(b)(1)).
One of OSHA's goals in revising the existing rule (Sec.
1910.27(c)(4)) was to make the final rule consistent with OSHA's
construction ladder standard, and final paragraph (d)(2) is almost the
same as that rule (Sec. 1926.1053(a)(13)). The construction standard
also contains language specifically indicating that the required 7-inch
clearance also applies to obstructions. In addition, the final rule is
consistent with the 7-inch minimum perpendicular distance in existing
Sec. 1910.27(c)(4) and A14.3-2008 (Section 5.4.2.1).
OSHA received one comment from Southern Company (Ex. 192). They
asked to grandfather in the existing requirement because they have many
fixed ladders and ``[r]edesigning or moving any of these ladders to
avoid these obstructions could be expensive or in some cases
infeasible.'' OSHA does not believe that grandfathering is necessary.
The Agency believes the vast majority of fixed ladders currently in use
comply with the final requirement because the final rule reflects
requirements in place under ANSI A14.3 since 1974. In addition, OSHA's
construction standard has required the same clearance since the Agency
adopted it in 1994.
Final paragraphs (d)(3) through (8) establish requirements for
ladder extension areas to ensure that workers are able to transition
safely from the fixed ladder to the landing surface. In particular,
several of the provisions apply to through and side-step ladders. The
A14.3-2008 standard defines through ladders as rail ladders that
require a worker getting off to step through the ladder to reach the
landing (A14.3-2008, Section 3). That standard also defines side-step
ladders as rail ladders that require workers getting off at the top to
step sideways from the ladder to reach the landing (A14.3-2008, Section
3).
Final paragraph (d)(3), like the existing (Sec. 1910.27(c)(5)) and
proposed rules, requires that employers ensure grab bars on the
climbing side do not protrude beyond the rungs of the ladder they
serve. The final rule defines grab bars as individual vertical or
horizontal handholds that provide access above the ladder height (Sec.
1910.21(b)). Grab bars that protrude beyond the rungs of the ladder can
be hazardous because they make it more difficult to climb and
transition to landing surfaces. To illustrate, having the grab bars
protrude further than the ladder would put the worker at an angle
greater than 90 degrees and make climbing and holding
[[Page 82542]]
on more difficult, which makes a fall more likely. OSHA did not receive
any comments on the proposed provision.
Final paragraph (d)(4), like the proposed rule, establishes
requirements for through and side-step ladders, including those ladders
used on buildings with parapets. The final rule requires that employers
ensure the side rails of through or side-step ladders extend 42 inches
above the top of the access level or platform served by the ladder.
Final paragraph (d)(4) also adds language specifying what
constitutes the ``access level'' for through and side-step ladders on
buildings that have parapets. When a parapet has an opening that
permits passage through it (i.e., through ladder), the final rule
specifies that the access level is the roof (final paragraph
(d)(4)(i)). For parapets without such an opening (i.e., side-step
ladders), the final rule specifies the access level is the top of the
parapet (final paragraph (d)(4)(ii)). OSHA added this language to
clarify the Agency's intent that workers must have sufficient handholds
at least 42 inches above the highest level on which they will step when
reaching the access level, regardless of the location of the access
level (i.e., roof or top of parapet). The language also makes the final
rule consistent with Sec. 1926.1053(a)(24) and A14.3-2008 (Section
5.3.2.1). OSHA did not receive any comments on the proposed provision.
Final paragraph (d)(5), like the existing (Sec. 1910.27(d)(3)) and
proposed rules, specifies that employers ensure that there are no steps
or rungs on the portion of the through ladder extending above the
access level. It is obvious that this requirement is necessary to allow
workers to pass the ladder and step onto the upper landing surface. The
final rule is the same as OSHA's construction ladder standard (Sec.
1926.1053(a)(25)) and A14.3-2008 (Section 5.3.2.2).
In addition, final paragraph (d)(5), like the proposed rule, also
requires flared extensions of the side rails above the access level to
provide clearance of not less than 24 inches and not more than 30
inches. The final rule increases the existing clearance width (from 18
to 24 inches) between the side rails. OSHA believes the additional
clearance will help to ensure that workers equipped with personal fall
protection systems, tools, and other items have adequate space to
negotiate the pass-through area and reach the upper landing safely. The
increased clearance width makes the final rule consistent with OSHA's
construction standard (Sec. 1926.1053(a)(25)) and A14.3-2008 (Section
5.3.2.2).
Final paragraph (d)(5) adds a new clearance width requirement for
through ladders equipped with ladder safety systems. In those cases,
the final rule requires that employers ensure the clearance between
side rails of the extensions does not exceed 36 inches. The new
provision makes the final rule consistent with OSHA's construction
ladder standard (Sec. 1926.1053(a)(25)). OSHA did not receive any
comments on the proposed provision.
Final paragraph (d)(6), like the proposed rule, adopts a
performance-based revision of the existing rule for side-step ladders
(Sec. 1910.27(d)(3)). Accordingly, the final rule requires that
employers ensure the side rails, rungs, and steps of side-step ladders
be continuous in the extension. The existing rule, by contrast,
specifies that the landings of side-step or off-set fixed ladder
sections have side rails and rungs that extend to the next regular rung
above or beyond the 42-inch minimum extension. OSHA believes the
performance-based revision makes the final rule easier to understand
and follow. The final rule is consistent with OSHA's construction
standard (Sec. 1926.1053(a)(24)) and A14.3-2008 (Section 5.3.2.3).
Final paragraphs (d)(7) and (8) specify criteria for grab bars.
Final paragraph (d)(7), like the proposed rule, requires that employers
ensure grab bars extend 42 inches above the access level or landing
platforms of the ladder, which is the same height required for side
rails in the extension area of through and side-step ladders (see final
paragraph (d)(4)). Final paragraph (d)(7) revises and clarifies the
existing rule (Sec. 1910.27(d)(4)), which states that grab bars ``be
spaced by a continuation of the rung spacing when they are located in
the horizontal position,'' and have the same spacing as ladder side
rails when located in the vertical position. The final rule identifies,
more clearly and exactly, the required location (i.e., above the access
level or platform) and height (i.e., 42 inches) of the grab bars. OSHA
believes that employers will find the final rule easier to understand
and follow.
OSHA drew the language in final paragraph (d)(7), in part, from its
construction ladder standard (Sec. 1926.1053(a)(27)) and A14.3-2008
(Sections 5.3.3.1 and 5.3.3.2). The final rule expands application to
grab bars on all fixed ladders; OSHA's construction ladder standard and
A14.3-2008 only apply to individual-rung ladders. Also, the final rule
does not include the exception in OSHA's construction standard and
A14.3-2008 for manhole steps, covers, and hatches because manhole steps
are not considered ladders in this rule and are covered in a separate
section (final Sec. 1910.24). OSHA did not receive any comments on the
proposed provision.
Final paragraph (d)(8), like the existing (Sec. 1910.27(d)(4)) and
proposed rules, requires that employers ensure the minimum size (i.e.,
cross-section or diameter) of the grab bars are the same size as the
rungs on that ladder. The final rule clarifies the existing rule by
specifying that the grab bars and rungs of fixed ladders be the same
size (diameter). The final rule is consistent with A14.3-2008 (Section
5.3.3.3).
OSHA received one comment about grab bars. Nigel Ellis, Ellis
Safety Solutions, LLC (Ex. 155), recommended that the final rule
require horizontal grab bars, especially if the length of vertical grab
bar exceeds 6 inches. He pointed to a study (Young et al., ``Hand-hold
Coupling: Effect of Handle Shape, Orientation, and Friction on
Breakaway Strength,'' 51 Human Factors 705, October 2009) showing that
breakaway strength (i.e., the maximum force that can be exerted on an
object before it pulls away or slips from the grasp of the hand) was
greatest for fixed horizontal cylindrical-shaped bars (Ex. 344). Based
on that study, Mr. Ellis said that it would be more likely that workers
could arrest a fall by grabbing a horizontal, rather than a vertical,
grab bar. He also said, ``It has been shown that vertical grab bars are
a sliding element that prevents an adequate grip to stop a fall,'' and
concluded that ``if a vertical grab bar exceeds 6 inches vertically
then the hand-sliding fall is unstoppable'' (Ex. 344).
OSHA agrees that horizontal bars provide the possibility of
stronger grips than vertical ones in the event of a fall from a ladder
when a ladder safety system or a personal fall protection system is not
taken into account. However, horizontal grab bars do not provide the
level of protection from falls that ladder safety systems and personal
fall protection systems provide. Given that ladder safety systems and
personal fall protection systems will increasingly protect workers who
climb ladders from falling, OSHA does not believe is it necessary at
this point to require installation of horizontal grab bars when any
vertical grab bar exceeds 6 inches.
Final paragraph (d)(9), like the proposed rule, establishes two
requirements for ladders that terminate at hatch covers. First, the
final rule requires that employers ensure that the hatch cover opens
with sufficient clearance to provide easy access to or from the ladder
(see final paragraph (d)(9)(i)). Second, the final rule requires
[[Page 82543]]
that employers ensure counterbalanced hatch covers open at least 70
degrees from the horizontal (see final paragraph (d)(9)(ii)). In
essence, this provision defines in objective terms (70 degrees) what
constitutes ``sufficient clearance,'' as used in the existing rule
(Sec. 1910.27(c)(7)).
Final paragraph (d)(9), like the proposal, revises the existing
rule in two ways. First, the final rule increases to 70 degrees the
angle to which counterbalanced hatch covers must open. The existing
rule only requires that hatch covers open a minimum of 60 degrees, but
also specifies that the minimum distance from the centerline of the top
rung be at least 24 inches for ladders with ``offset wells,'' and at
least 30 inches for ``straight wells.'' OSHA believes that increasing
the opening to 70 degrees will ensure that the space between the top
rung and hatch provides adequate clearance regardless of what type of
fixed ladder is used.
Second, the final rule replaces the specification requirement in
the existing rule with performance-based language. The performance-
based language ensures that the final rule provides a level of worker
safety that is as great as or greater than the existing rule, but gives
employers the flexibility to determine how counterbalanced hatch covers
will open to 70 degrees. The performance-based language also makes
final paragraph (d)(9) clearer and easier to follow than the existing
rule. The final rule is consistent with A14.3-2008 (Section 5.3.4.2).
OSHA notes that A14.3-2008 also includes language similar to the
specification language in the existing rule, but the language is only
advisory. OSHA did not receive any comments on the proposed provision.
Final paragraph (d)(10), like the existing (Sec. 1910.27(b)(1)(v))
and proposed rules, requires that employers ensure that the
construction of individual-rung ladders will prevent the worker's feet
from sliding off the ends of the rungs (Figure D-4 in regulatory text
illustrates). OSHA believes this requirement is essential because
individual-rung ladders do not have side rails to block the worker's
feet from sliding off the rung. Final paragraph (d)(10) is the same as
OSHA's construction industry standard (Sec. 1926.1053(a)(5)). OSHA did
not receive any comments on the proposed provision.
Final paragraph (d)(11), like the proposed rule, requires that
employers ensure workers do not use fixed ladders that have a pitch
greater than 90 degrees from the horizontal. A ladder that exceeds a
pitch of 90 degrees makes the ladder dangerous to climb because pitch
greater than 90 degrees would require climbers to exert considerable
extra force to maintain their grip on the ladder against the
gravitational force. The final rule revised the specification approach
in the existing requirements (Sec. 1910.27(e)(1) through (4)), and
replaces it with performance-based language. OSHA believes much of the
language in the existing rule continues to provide useful information
best included in compliance-assistance documents. OSHA did not receive
any comments on the proposed paragraph.
Final paragraph (d)(12), like the proposed rule, addresses step-
across distances for through and side-step ladders. Specifically, final
paragraph (d)(12)(i) requires that employers ensure the step-across
distance for through ladders is not less than 7 inches, and not more
than 12 inches, to the nearest edge of the structure, building, or
equipment accessed from the ladders, measured from the centerline of
the ladder. Final paragraph (d)(12)(ii) requires that employers ensure
the step-across for side-step ladders is at least 15 inches, but not
more than 20 inches, measured from the centerline of the ladder to the
nearest point of access on the platform edge.
The final rule, like the proposal, revises the existing rule in
Sec. 1910.27(c)(6) in several ways. First, the final rule establishes
specific step-across distances for each through and side-step ladder
(Sec. 1910.27(c)(6)). The existing rule establishes a single step-
across distance applicable to all fixed ladders. Compared to the
existing rule, OSHA believes the final rule more appropriately tailors
the step-across distances to the type of ladder used, which improves
worker safety.
Second, final paragraph (d)(12) revises the existing step-across
distance (i.e., not less than 2.5 inches and not more than 12 inches)
to make transitioning from the ladder to the upper landing surface
safer and consistent with other provisions in the final rule. OSHA
believes that a 2.5-inch step-across distance could conflict with the
7-inch minimum perpendicular clearance requirement in final paragraph
(d)(2). The 7-inch clearance requirement is necessary to ensure that
workers will have a safe foothold on the ladder. If the existing rule
inadvertently results in workers having an inadequate foothold on the
top of the ladder, it could increase the worker's chance of falling.
Third, the final rule does not retain the companion provision in
the existing rule (Sec. 1910.27(d)(1)) that requires employers to
provide a landing platform if the step-across distance is greater than
12 inches. OSHA believes that the final rule already addresses this
issue; therefore, it is not necessary to retain the requirement.
Final paragraph (d)(12) requires that employers measure step-across
distance from the centerline of the ladder to the ``nearest edge of the
structure, building, or equipment.'' Thus, in the final rule, the
nearest edge of a structure may be a landing platform. Final paragraph
(d)(12) is consistent with OSHA's construction ladder standard (Sec.
1926.1053(a)(16)) and A14.3-2008 (Section 5.4.2.2). OSHA did not
receive any comments on the proposed provision.
Final paragraph (d)(13) addresses fixed ladders that do not have
cages or wells. Final paragraph (d)(13)(i), like the existing (Sec.
1910.27(c)(2)) and proposed rules, requires that employers ensure
ladders without cages or wells have a clear width of at least 15 inches
on each side of the ladder centerline to the nearest object. Having at
least a 15-inch minimum clearance on the ladder is necessary to provide
adequate clearance to climb the ladder and prevent damage to the
ladder. Figure D-2 illustrates this requirement, which is consistent
with OSHA's construction ladder standard (Sec. 1926.1053(a)(17)) and
A14.3-2008 (Section 5.4.3.1).
Final paragraph (d)(13)(ii), like the proposed rule, requires that
employers ensure there is a minimum perpendicular distance of 30 inches
from the centerline of the steps or rungs to the nearest object on the
climbing side of the ladder. The final rule, like the proposal, revises
the existing requirement in Sec. 1910.27(c)(1) in three ways. First,
the final rule replaces the existing requirement that the pitch of the
ladder be the basis of the minimum perpendicular distance (i.e., 36
inches for 75-degree pitch ladder and 30 inches for 90-degree pitch
ladders) with a single, minimum clearance, regardless of the ladder
pitch. OSHA believes that the revised rule will not pose problems for
employers because the pitch of virtually all fixed ladders is 90
degrees. As such, the final rule is consistent with the existing rule.
The revision in the minimum perpendicular clearance makes the final
rule consistent with OSHA's construction ladder standard (Sec.
1926.1053(a)(14)) and A14.3-2008 (Section 5.4.1.1).
Second, the final rule provides an exception to the minimum
perpendicular clearance requirement ``[w]hen unavoidable obstructions
are encountered.'' The final rule allows a reduction of the minimum
clearance to 24 inches in those cases, provided that
[[Page 82544]]
employers install deflector plates. The deflectors will protect workers
on fixed ladders by guiding them around unavoidable obstructions.
Adding this exception makes the final rule consistent with OSHA's
construction ladder standard (Sec. 1926.1053(a)(15)) and A14.3-2008
(Section 5.4.1.3).
Third, final paragraph (d)(13) recasts the existing rule so it is
more performance-based. OSHA believes this change makes the final rule
easier to understand and follow than the existing rule.
OSHA received one comment on the proposed provision. Ameren
Corporation stated:
As long as the fixed ladders in any facility comply with the
current ``inches clearance per pitch'' requirements, they should be
grandfathered in due to the potential financial impact and minimum
difference in clearance as well as any history of no apparent
difficulties with head clearance by way of reviewing incident
reporting trends (Ex. 189).
OSHA does not agree with Ameren that the revisions to the minimum
perpendicular clearance on the climbing side of fixed ladders will have
any significant financial impact on employers who are in compliance
with the existing rule. As mentioned earlier, almost all fixed ladders
have a 90-degree pitch, which means that they must already meet the 30-
inch clearance requirement of the existing rule. Therefore, the vast
majority of employers would not have to replace their ladders since
they are in compliance with the existing provision.
Final paragraph (d) includes an informational note stating that
Sec. Sec. 1910.28 and 1910.29 establish, respectively, the duty to
provide fall protection for workers using fixed ladders and the
mandatory criteria for that fall protection.
Paragraph (e)--Mobile Ladder Stands and Mobile Ladder Stand Platforms
Final paragraph (e) establishes requirements that apply to mobile
ladder stands and mobile ladder stand platforms (mobile ladder stands
and platforms). These requirements apply to mobile ladder stands and
platforms in addition to the requirements specified by paragraph (b) of
this section that cover all ladders.
Final paragraph (e) is a performance-based revision of the design
and use requirements in the existing rule (Sec. 1910.29(a) and (f)),
and consistent with the design requirements in the ANSI standard
(A14.7-2011). Therefore, consistent with the requirement in the OSH Act
that OSHA express standards ``in terms of objective criteria and of the
performance desired,'' final paragraph (e) does not incorporate the
testing requirements in either the existing OSHA rule or ANSI standard
(e.g., Sec. 1910.29(f)(5); A14.7-2011 (Section 5)).
For purposes of the final rule, final Sec. 1910.21(b) defines a
``mobile ladder stand'' as a ladder that:
Is mobile;
Has a fixed height;
Is self-supporting; and
Is designed for use by one worker at a time.
This paragraph of the final rule also specifies that mobile ladder
stands generally consist of:
Wheels or casters on a rigid base;
Steps (treads); and
A top step.
Mobile ladder stands also may have handrails. This definition is
consistent with both the existing OSHA rule and ANSI standard (Sec.
1910.21(g); A14.7-2011, Section 3). Although the final rule does not
identify what constitutes a ``top step,'' the ANSI standard defines the
term ``top step'' as ``[t]he uppermost flat surface of a ladder stand
upon which a person may stand and that has a front to back dimension of
not less than 9.5 inches or more than 32 inches and does not exceed 6.7
square feet in area'' (A14.7-2011, Section 3).
A ``mobile ladder stand platform,'' as defined in the final rule
(Sec. 1910.21(b)), is a mobile ladder stand with treads leading to one
or more platforms. Unlike the definition of mobile ladder stands, some
mobile ladder stand platforms may be designed for use by more than one
worker at a time.
Although the existing OSHA ladder rules for general industry do not
define or specifically address mobile ladder stand platforms, the final
definition is consistent with the ANSI standard (A14.7-2011, Section
3). The ANSI standard also defines a ``platform'' as ``[a]n elevated
surface for standing or working that is more than 6.7 square feet in
area, or more than 32 inches in depth and may be occupied by more than
one person'' (A14.7-2011, Section 3).
While the existing OSHA rule does not specifically address mobile
ladder stand platforms, many of the provisions in the existing rule
provide effective worker protection regardless of whether employees are
working on mobile ladder stands or mobile ladder stand platforms. Thus,
when appropriate, in the final rule OSHA applied provisions in the
existing rules to mobile ladder stand platforms as well as mobile
ladder stands.
One commenter raised general concerns about the design requirements
for mobile ladder stands and platforms:
Nearly all requirements are design and construction requirements
over which an employer would have minimal or no control.
Again, an employer would be relying primarily on third party
certification without any assurance that such reliance would be
recognized as a legitimate defense against OSHA citations (Ex. 368).
The commenter is correct that most of the general provisions in
proposed and final paragraph (e)(1) are equipment-design requirements.
This also applies to the existing OSHA rules, which have been in place
since 1973. Many other OSHA standards also require that employers
provide equipment designed, constructed, and maintained so it is safe
for their workers to use. In the years since OSHA adopted the existing
rules, no employers have raised concerns about being able to comply
with the design requirements. OSHA also believes that today, more than
40 years after it adopted the existing rules, virtually all mobile
ladder stands and platforms manufactured meet the design requirements
of the existing rules, as well as the ANSI standard.
OSHA, however, does not agree that employers have minimal or no
control over whether mobile ladder stands and platforms meet the design
requirements in the final rule. Employers are free to design and
construct their own equipment to the design requirements in OSHA
standards, and some employers do. For example, employers may build
their own mobile ladder stands and platforms if they need the units for
special purposes, or if the ladders must fit into unusual locations.
Employers also have control over the equipment they purchase. They
can evaluate, investigate, and even test potential equipment to ensure
that it meets OSHA requirements. They also can select equipment that a
recognized third party (e.g., Underwriters Laboratories) tests and
certifies as meeting the OSHA requirements. In addition, employers can
obtain the third-party testing information or reports to reassure
themselves that the equipment meets the requirements in the final rule.
Final paragraph (e)(1) establishes general design and use
requirements that apply to both mobile ladder stands and mobile ladder
stand platforms. OSHA drew these general requirements from two sources:
(1) The existing rule (Sec. 1910.29); and (2) A14.7-2011.
Final paragraph (e)(1)(i), like the existing (Sec.
1910.29(a)(3)(ii)) and proposed rules, requires that employers ensure
that the minimum width of steps on mobile ladder stands and platforms
is 16 inches. This minimum-width requirement applies regardless of the
[[Page 82545]]
length (depth) of the top step of mobile ladder stands, which, pursuant
to A14.7-2011, may be up to 32 inches in depth or 6.7 square feet in
area. OSHA believes that this approach is generally consistent with the
ANSI standard, which requires that steps, including the top step, on
mobile ladder stands have a minimum width of 16 inches (A14.7-2011,
Section 4.3.1); for mobile ladder stand platforms, section 4.4.1 of A-
14.7-2011 requires a minimum step width of 16 inches.
OSHA believes that employers should not have any problem complying
with final paragraph (e)(1)(i). The existing OSHA and ANSI standards
have been in place for many years and OSHA believes the width of steps
on virtually all mobile ladder stands and platforms meet the ANSI
requirements, and, therefore, are in compliance with the final rule.
OSHA did not receive any comments on the proposal, and adopts the
provision as discussed.
Final paragraph (e)(1)(ii), like the existing (Sec.
1910.29(a)(3)(iv)) and proposed rules, requires that employers ensure
that steps and platforms of mobile ladder stands and platforms be slip
resistant. The final rule includes language, drawn from A14.7-2011,
that gives employers greater flexibility in complying with the slip-
resistance requirement. Final paragraph (e)(1)(ii) provides that
employers may meet the slip-resistance requirement by providing mobile
ladder stands and platforms where the slip-resistant surfaces either
are (1) an integral part of the design and construction of the mobile
ladder stand and platform, or (2) provided by a secondary process or
operation. For the purposes of this final rule, secondary processes
include things such as dimpling, knurling, shotblasting, coating,
spraying the walking-working surfaces, or adding durable slip-resistant
tape to steps and platforms.
In addition to providing more flexibility than the existing OSHA
requirements for meeting the slip-resistance requirement, OSHA believes
the final paragraph will help to ensure a level of protection that is
equivalent to or greater than the existing requirements. First, it
allows employers to select the types of slip resistance that will
provide the most effective protection for workers in the particular
workplace conditions in which employers use the unit. For example, in
outdoor, icy conditions, grated steps and platforms may provide better
slip resistance than steps and platforms with a sprayed-on finish.
Second, the new language also indicates that employers have both an
initial and continuing obligation to ensure that steps and platforms on
mobile ladder stands and platforms remain slip resistant (i.e., ``[t]he
steps . . . are slip resistant''). Accordingly, while the manufacturer
may apply the secondary slip resistance process initially, if the slip
resistance on steps of stands or platforms wears down or is in need of
repair, the final rule requires that employers treat those surfaces
with additional processes to restore their slip resistance. For
example, if slip-resistant tape comes off, the employer must replace
it. OSHA believes that employers should not have problems complying
with the final provision since slip-resistance processes and materials
are readily available in the marketplace. OSHA did not receive any
comments on the proposed provision, and adopts it as proposed.
Final paragraphs (e)(1)(iii) and (iv) establish strength and
stability requirements for mobile ladder stands and platforms to ensure
units are safe for workers to use. Final paragraph (e)(1)(iii), which
is almost identical to proposed paragraph (e)(1)(vi), requires that
employers ensure mobile ladder stands and platforms are capable of
supporting at least four times their maximum intended load. The
existing OSHA rule and ANSI standard also require that mobile ladder
stands be capable of supporting at least four times the ``design
working load'' or ``rated load,'' respectively (Sec.
1910.29(a)(2)(ii)(b); A14.7-2011, Section 4.2.1). Both standards have
been in place for many years, so OSHA believes that virtually all
mobile ladder stands and platforms manufactured and currently in use
already comply with the final rule.
Final paragraph (e)(1)(iv), which also is almost identical to
proposed paragraph (e)(1)(iii), requires that employers ensure wheels
and casters of mobile ladder stands and platforms under load are
capable of supporting: (1) their proportional share of four times the
maximum intended load, plus (2) their proportional share of the unit's
weight. OSHA believes this requirement is necessary to ensure that
mobile ladder stands and platforms are safe for workers to use. Unless
the wheels and casters can support both the proportional weight of the
mobile ladder stand or platform and the weight of the maximum intended
load placed on that unit, failure of the wheel(s) or caster(s) may
occur. If that happens, the stand or platform could become unstable and
the worker could fall off the unit and be injured or killed.
Final paragraph (e)(1)(iv) provides greater protection than the
existing OSHA rule in Sec. 1910.29(a)(4). The existing rule does not
require that wheels or casters be capable of supporting the weight of
the mobile ladder stand or mobile ladder stand platform, as well as the
weight of the load (e.g., worker, tools, equipment, and materials)
placed on it (Sec. 1910.29(a)(4)(i)). However, OSHA notes that the
final rule is almost identical to the ANSI standard (A14.7-2011,
Sections 4.3.7 and 4.4.8). As discussed above, the ANSI standard has
been in place for many years, so OSHA believes that virtually all
mobile ladder stand and platform wheels and casters manufactured and
currently in use already comply with the final rule.
In final paragraphs (e)(1)(iii) and (iv), OSHA replaced the term
``design working load'' in the existing OSHA rule with ``maximum
intended load'' (i.e., the total load of all employees, equipment,
tools, materials, and other loads the employer reasonably anticipates
to be applied to the mobile ladder stand or platform). While the
definition of ``maximum intended load'' in this final rule (see Sec.
1910.21(b)) is similar to the definition of ``design working load'' in
the existing rule (see Sec. 1910.21(g)(5)), using the term ``maximum
intended load'' in final paragraphs (e)(1)(iii) and (iv) makes these
paragraphs consistent with other provisions in the final rule that use
the term.
Finally, consistent with OSHA's goal to make the final rule
performance based, final paragraphs (e)(1)(iii) and (iv) do not
incorporate the testing requirements in either the existing OSHA rule
(Sec. 1910.29(f)(5)) or A14.7-2011 (Section 5). OSHA did not receive
any comments on either of the proposed requirements, and adopts final
paragraphs (e)(1)(iii) and (iv) as discussed above.
Final paragraph (e)(1)(v) establishes general requirements for
handrails on mobile ladder stand and platform steps (except for
handrails on top steps when paragraph (e)(2)(ii) applies). Final
paragraph (e)(1)(v) requires that employers ensure mobile ladder stands
and platforms have handrails when the height of the top step or
platform is 4 feet or higher above lower levels. Where handrails are
required, employers must ensure that the handrails have a vertical
height of at least 29.5 inches but not more than 37 inches, as measured
from the front edge of the step, unless specified elsewhere in the
section.
The purpose of the final paragraph (e)(1)(v) is to protect workers
from falling when they are climbing or standing on mobile ladder stands
and platforms. OSHA believes handrails are necessary to assist workers
as they are
[[Page 82546]]
climbing mobile ladder stands and platforms, and also provide a
handhold they can grab to steady themselves if they slip or start to
fall off the unit. In addition, handrails provide a necessary barrier
to prevent workers from falling off the side of steps and off the top
step or platform. To ensure that the barrier provides adequate
protection, OSHA notes that stands and platforms must have handrails on
both sides of the steps, including the top step and platform. On mobile
ladder stands, the handrail also must extend across the open back of
the top step.
The existing OSHA rule requires that mobile ladder stand steps have
handrails (a minimum of 29 inches high, measured vertically from the
center of the step) if the height of the top step was more than 5 feet
or 5 steps (Sec. 1910.29(f)(4)). However, the existing rule does not
specify the maximum height allowed for the handrails. In addition, the
existing rule does not contain a specific provision covering handrails
on mobile ladder stand platforms. The proposed rule, on the other hand,
included specific and separate handrails provisions for mobile ladder
stands and mobile ladder stand platforms (proposed paragraphs
(e)(2)(ii) and (e)(3)(ii)). In the final rule, OSHA consolidated those
proposed provisions into the general requirement in paragraph (e)(1)(v)
to reduce repetition and simplify the final rule.
The final rule provides greater protection than the existing OSHA
rule. The final rule requires that mobile ladder stands and platforms
have handrails where the top step height is at least 4 feet compared to
more than 5 feet or 5 steps in the existing rule. OSHA notes that the
ANSI standard (A14.7-2011, Sections 4.3.5 and 4.4.5) also requires that
handrails provide the same level of protection as the final rule.
Final paragraph (e)(1)(v), like the proposal (a note to proposed
paragraphs (e)(2)(ii) and (e)(3)(ii)), also allows alternatives to the
handrails requirement for ``special-use applications.'' In such
situations, the final rule permits employers to use removable gates or
non-rigid members (such as chains) instead of handrails on the top step
of mobile ladder stands and platforms. The alternative means of
compliance allows employers to remove the gates or chains when a work
task involves special-use application; however, employers must replace
the gates or chains (i.e., comply with the handrail requirement) when
they complete the special-use task. In a special use application, it is
important that the mobile ladder stand or platform is placed to
minimize the risk of falls. For example, when a gate needs to be
removed to place or remove objects from a shelf, the employer needs to
ensure that the unit is placed so there is no gap between the unit and
shelf that could result in a worker falling while performing the task.
OSHA believes this alternative method provides flexibility for
employers while reducing the exposure of workers to fall hazards under
these conditions. For the purposes of this provision, a special-use
application may include a situation in which permanent handrails block
or impede the movement of boxes, products, or materials from the ladder
stand or platform to shelves or other storage areas. The ANSI standard
also includes this alternative method (A14.7-2011, Sections 4.3.5,
4.3.6, 4.4.5, and 4.4.6). OSHA did not receive any comments on the
proposed provisions, and adopts them as consolidated and revised.
Final paragraph (e)(1)(vi), like the existing OSHA and proposed
rules (Sec. 1910.29(a)(3)(i) and (f)(2); proposed paragraph
(e)(1)(v)), requires that employers ensure the maximum work-surface
height of mobile ladder stands and platforms does not exceed four times
the shortest dimension of the base, without additional support. OSHA
believes this requirement is necessary to prevent units from tipping
over and injuring workers. Also consistent with the existing and
proposed rules, the final rule specifies that when mobile ladder stands
and platforms need to reach greater heights, the employer must provide
additional support such as outriggers, counterweights, or comparable
means to stabilize the base and prevent the unit from overturning. The
ANSI standard includes the same requirement (A14.7-2011, Section 5.2).
Final paragraph (e)(1)(vi) differs from the existing OSHA rule in
one respect: it does not incorporate the testing requirement in
existing Sec. 1910.29(f)(2) for calculating the maximum base length,
opting instead to adopt a performance-based requirement. Similarly, it
does not incorporate the A14.7-2011 testing provisions. OSHA did not
receive any comments on the proposal, and adopts it with minor
editorial clarifications.
Final paragraph (e)(1)(vii), like proposed paragraph (e)(1)(iv),
requires that employers ensure wheels and casters on mobile ladder
stands and platforms are equipped with a system that will impede
horizontal movement when a worker is on the unit. OSHA drew the final
requirement from the ANSI standard (A14.7-2011, Sections 4.3.8 and
4.4.9); the existing OSHA rule does not contain a similar provision.
OSHA believes the requirement in final paragraph (e)(1)(vii) is
necessary to prevent accidental or inadvertent movement of a mobile
ladder stand or platform. If the stand or platform suddenly moves, it
may cause the worker to fall off the unit. Sudden movement also can
cause materials, equipment, and tools to fall off a mobile ladder stand
or platform and hit employees working in the immediate area. The phrase
``rigid and swivel'' has been removed from the proposed language
because it is unnecessary. In addition, OSHA added the phrase ``when an
employee is on a stand or platform'' to the proposed text to clarify
that it is acceptable that mobile ladder stands move at other times.
OSHA did not receive any comments on the proposed rule, and adopts it
as discussed.
Final paragraph (e)(1)(viii), like proposed paragraph (e)(1)(vii),
requires that employers ensure mobile ladder stands and platforms do
not move while workers are on them. The final rule will prevent workers
from falling from mobile ladder stands and platforms. Working on a
unit, particularly on the top step or platform, raises the unit's
center of gravity, causing the unit to become less stable. If somebody
moves the unit, intentionally or not, a worker on the unit could lose
his or her balance and experience a serious fall. The same consequences
could occur if a worker rides on a mobile ladder stand or platform when
somebody moves the unit to a new location in the workplace.
OSHA also drew this requirement from A14.7-2011 (Section 6.4)
because the existing rule does not contain a similar requirement. OSHA
did not receive any comments on the proposed rule, and adopted it as
proposed with minor editorial changes for clarity.
Final paragraph (e)(2) establishes design requirements for mobile
ladder stands that apply to mobile ladder stands in addition to the
general mobile ladder stand and platform requirements in final
paragraph (e)(1). As with the general requirements in final paragraph
(e)(1), OSHA carried forward most of the provisions in final paragraph
(e)(2) from its existing rule (Sec. 1910.29) or from A14.7-2011.
Final paragraph (e)(2)(i), like proposed paragraph (e)(2)(i),
establishes requirements for mobile ladder stand steps. The employer
must ensure that these steps:
Are uniformly spaced and arranged;
Have a maximum rise of 10 inches; and
Have a minimum depth of 7 inches.
The final rule also requires that the employer ensure the slope
(angle) of the
[[Page 82547]]
``step stringer'' to which the steps are attached is not more than 60
degrees from horizontal. A step stringer (also called a ``stile'' or
``siderail'') is the inclined structural member that supports the steps
(treads).
The requirements in final paragraph (e)(2)(i) are consistent with
the general requirements for ladders in final paragraph (b) of this
section. Final paragraph (b) also requires that ladder steps be
``parallel, level, and uniformly spaced'' (final paragraph (b)(1)) and
have steps spaced ``not less than 10 inches and not more than 14 inches
apart'' (final paragraph (b)(2))(see discussion of final paragraph (b)
above).
Final paragraph (e)(2)(i) differs from the existing OSHA rule
(Sec. 1910.29(f)(3)) in two respects. The final rule does not carry
forward the existing requirements to have (1) a 9-inch minimum rise for
mobile ladder stand steps, and (2) a minimum 55-degree slope for step
stringers. OSHA believes final paragraph (e)(2)(i) simplifies the rule
and provides greater compliance flexibility. Since the final rule is
virtually identical to the ANSI standard (A14.7-2011, Section 4.3.3),
OSHA also believes the revisions to the final rule do not compromise
worker protection. OSHA did not receive any comments on the proposed
rule, and adopted it with minor editorial revisions.
Final paragraph (e)(2)(ii), like proposed paragraph (e)(2)(iii) and
the ANSI standard (A14.7-2011, Section 4.3.6), establishes requirements
for mobile ladder stands with a top step height more than 10 feet above
lower levels. Final paragraph (e)(2)(ii) requires that employers ensure
these mobile ladder stands have handrails on three sides of the top
step. The employer must ensure that the handrail has a vertical height
of at least 36 inches. Also, top steps with a length (depth) of at
least 20 inches, front to back, must have midrails and toeboards.
The requirements in final paragraph (e)(2)(ii) provide additional
protection from falls and falling objects that are particularly
important when employees work on taller mobile ladder stands. To
protect workers from falls, final paragraph (e)(2)(ii) ensures that
workers have a handhold to grab onto while they are climbing or located
on the top step. In addition, final paragraph (e)(2)(ii) requires top
steps that are at least 20 inches in depth to be provided with a
midrail and toeboard. This protects adjacent workers from falling
objects when the top step becomes large enough for the possibility of
materials, tools, equipment, or other objects to be placed on the top
step. OSHA drew the requirements in final paragraph (e)(2)(ii) from the
ANSI standard (A14.7-2011, Section 4.3.6). The existing OSHA rule
(Sec. 1910.29(f)(4)) does not include any of these protections.
Although final paragraph (e)(2)(ii) is similar to proposed
paragraph (e)(2)(iii), it also differs in some respects. OSHA
reorganized the final paragraph so it is a plain-language provision.
OSHA believes that the reorganized provision in the final rule is
easier for employers to understand than the proposed provision.
Also, final paragraph (e)(2)(ii) contains two clarifications of the
proposed provision. First, final (e)(2)(ii) clarifies the handrail,
midrail, and toeboard requirements, stating that employers must provide
these protective structures on three sides of the top step. Although
OSHA believes that most employers understand that locating handrails,
midrails, and toeboards on three sides is necessary to provide adequate
protection to their workers, the final rule expressly clarifies this
requirement.
Second, a note to final paragraph (e)(2)(ii), like final paragraph
(e)(1)(v), incorporates an alternative method from the handrail and
midrail requirement for special-use applications. (See the explanation
of the exception for special-use applications in paragraph (e)(i)(v)
above.) OSHA did not receive any comments on the proposed provision,
and adopts it as revised.
Final paragraph (e)(2)(iii), like proposed paragraph (e)(2)(iv),
requires that employers ensure the standing areas of mobile ladder
stands are within the base frame. OSHA believes this requirement is
necessary to ensure the stability of mobile ladder stands. Keeping the
center of gravity within the base frame increases the stability of the
mobile ladder stand. This requirement reduces the potential for the
mobile ladder stand to tip when a worker is using it.
OSHA drew final paragraph (e)(2)(iii) from the ANSI standard
(A14.7-2011, Section 4.3.9) since the existing OSHA rule does not
include this requirement. Consistent with the goal of making the final
rule more performance based, OSHA did not adopt the stability-testing
requirements in the ANSI rule (A14.7-2011, Section 5). OSHA did not
receive any comments on the proposed provision, and adopts it as
proposed.
Employers must comply with the design requirements for mobile
ladder stand platforms specified by final paragraph (e)(3), as well as
the general requirements for mobile ladder stands and platforms in
final paragraph (e)(1). OSHA drew most of these requirements from
A14.7-2011. In addition, OSHA expanded the existing requirements on
mobile ladder stands in Sec. 1910.29 that apply to mobile ladder stand
platforms.
Final paragraph (e)(3)(i), like the proposed paragraph and final
paragraph (e)(2)(i), requires that employers ensure the steps of mobile
ladder stand platforms:
Are uniformly spaced and arranged;
Have a maximum rise of 10 inches; and
Have a minimum depth of 7 inches.
The final rule also requires that the employer ensure the slope (angle)
of the ``step stringer'' to which the steps are attached is not more
than 60 degrees from horizontal.
Final paragraph (e)(3)(i) differs from final paragraph (e)(2)(i) in
one respect. It includes an exception when the employer demonstrates
that the final requirement is not feasible. In that circumstance, the
employer may use mobile ladder stand platforms that have steeper slopes
or vertical rung ladders, provided the employer stabilizes the
alternative unit to prevent it from overturning. The final rule
includes this exception because OSHA recognizes that there may be
situations or locations where, for example, the slope of the step
stringer on a mobile ladder stand platform may need to be greater than
the 60-degree limit. To illustrate, there may be a workplace space
where the employer needs to use a mobile ladder stand platform, but the
unit does not fit. In that situation, OSHA believes it would be
appropriate to use an alternative unit with a steeper stringer slope or
a vertical rung ladder that takes up less space.
The ANSI standard also includes a similar exception for mobile
ladder stand platforms (A14.7-2011, Section 4.4.3). The exception in
the ANSI standard specifically permits employers to use alternative
mobile ladder stand platforms that have steps with a slope of 60 to 70
degrees. OSHA notes that some alternative units consist of retractable
ship's stairs which, consistent with final Sec. 1910.25(e)(1), have a
slope of 60 to 70 degrees. When employers demonstrate the final rule is
not feasible, OSHA notes that employers will be in compliance with
final paragraph (e)(3)(i) if they use mobile ladder stand platforms
with a slope of up to 70 degrees, the limit permitted by A14.7-2011,
Section 4.4.3. The exception also requires that employers properly
stabilize the alternative unit to reduce the risk of workers falling
off the steeper steps. OSHA did not receive any comments on the
proposed provision, and adopts it as discussed above.
Final paragraphs (e)(3)(ii) and (iii) establish requirements
addressing the
[[Page 82548]]
platform area of mobile ladder stand platforms. When the height of the
platform is 4 feet to 10 feet, final paragraph (e)(3)(ii) requires that
employers ensure the platform areas have handrails and midrails.
Employers also must ensure the handrails on the platforms in this
height range have a vertical height of at least 36 inches. As discussed
in final paragraph (e)(2)(ii), these requirements are necessary to
protect workers from falling off walking-working surfaces that are 4
feet or more above a lower level.
Although the existing OSHA rule contains a requirement for
handrails on mobile ladder stands (Sec. 1910.29(f)(4)), it only
requires that the vertical of height of the handrails be at least 29
inches, which is not as protective as the ANSI standard. Therefore,
OSHA adopted final paragraph (e)(3)(ii) from the ANSI standard (A14.7-
2011, Section 4.4.4).
Final paragraph (e)(3)(ii) differs from the proposed rule in that
OSHA removed the proposed requirement that mobile ladder stand
platforms have handrails on the steps if the top step height is 4 feet
to 10 feet. The final rule consolidated that requirement in final
paragraph (e)(1)(v), which preserves the step-handrail requirement for
both mobile ladder stands and platforms. (See discussion of handrails
in the summary of final paragraph (e)(1)(v) above.) OSHA did not
receive any comments on the proposed requirement, and adopts it as
revised.
Final paragraph (e)(3)(iii), like the proposal (proposed paragraph
(e)(3)(iii)), establishes requirements for mobile ladder stand
platforms that are more than 10 feet above a lower level. For these
units, the final rule requires that employers must ensure that the
exposed sides and ends of the platforms have both guardrails and
toeboards. OSHA notes that all fall protection and falling object
protection requirements must meet the systems criteria in final Sec.
1910.29.
OSHA believes it is essential that guardrails on platforms that are
more than 10 feet in height comply with the criteria in final Sec.
1910.29(b) to ensure that employers adequately protect workers from
falling off the platforms. OSHA also believes that toeboards must meet
the criteria in final Sec. 1910.29(k)(1) to ensure workers on the
ground are not hit by falling objects. The toeboards must, consistent
with the requirements of Sec. 1910.29:
Have a vertical height of at least 3.5 inches;
Not have more than a 0.25-inch clearance above the
platform surface;
Be solid or have openings that do not exceed 1-inch at the
greatest dimension; and
Be capable of withstanding a force of at least 50 pounds
applied at any downward or outward direction at any point along the
toeboard (see final Sec. 1910.29(k)(1)(ii)).
Lastly, like final paragraphs (e)(1)(v) and (e)(2)(ii), final
paragraph (e)(3)(iv) includes language, proposed as a note to this
provision, that permits the use of removable gates or non-rigid members
instead of handrails and guardrails in special-use applications (see
further discussion of special-use applications in final paragraph
(e)(1)(v) above). OSHA did not receive any comments on the proposed
provisions, and adopts them as revised.
Section 1910.24--Step Bolts and Manhole Steps
Final Sec. 1910.24, like the proposed rule, establishes new
design, strength, and use requirements for step bolts and manhole
steps. The final rule defines a step bolt as ``a bolt or rung attached
at intervals along a structural member used for foot placement and as a
handhold when climbing or standing'' (Sec. 1910.21(b)). Step bolts,
often are used on metal poles or towers, and include pole-steps,
commonly used on wooden poles such as utility poles.
The final rule, like the proposed rule, defines manhole steps as
``steps individually attached to, or set into, the wall of a manhole
structure'' (Sec. 1910.21(b)). Manhole steps are cast, mortared, or
attached by mechanical means into the walls of the base, riser, and
conical top sections of a manhole.
Telecommunications, gas, and electric utility industries are the
industries that most often use step bolts and manhole steps.
Manufacturing establishments also use them instead of conventional
ladders and stairs, especially in locations where it is infeasible to
use ladders and stairs.
OSHA drew the step bolt and manhole step requirements in the final
rule from the following six sources:
The step bolt, pole step, and manhole ladder requirements
in OSHA's Telecommunications standard (29 CFR 1910.268);
The step bolt and manhole step provisions in OSHA's 1990
proposed Walking and Working Surfaces and Personal Protective Equipment
(Fall Protection Systems) standard (55 FR 13360), which drew its
requirements from proposed Electric Power Generation, Transmission, and
Distribution standard (29 CFR 1910.269) (54 FR 4974 (1/31/1989));
American National Standards Institute/Telecommunications
Industry Association (ANSI/TIA) 222-G-1996, Structural Standard for
Antenna Supporting Structures and Antennas (ANSI/TIA 222-G-1996) (Ex.
33);
American National Standards Institute/Telecommunications
Industry Association (ANSI/TIA) 222-G-2005, Structural Standard for
Antenna Supporting Structures and Antennas (ANSI/TIA 222-G-2005) (Ex.
27);
American Society for Testing and Materials (ASTM) C 478-
13, Standard Specification for Precast Reinforced Concrete Manhole
Sections (ASTM C 478-13) (Ex. 381); and
American Society for Testing and Materials (ASTM) A 394-
08, Standard Specification for Steel Transmission Tower Bolts, Zinc-
Coated and Bare (ASTM A 394-08).
The requirements in final Sec. 1910.24 replace the step bolt, pole
step, and manhole step provisions in the existing Telecommunications
standard (Sec. 1910.268(h)), and final Sec. 1910.23 replaces the
ladder requirements in Sec. 1910.268(h). Thus, the final rule deletes
those requirements from Sec. 1910.268(h). Therefore, the
telecommunications industry, as well as all other users of ladders,
step bolts, and manhole steps in general industry must comply with the
ladder, step bolt, and manhole step requirements in revised subpart D.
Consistent with section 6(b)(5) of the OSH Act (29 U.S.C.
655(b)(5)), the final rule is performance based to the extent possible.
For example, final paragraph (a)(2) of this section requires that the
employer ensure that step bolts are designed, constructed, and
maintained to prevent the worker's foot from slipping off the ends,
instead of mandating specific requirements on the size and shape that
the step bolt heads must meet.
OSHA notes that two of the step bolt provisions (final paragraphs
(a)(1) and (7)), and all but two of the manhole step requirements
(final paragraph (b)(2)), apply only to those steps installed after the
effective date of the final rule. OSHA recognizes that many step bolts
and manhole steps already in workplaces currently comply with the
requirements in final Sec. 1910.24. This high rate of compliance, OSHA
believes, is the result of the Agency issuing its Telecommunications
standard in 1975 (40 FR 13341 (3/26/1975)), and because the national
consensus standards addressing step bolts and manhole steps have been
in place for a number of years. That said, OSHA believes the most
efficient and least disruptive way
[[Page 82549]]
to implement the final rule is to require employers to comply with the
final rule when they install new step bolts and manhole steps.
Employers may install new step bolts and manhole steps when they
install new structures (e.g., telecommunications and utility towers),
or when they replace damaged step bolts and manhole steps (e.g.,
broken, missing) that are hazardous for workers to use. Because final
paragraphs (a)(8) and (b)(3) of this section require that employers
inspect step bolts and manhole steps, respectively, at the start of
each work shift, OSHA believes that employers will quickly and readily
identify whether hazardous conditions, including damage, are present.
If such conditions are present, final Sec. 1910.22(d)(2) and (3)
require that employers repair, correct, or replace the step bolts or
manhole steps.
For example, if an inspection of an electric utility tower finds a
corroded step bolt that cannot support the required load (final
paragraphs (a)(6) and (7)), the final rule requires that the employer
replace it with one made of corrosion-resistant materials or with
corrosion-resistant coatings (final paragraph (a)(1)). However, if the
inspection shows existing step bolts still have useful life, i.e., they
can support the required load and meet the other requirements in final
paragraph (a), the employer can continue to use the step bolt even if
it is not made with corrosion-resistant materials or coatings. OSHA
believes that following this type of implementation strategy and
schedule, rather than requiring employers to retrofit all existing step
bolts not made with corrosion-resistant materials or coatings, will
ensure that the final rule does not impose an undue burden on
employers, while ensuring that the existing step bolts are safe for
workers to use.
Paragraph (a)--Step Bolts
Paragraph (a) of the final rule, like the proposal, establishes
requirements addressing the design, dimensions, strength, and
installation of step bolts. OSHA received a comment recommending that
the final rule prohibit the use of step bolts unless it requires that
employers provide fall protection, such as ladder safety systems, when
workers use step bolts (Ex. 155). Dr. J. Nigel Ellis, of Ellis Fall
Safety Solutions, referenced a 1990 Duke Power study he said
demonstrated step bolts had a high breaking frequency, and therefore,
that fall protection was necessary for workers using step bolts. Dr.
Ellis also said fall protection needed to be continuous, and not
require the worker to manipulate or handle objects when climbing.
OSHA addressed in final Sec. 1910.28 Dr. Ellis' concerns about
protecting workers using step bolts that break unexpectedly. That
section requires that employers provide fall protection for workers on
any walking-working surface with an unprotected side or edge that is
four feet or more above a lower level (Sec. 1910.28(b)). The final
rule is more protective than ANSI/TIA 222-G-2005, which requires that
antenna-supporting structures designed for climbing to heights greater
than 10 feet must have at least one climbing facility (e.g., step
bolts) and a ``safety climb device'' (Section 12.3). The ANSI/TIA 222-
G-2005 standard defines a ``safety climb device'' as ``a support system
that may be a cable or solid rail attached to the structure'' (Section
12.2), and specifies that the device meet the requirements in the A14.3
standard (Section 12.4).
Final paragraph (a)(1), 1ike the proposed rule, requires that
employers ensure step bolts installed in an environment where corrosion
may occur are constructed of, or coated with, material that protects
against corrosion. The final rule is consistent with 1990 proposed
Sec. 1910.24(b)(6) (55 FR 13399). The ANSI/TIA 222-G-2005 standard
requires that structural steel members and components must have zinc
coating (Section 5.6.1). Although the national consensus standard
specifies that hot-dip galvanizing is the preferred method, employers
may use other equivalent methods (Section 5.6.1).
Corrosive environments can cause damage to unprotected metals. For
example, corrosion can lead to deterioration and weakening that may
cause step bolts to break or fail to support the total required load.
OSHA believes that corrosion-resistant materials and coatings will
protect step bolts and ensure they are capable of supporting at least
four times the maximum intended load.
Final paragraph (a)(1), like the proposed rule, applies the
requirement prospectively to step bolts installed on or after the
effective date of the final rule. As noted above, OSHA believes this is
the most efficient way to implement this provision while, at the same
time, ensuring worker protection. Mr. Robert Miller, of Ameren
Corporation, supported OSHA's decision to make the paragraph (a)(1)
prospective (Ex. 189). Accordingly, OSHA is adopting paragraph (a)(1)
as discussed.
Final paragraph (a)(2), similar to the proposed rule, requires that
employers ensure step bolts are designed, constructed, and maintained
to prevent the worker's foot from slipping off the end of it. If a
worker's foot slips off the end of the step bolt, the worker could fall
or sustain an injury from slipping. Designing the head of the step bolt
to prevent the worker's foot from slipping off will provide the
requisite protection. Final paragraph (a)(2) also is consistent with
the ANSI/TIA 222-G-2005 standard (Section 12.5(f)), as well as 1990
proposed Sec. 1910.24(b)(5).
The proposed rule specified that step bolts be ``designed to
prevent slipping or sliding off the end of the bolt,'' but the proposal
also required step bolts to be ``designed, constructed, and
maintained'' free of recognized hazards (proposed Sec. 1910.22(a)(3)).
Only properly designed, constructed, and maintained step bolts will be
effective in preventing the worker's foot from slipping off the end,
therefore the Agency added ``constructed and maintained'' to final
paragraph (a)(2) to emphasize that step bolts must meet these
requirements as well. OSHA did not receive any comments on the proposed
provision and has adopted paragraph (a)(2) with the revisions
discussed.
Final paragraph (a)(3), like the proposed rule, requires that
employers ensure step bolts are uniformly spaced at a vertical distance
of not less than 12 inches and not more than 18 inches apart, measured
center to center. The final paragraph also notes that the spacing from
the entry and exit surface to the first step bolt may differ from the
spacing between other step bolts. This requirement means that the
maximum uniform spacing between alternating step bolts is 18 inches,
resulting in a maximum spacing between step bolts on the same side of
36 inches. OSHA believes that uniform spacing helps to ensure safe
climbing when using step bolts. (Figure D-6 illustrates the vertical
spacing requirements in the final rule.)
The final rule generally is consistent with the proposed rule and
the existing Telecommunications standard (Sec. 1910.268(h)(2)), which
limit the maximum vertical spacing between step bolts (alternating) to
18 inches. OSHA adopted the Telecommunications standard in 1975 based
on recommendations of a voluntary committee of representatives from
telephone companies and communication unions (40 FR 13341 (3/26/1975)).
The 1990 proposal specified that the spacing between step bolts be
between 6 and 18 inches (Sec. 1910.24(b)(1)). The ANSI/TIA 222-G-2005
standard requires that the spacing between step bolts be between 10 to
16 inches, with a tolerance of 1 inch (Section 12.5).
[[Page 82550]]
In the proposed rule, OSHA requested, but did not receive, comments
on whether the Agency should adopt the proposed requirement or the
spacing that the ANSI/TIA 222-G-2005 standard specifies. OSHA believes
that adopting the maximum 18-inch uniform vertical spacing requirement
in final paragraph (a)(3) is appropriate for two reasons. First, as
mentioned earlier, the step bolt requirement in the Telecommunications
standard has been in place for more than 35 years. During that period,
the telecommunications industry constructed many towers that have step
bolts spaced no more than 18 inches apart. OSHA has no data showing
that the maximum 18-inch vertical step bolt spacing requirement in the
Telecommunications standard poses any safety problems or resulted in
any injury in that industry. Moreover, OSHA believes that most of the
telecommunications industry already is in compliance with Sec.
1910.268, and that final paragraph (a)(3) would not impose a financial
burden on employers.
Second, if the 1-inch tolerance allowed in the ANSI/TIA
222-G-2005 standard is taken into account, there is, at most, only a 1-
inch difference in the maximum vertical spacing in final paragraph
(a)(3) and the ANSI/TIA 222-G-2005 standard. OSHA does not consider
this difference to be significant in this provision. Therefore, OSHA is
adopting in the final provision, the step bolt spacing requirement
(between 12 and 18 inches) that is consistent with OSHA's
Telecommunications standard.
Final paragraph (a)(3), like the proposed rule, allows the spacing
of step bolts at the entry and exit surface to the first step bolt to
differ from the uniform spacing between the other step bolts. For
example, the first step bolt on a monopole may be 10 feet above the
ground. Having a higher first step bolt on a structure is not unusual;
in many cases, this configuration limits unauthorized access to the
structure's hazardous heights, communication devices, or electrical
wiring.
OSHA's Telecommunications standard also allows the spacing of the
initial step bolt to differ from the other steps, ``except where
working, standing, or access steps are required'' (existing Sec.
1910.268(h)(2)). The 1990 proposal did not specifically address spacing
of the initial step bolt. Section 12.5(a) of ANSI/TIA 222-G-2005
requires that ``spacing shall remain uniform over a continuous length
of climb,'' but does not address entry and exit spacing. OSHA believes
that allowing a variation in spacing from the entry surface to the
first step bolt or from the last step bolt to the exit surface will
make it easier and safer for workers to establish their foothold. Once
again, since the Telecommunication standard allows the spacing on the
first and exit step bolt to differ and OSHA is not aware of any
injuries or problems occurring as a result, the Agency is adopting
paragraph (a)(3) as proposed, with minor editorial revisions.
Final paragraph (a)(4), like the proposed rule, requires that
employers ensure step bolts have a minimum clear width of 4.5 inches.
The final rule is the same as OSHA's Telecommunications standard (Sec.
1910.268(h)(2)); 1990 proposed Sec. 1910.24(b)(2); and the ANSI/TIA
222-G (2005) standard (Section 12.5(f)).
OSHA believes it is necessary that workers have an adequate space
on which to step and secure their foothold while climbing or they could
slip and fall. OSHA believes the telecommunications industry supports
the 4.5-inch minimum clear-step width in the Telecommunications and
ANSI/TIA 222-G-2005 standards. In addition, since both standards have
been in place for many years, OSHA believes the industry already is in
compliance with the minimum clear width requirement.
Mr. Larry Halprin, of Keller and Heckman, said that OSHA should
only apply the vertical spacing distance (final paragraph (a)(3)) and
minimum clear width (final paragraph (a)(4)) requirements prospectively
(Ex. OSHA-S029-2006-0662-0381). He stated that, in the OSHA notice
reopening the rulemaking docket on subpart D, the Agency said that the
1990 proposal specified prospective application of the revised
provisions, and ``would allow workplaces and equipment meeting existing
subpart D requirements to be `grandfathered in''' (68 FR 23529 (5/2/
2003)). However, neither the 2010 nor the 1990 proposed rules stated
that OSHA would apply the vertical spacing or minimum clear width
requirements prospectively. In addition, as mentioned, the
Telecommunications and ANSI/TIA 222-G-2005 standards, which have been
in place more than 35 years, include both requirements. Moreover, OSHA
received no comments from affected industries indicating that they
could not meet the existing vertical spacing and minimum clear width
requirements. Therefore, OSHA believes that most employers already are
in compliance with final paragraphs (a)(3) and (4). Accordingly, OSHA
does not believe it is necessary to limit the vertical spacing and
minimum clear width requirements to prospective application and adopts
the provisions as proposed, with minor editorial revisions.
Final paragraph (a)(5), like the 2010 and 1990 proposed rules,
requires that employers ensure the minimum perpendicular distance
between the centerline of each step bolt to the nearest permanent
object in back of the step bolt is at least 7 inches. When employers
can demonstrate that they cannot avoid an obstruction, the final rule
permits them to reduce the minimum perpendicular clearance space to 4.5
inches.
The required 7-inch minimum perpendicular clearance space in final
paragraph (a)(5) is consistent with the minimum perpendicular clearance
for fixed ladders in final Sec. 1910.23(d)(2), the construction
ladders standard (Sec. 1926.1053(a)(13)), and ANSI/TIA 222-G-2005
standard (Section 12.5). However, final paragraph (a)(5), like the 2010
and 1990 proposals, provides more flexibility than those standards.
When the employer demonstrates that an obstruction is not avoidable,
final paragraph (a)(5) allows employers to reduce the minimum
perpendicular clearance to 4.5 inches for any step bolt.
OSHA believes that a 7-inch minimum perpendicular clearance for
step bolts, like fixed ladders, is necessary to ensure workers are able
to maintain a secure foothold and negotiate the step bolts while they
are climbing or working. Because the final rule gives employers the
flexibility to reduce the minimum perpendicular clearance space for any
step bolt if an obstruction cannot be avoided, the Agency believes that
employers need to be able to demonstrate that they made a case-by-case
evaluation and determination that the obstruction was not avoidable in
the specific instance. For example, where an employer uses step bolts
in an industrial setting because it is not feasible to use fixed
ladders or stairs (e.g., space limits), employers need to show they
evaluated the specific situation and considered potential options in
determining whether they could avoid or remove the obstruction. The
language in the final rule clarifies the Agency's intent about the
situations in which employers may reduce the minimum perpendicular
clearance space on a step bolt. The Agency did not receive comments on
proposed paragraph (a)(5) and adopts the requirement as discussed.
Final paragraphs (a)(6) and (7) address strength requirements for
existing step bolts and for step bolts installed on or after the
effective date of the final rule. The final rule establishes different
strength requirements for existing and new step bolts to reduce the
need for
[[Page 82551]]
retrofitting step bolts that currently meet the maximum intended load
requirements in final Sec. 1910.22(b) and still have useful life.
Final paragraph (a)(6), like the proposed rule, requires that
employers ensure each step bolt installed before the effective date of
the final rule is capable of supporting the maximum intended load. The
final rule defines maximum intended load as ``the total load (weight
and force) of all workers, equipment, vehicles, tools, materials, and
loads the employer reasonably anticipates to be applied to a walking-
working surface at any one time'' (Sec. 1910.21(b)).
The final provision is based on the Telecommunications standard
requirement that employers shall ensure that no employee nor any
material or equipment may be supported or permitted to be supported on
any portion of a ladder unless it is first determined, by inspections
and checks conducted by a competent person that such ladder is
adequately strong, and in good condition (Sec. 1910.268(h)(1)), and is
consistent with 1990 proposed Sec. 1910.24(c)(2). The ANSI/TIA 222-G-
2005 standard establishes strength specifications:
A load factor, [alpha]L = 1.5, shall be applied to
the nominal loads specified herein:
The minimum nominal load on individual rungs or steps shall be
equal to a normal concentrated load of 250 lbs [1.1 kN] applied at
the worst-case location and direction.
The minimum nominal load on ladders shall be 500 lbs [2.2 kN]
vertical and 100 lbs [445 N] horizontal applied simultaneously,
concentrated at the worst-case location between consecutive
attachment points to the structure (Section 12.4).
The general requirements in the final rule specify that employers
ensure all walking-working surfaces are capable of supporting the total
weight and force employers reasonably anticipate placing on that
surface (Sec. 1910.22(b)). Final paragraph (a)(6) reinforces that this
requirement applies as well to existing step bolts. OSHA believes step
bolts that cannot support their maximum intended load are not safe to
use, regardless of when the employer installed them.
The ANSI/TIA 222-G standard has been in place since 2005, and OSHA
believes most step bolts manufactured today meet the requirements of
that standard. In addition, OSHA's experience is step bolt
manufacturers generally specify maximum loads that step bolts can
withstand without failure. As such, OSHA believes that most existing
step bolts are in compliance with final paragraph (a)(6) and Sec.
1910.22(b). That said, employers must continue to inspect step bolts to
ensure that the loads placed on the step bolts covered by this
provision do not exceed the maximum intended loads and manufacturer
specifications. This is because failure or deflection of step bolts can
occur during use, particularly since the weight on step bolts is not
static and varies as a worker climbs. OSHA did not receive any comments
on proposed paragraph (a)(6), and is adopting it as discussed.
Final paragraph (a)(7), like the proposed rule, requires that
employers ensure each step bolt installed on or after the effective
date of the final rule is capable of supporting at least four times its
maximum intended load. As discussed in the proposed rule, OSHA believes
that requiring step bolts be capable of supporting four times the
maximum intended load is necessary to provide a safety factor that is
adequate to ensure that step bolts do not fail during use. The required
safety factor (i.e., 4 times the maximum intended load) will provide an
additional level of assurance that step bolt are safe for workers to
use. OSHA believes that common engineering practice requires
manufacturers to include a safety factor in any product design to
account for any unanticipated conditions that may stress the product
beyond its designed capabilities.
Final paragraph (a)(7) is consistent with 1990 proposed Sec.
1910.24(c)(1), which specified that ``[e]ach step bolt shall be capable
of withstanding, without failure, at least four times the intended load
calculated to be applied to the [step] bolt.'' In addition, as
mentioned above, the Telecommunications standard requires any portion
of a ladder to be ``adequately strong,'' while the ANSI/TIA 222-G-2005
standard establishes specification requirements.
The ASTM A 394-08 standard establishes specification for step bolts
with nominal thread diameters of \1/2\, \5/8\, \3/4\, \7/8\ and 1-inch
(Ex. 383). OSHA believes that \5/8\-inch diameter steel step bolts
normally comply with the strength requirement in final paragraph
(a)(7), and are the most commonly used step bolts in general industry.
Manufacturers also produce step bolts smaller than \5/8\-inch diameter,
but OSHA notes that \1/2\-inch step bolts may not comply with final
paragraph (a)(7).
Final paragraph (a)(7), unlike the ANSI/TIA and ASTM standards, is
a performance-based requirement. OSHA believes that giving employers
flexibility in determining the maximum load they anticipate applying to
any step bolt will ensure that the maximum intended load accurately
reflects the particular work and workplace conditions present. By
contrast, OSHA believes that the ANSI/TIA 222-G-2005 test procedures
are for manufacturers, not employers, because manufacturers are in the
best position to test whether step bolts meet the strength
requirements. Employers are free to use the specifications and test
procedures in the ANSI/TIA national consensus standard to determine
whether their step bolts meet the maximum intended load requirements in
final paragraph (a)(7).
OSHA received two comments on the proposed requirement. As
discussed in final paragraph (a)(1), Mr. Miller, of Ameren, supported
the Agency's decision to apply the new strength requirement in final
paragraph (a)(7) prospectively (Ex. 189). In the second comment, Mr.
Richard Willis, of Southern Company, questioned how employers would
calculate the performance-based maximum intended load for step bolts in
final paragraph (a)(7) (Ex. 192). He recommended:
We suggest that the methodology of National Electric Safety Code
(NESC) 2007 Rule 261N be adopted. We also feel that OSHA needs to
state a failure criteria for 1910.24(a)(7). . . .
Instead of using the four times the maximum intended load, OSHA
should consider using the criteria of the NESC or IEEE 1307 (Ex.
192).
OSHA recognizes the methodologies in the national consensus
standards that Mr. Willis recommended are methodologies employers can
use to determine and ensure that step bolts are capable of supporting
four times the maximum intended load. Employers are free to use the
NESC and IEEE 1307 standards, which OSHA referenced in the proposed
rule (75 FR 28901) in determining whether their step bolts are capable
of supporting four times the total load they reasonably anticipate
placing on the step bolt. In a 2003 letter of interpretation, OSHA
wrote, ``We believe in most situations an employer's compliance with
IEEE 1307-1996 will usually prevent or eliminate serious hazards''
(OSHA letter to Mr. Brian Lacoursiere, May 5, 2003).\21\
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\21\ Available from OSHA's website at: http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_id=24564.
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Under the performance based final rule, employers may use other
methods to ensure step bolts comply with the strength requirement in
final paragraph (a)(7). For example, employers may select step bolts
that manufacturers test according to the strength requirements
specified by the ANSI/TIA 222-G
[[Page 82552]]
standard (Section 12.4), and then ensure that workers do not place a
total load on the step bolts that exceeds the specified strength
limits.
Mr. Willis also said that OSHA should state the failure criteria
for final paragraph (a)(7) as: ``If the intent is a 15 degree
deflection as referenced by the NESC and in 1910.24(a)(9), then this
should be stated'' (Ex. 192). OSHA does not believe it is necessary to
put additional language in final paragraph (a)(7) specifying a
``failure criteria'' for step bolt strength. First, the Agency believes
that final paragraph (a)(9) makes clear that step bolts bent more than
15 degrees do not meet the requirement in paragraph (a)(7). Final
paragraph (a)(9) states that employers must remove and replace those
step bolts. Second, the language Mr. Willis recommended is not
performance based as it does not include other failure criteria
manufacturers and employers may use. Therefore, OSHA finalizes the
provision as discussed.
Final paragraph (a)(8) requires that employers ensure step bolts
are inspected at the start of each work shift and maintained in
accordance with Sec. 1910.22. By including the reference to Sec.
1910.22, OSHA is emphasizing that step bolts, like all walking-working
surfaces, must meet the general requirements in the final rule.
OSHA believes a visual inspection often can reveal structural and
other problems with step bolts that may make them unsafe for workers to
use. Employers must correct, repair, or replace step bolts with
structural problems (e.g., broken, fractured, loose, bent, or corroded
step bolts) that indicate that the step bolts cannot support the
maximum intended load (final Sec. 1910.22(b) and (d)(2)). A visual
inspection also can identify whether step bolts are dry, or likely to
be slippery because of snow, ice, or rain (final Sec. 1910.22(a)(2)).
Final paragraph (a)(8) requires that employers address these conditions
to maintain step bolts in accordance with Sec. 1910.22.
As with the inspection requirements in final Sec. 1910.22, the
inspection of step bolts most often will consist of a short, visual
observation of the condition of the step bolts. Final paragraph (a)(7)
permits workers to perform this visual inspection as they begin to
climb the structure, so long as the workers inspect the step bolts
before stepping on, or grasping them, and know not to proceed if the
step bolts do not pass the visual inspection. Where a worker or
supervisor identifies a problem during a visual inspection, a more
thorough examination may be necessary. The employer must repair,
correct, or replace the damaged or hazardous step bolt before allowing
workers to continue climbing the structure.
OSHA notes the proposed rule, like 1990 proposed Sec.
1910.24(c)(4), specified that employers inspect step bolts visually
``before each use.'' The phrase ``before each use'' means before the
worker climbs the step bolts for the first time at the start of the
work shift. It does not mean that employers must, throughout a work
shift, have workers inspect the step bolts each time they climb them.
OSHA understands that workers may climb step bolts multiple times
during a work shift, and believes that inspecting step bolts at the
initial climb is sufficient. OSHA did not receive any comments on the
inspection requirement and adopts the requirement as discussed.
Final paragraph (a)(9), like the proposed rule, requires that
employers ensure any step bolt that is bent more than 15 degrees from
the perpendicular, in any direction, is removed and replaced with a
bolt that meets the requirements of the section, before a worker uses
it. OSHA believes this provision is necessary because step bolts bent
to such a degree are not safe for workers to use. Regardless of the
direction of the bend, it could cause the worker to slip or fall off
the step bolt. If the bend in a step bolt is more than 15 degrees below
horizontal, a worker's feet may slip or slide off the end of the step
bolt. If the bend in a step bolt extends upwards more than 15 degrees,
it is likely to reduce the minimum clear step width (4.5 inches)
necessary to ensure the worker has a secure and safe foothold (final
paragraph (a)(4)).
The final rule also requires that employers ensure that step bolts
used for replacement meet the all of the requirements of final
paragraph (a). This requirement will ensure that replacement step bolts
provide workers with the maximum level of protection afforded by
paragraph (a).
OSHA drew final paragraph (a)(9) from 1990 proposed Sec.
1910.24(c)(5). OSHA did not receive any comments on paragraph (a)(9),
and adopts it as discussed.
Paragraph (b)--Manhole Steps
Final paragraph (b) addresses the design, capacity, and use of
manhole steps. There are no requirements specifically addressing
manhole steps in existing subpart D, although OSHA's Telecommunications
standard establishes requirements to protect workers who use metal
ladders in manholes (Sec. 1910.268(h)(8)). OSHA drew most of the
manhole step requirements from the 1990 proposed Walking and Working
Surfaces and Personal Protective Equipment (Fall Protection Systems)
standard (55 FR 13360), which drew its requirements from a 1989
proposed rule on Electric Power Generation, Transmission, and
Distribution. OSHA did not believe that it was necessary to include the
manhole step requirements in the Electric Power Generation,
Transmission, and Distribution final rule because the 1990 proposed
rule to revise subpart D included provisions on manhole steps.
Final paragraph (b)(1), like the proposed rule, requires that
employers ensure manhole steps are capable of supporting their maximum
intended load, as defined in Sec. 1910.21(b). As mentioned in the
discussion of final paragraph (a)(6), final Sec. 1910.22(b) requires
that employers ensure all walking-working surfaces are able to support
the maximum intended load that employers reasonably anticipate placing
on them. Final paragraph (b)(1) emphasizes that the maximum intended
load requirement in the final rule applies to existing manhole steps,
regardless of when the employer installed them. Manhole steps that
cannot support the maximum intended load without failure are not safe
to use.
OSHA based the provision on 1990 proposed Sec. 1910.24(c)(2),
which also specified that existing manhole steps be capable of
supporting their maximum intended load. The ASTM C 478 standard
requires vertical and horizontal load testing of manhole steps in
accordance with ASTM Test Methods C 497 (Section 16.6.1.3) (Ex. 382).
Final paragraph (b)(1), like final paragraph (a)(6) of this section
and final Sec. 1910.22(b), is performance based. However, employers
are free to use the test procedures in ASTM C 478 and C 497 in
determining whether their manhole steps can support the maximum
intended load the employer anticipates placing on them. OSHA did not
receive any comments on this provision, and adopted it as proposed wit
minor editorial revisions.
Final paragraph (b)(2), like the proposal, establishes requirements
for manhole steps installed on or after the effective date of the final
rule. OSHA based most of these requirements on 1990 proposed Sec.
1910.24, and ASTM C 478-13, with many of the manhole step requirements
in 1990 proposed Sec. 1910.24 applying only prospectively (e.g., 1990
proposed Sec. 1910.24(b)(6), (b)(7), and (c)(3)(i)-(iv))). As
mentioned earlier, OSHA believes that applying the manhole step
requirements when employers install new or replacement steps is the
most efficient and least disruptive way to implement the
[[Page 82553]]
requirements in final paragraph (b)(2). Manhole steps, compared to step
bolts, are generally more expensive to replace, and such replacement
may not be necessary when the manhole steps can support the maximum
intended load, and the employer inspects them at the start of each work
shift, and repairs or replaces them immediately after identifying
damage or hazardous conditions.
Final paragraph (b)(2)(i), like the proposed rule, requires that
employers ensure manhole steps have a corrugated, knurled, dimpled, or
other surface that minimizes the possibility of a worker slipping. The
final rule is consistent with the requirements for metal manhole
ladders in OSHA's Telecommunications standard (Sec.
1910.268(h)(8)(v)). The 1990 proposed rule (proposed Sec.
1910.24(b)(7)) specified the same requirement as final paragraph
(b)(2)(i) for manhole steps.
OSHA believes this final rule is necessary to reduce workers' risk
of slipping and falling. Underground manholes often have moisture and
other slippery substances (e.g., mud, grease) that can pose slip
hazards for workers. Ensuring that workers have, and can maintain, a
secure foothold when entering the manhole and climbing the manhole
steps is important to protect them from injury. OSHA notes final
paragraph (b)(2)(i) is performance based. Thus employers are free to
use any type of surface preparation that effectively minimizes the risk
of slipping. OSHA received no comments on the proposed provision and
adopts the requirement as discussed.
Final paragraph (b)(2)(ii), like the proposal and final paragraph
(a)(1) of this section for step bolts, requires that employers ensure
manhole steps are constructed of, or coated with, material that
protects against corrosion if the manhole steps are in an environment
where corrosion may occur. The final rule is consistent with the
Telecommunications standard (Sec. 1910.268(h)(8) introductory text and
(h)(8)(vi)) and 1990 proposed Sec. 1910.24(b)(6)). The
Telecommunications standard also requires that employers, when
selecting metal ladders, ensure that the ladder hardware must be
constructed of a material that is protected against corrosion and that
the metals used shall be selected as to avoid excessive galvanic action
(Sec. 1910.268(h)(8)(vi)). The ASTM C 478 standard, however, addresses
corrosion hazards using a different approach. The national consensus
standard does not require that manhole steps consist of corrosion-
resistant materials or have corrosion-resistant coatings. Instead, it
requires that ferrous metal steps not painted or treated to resist
corrosion must have a minimum cross-sectional dimension of one inch.
OSHA believes that requiring all manhole steps to consist of corrosion-
resistant material or have corrosion-resistant coatings is more
protective, and better effectuates the purposes of the OSH Act, than
ASTM C 478. OSHA's final rule protects manhole steps from becoming
corroded, while the ASTM C 478 standard requires that employers make
ferrous metal steps with large cross-sectional dimensions so they will
hold up against corrosion longer.
Furthermore, as discussed in final paragraph (a)(1) of this section
for step bolts, OSHA believes that corrosive environments can weaken
and cause damage to unprotected metals, including manhole steps.
Corrosion resistance will help to prevent deterioration that can lead
to failure of manhole steps. OSHA did not receive any comments on the
provision and adopts it as proposed with minor editorial
clarifications.
Final paragraph (b)(2)(iii), like the proposed rule, requires that
employers ensure manhole steps have a minimum clear step width of 10
inches. The final rule is consistent with the ASTM C 478 standard
(Section 16.5.2), as well as 1990 proposed Sec. 1910.24(b)(2). The
ASTM C 478 standard has been in place for many years, so OSHA believes
that most manhole steps have a step width of at least 10 inches. OSHA
did not receive any comments on paragraph (b)(2)(iii) and adopts it as
proposed.
Final paragraph (b)(2)(iv), like the proposal, requires that
employers ensure manhole steps are uniformly spaced at a vertical
distance of not more than 16 inches apart, measured center to center
between steps. As mentioned above, OSHA believes that uniform spacing
helps to make climbing safe. The ASTM C 478 standard specifies a
maximum vertical spacing of 16 inches. The 1990 proposed provision
(proposed Sec. 1910.24(b)(1) specifies a uniform spacing of not less
than six inches nor more than 18 inches apart.
Final paragraph (b)(2)(iv), like final paragraph (a)(3) of this
section for step bolts, also allows spacing from the entry and exit
surface to the first manhole step to be different from the spacing
between the other steps. Additionally, OSHA added a standard method for
measuring the distance--from center to center between steps. This
measurement method and the allowance for different spacing of the first
manhole step are common practices, and will provide the consistency
needed to help protect workers, who will be entering, exiting, and
working in different manholes. OSHA did not receive any comments on
this provision and adopts it as discussed.
Final paragraph (b)(2)(v), like the proposed rule, requires that
employers ensure manhole steps have a minimum perpendicular distance of
at least 4.5 inches measured between the centerline of the manhole step
and the nearest permanent object in back of it. The minimum clear-
distance requirement is consistent with 1990 proposed Sec.
1910.24(b)(3) and ASTM C 478, indicating that 4.5 inches is the common,
accepted clearance for manhole steps. This requirement will provide
adequate foot and hand holds, which are necessary for workers to safely
climb manhole steps. OSHA did not receive any comments on this
provision and adopts it as proposed.
Final paragraph (b)(2)(vi), like the proposal and final paragraph
(a)(2) of this section for step bolts, requires that employers ensure
that manhole steps are designed, constructed, and maintained to prevent
the worker's foot from slipping or sliding off the end of the manhole
step, which can result in a fall or slip. The final rule is the same as
1990 proposed Sec. 1910.24(b)(5).
The proposed rule specified that manhole steps be designed to
prevent workers' feet from slipping off the end of the step. For the
same reasons discussed above in final paragraph (a)(2) for step bolts,
OSHA added ``constructed and maintained'' to the final rule. OSHA did
not receive any comments on this provision and adopted it as revised.
Final paragraph (b)(3), like the proposed rule and final paragraph
(a)(8) of this section for step bolts, requires that employers ensure
manhole steps are inspected at the start of the work shift, and
maintained in accordance with Sec. 1910.22. 1990 proposed Sec.
1910.24(c)(4) specified that manhole steps be maintained in a safe
condition and visually inspected prior to each use. OSHA's reasons for
requiring manhole step inspections at the start of each work shift are
the same reasons as those discussed above in final paragraph (a)(8)
and, therefore, are not repeated here.
The proposed rule specified that manhole steps be visually
inspected before each use. Mr. Miller, of Ameren, objected to the
proposed language, saying: ``Manhole steps are inspected when entered.
There should be no need for additional inspection which would only
increase the time and have little to no impact on safety. This seems
only to be a paperwork requirement and would
[[Page 82554]]
do little to protect workers from hazards'' (Ex. 189).
OSHA is unclear what Mr. Miller means by ``additional inspection,''
specifically whether he is referring to the ``before each use''
language in the proposed rule or the requirement that employers also
maintain manhole steps in accordance with final Sec. 1910.22, which
requires inspection of walking-working surfaces regularly and as
necessary. The ``before each use'' language means that employers must
ensure inspection of manhole steps before the first use in a work
shift, and not every time a worker climbs on manhole steps. OSHA
recognizes that workers may climb manhole steps multiple times during a
work shift, and believes that inspecting the manhole steps when workers
first use them during a work shift is sufficient. The final rule
clarifies this point.
If Mr. Miller is referring to the inspections of walking-working
surfaces employers must conduct in accordance with Sec. 1910.22(d)(1),
OSHA disagrees with Mr. Miller that such inspections are simply a
paperwork burden that have no impact on safety. Conducting regular
inspections ensures that hazards are identified and corrected in a
timely manner, thereby preventing worker injury or death. Regular
inspections also are important if workers do not use manhole steps
daily or frequently. Inspections provide the assurances that walking-
working surfaces such as manhole steps will be in a safe and useable
condition when workers use them.
By contrast, the American Federation of State, County and Municipal
Employees (AFSCME) recommended that OSHA strengthen the visual
inspection requirement for existing manhole steps: ``Our members report
that many of these steps degrade due to exposure to the elements and
are difficult to inspect visually. Often manholes are not entered
regularly. We suggest the Agency require inventory of manholes that use
permanent step ladders and that they be inspected annually'' (Ex. 226).
OSHA believes that the level of inspection the final rule requires
provides far more protection than AFSCME recommends for existing
manhole steps. Final paragraph (b)(3) requires that employers ensure
each manhole step is inspected at the start of each work shift, which
could amount to multiple inspections each workday, depending on the
number of work shifts in a workday. OSHA believes that requiring
inspection before initially using manhole steps in a work shift is more
protective than using manhole steps that were last inspected almost a
year ago.
Final paragraph (b)(3) also requires that employers maintain
manhole steps in accordance with final Sec. 1910.22. That section
requires employers to inspect walking-working surfaces regularly and as
necessary, and to maintain them in safe condition. ``Regular
inspection'' means that the employer has some type of schedule, formal
or informal, for inspecting walking-working surfaces that is adequate
to identify hazards and address them in a timely manner. For purposes
of the final rule, ``as necessary'' means that employers must conduct
inspections when particular workplace conditions, circumstances, or
events occur that warrant an additional check of walking-working
surfaces to ensure that they are safe for workers to use. For example,
an additional inspection may be necessary to ensure that a significant
leak or spill does not create a slip, trip, or fall hazard on a
walking-working surface.
OSHA believes this combination of inspection requirements will
ensure that employers identify and correct hazardous conditions, such
as degradation due to corrosion, on a timely basis, even if workers do
not use manhole steps regularly. In addition, the requirement that
manhole steps must be capable of supporting the maximum intended load
(Sec. 1910.22(b)) will supplement visual inspections to ensure that
manhole steps are safe to use.
Section 1910.25--Stairways
Section 1910.25 of the final rule establishes requirements for the
design and installation of stairways. OSHA carried forward the majority
of these requirements from the existing rule (Sec. 1910.24, Fixed
industrial stairs), and also drew a number of provisions from the
following national consensus standards:
American Society of Safety Engineers/American National
Standard Institute (ASSE/ANSI) A1264.1-2007, Safety Requirements for
Workplace Walking/Working Surfaces and Their Access; Workplace, Floor,
Wall and Roof Openings; Stairs and Guardrail Systems (A1264.1-2007)
(Ex. 13);
National Fire Protection Association (NFPA) 101-2012, Life
Safety Code (NFPA 101-2012) (Ex. 385); and
International Code Council (ICC) International Building
Code-2012 (IBC-2012) (Ex. 386).
Final Sec. 1910.25 is titled ``Stairways,'' which replaces the
``Fixed Industrial Stairs'' title in the existing rule (see discussion
of ``fixed industrial stairs'' below). The final rule (Sec.
1910.21(b)) defines a stairway as ``risers and treads that connect one
level with another, and includes any landings and platforms in between
those levels.'' Final Sec. 1910.25, like the proposed rule, covers all
stairways, including standard, ship, spiral, and alternating-tread type
stairs, used in general industry (Sec. 1910.25(a)). OSHA organized
final Sec. 1910.25 by the types of stairways that the final rule
covers, and revised the format to add a separate paragraph identifying
the scope and application of the section, as follows:
Paragraph (a), Application, which specifies the stairs the
final rule covers and excepts;
Paragraph (b), now titled General Requirements, which
establishes the requirements that apply to all covered stairways;
Paragraph (c), Standard Stairs; and
Paragraphs (d) through (f), which specify requirements
when employers use spiral stairs, ship stairs, and alternating tread-
type stairs.
OSHA believes this revised format makes final Sec. 1910.25 easier to
understand and follow.
Final Sec. 1910.25, like the proposal, replaces the term ``fixed
industrial stair'' in the existing rule with the plain-language term
``stairways.'' In addition, in final Sec. 1910.25, OSHA uses the term,
``standard stairs,'' that Sec. 1910.21(b) defines as ``a fixed or
permanently installed stairway.'' In the proposed rule, the Agency
explained that ``fixed industrial stairs'' was the term in use when
OSHA adopted the existing rule in 1971 from ANSI A64.1-1968 (now
A1264.1-2007). The Agency said ``standard stairs'' was easier to
understand and consistent with revised and updated national consensus
standards (A1264.1-2007, NFPA 101-2006) and industry codes (IBC-2003)
(75 FR 28881-82). Those standards and codes used ``standard stairs,''
``stairways,'' and ``fixed stairs'' interchangeably, and none used or
defined ``fixed industrial stairs.''
OSHA requested comment about replacing the term ``fixed industrial
stairs,'' particularly whether it would cause confusion or leave a gap
in coverage. OSHA only received one comment from the National Fire
Protection Association (NFPA), which supported the proposed change (Ex.
97). NPFA said standard stairs was consistent with NFPA 101-2009
(Sections 3.1 and 7.2.2.2.1). OSHA believes it is important to update
terminology so standards are easy to understand and reflect current
industry practice.
[[Page 82555]]
Paragraph (a)--Application
As mentioned, OSHA changed the title of final paragraph (a) to
``Application.'' OSHA believes that ``Application'' better describes
the content of paragraph (a), which identifies what stairways the final
rule covers and excludes. Final paragraph (a) is broad and
comprehensive. The scope of the existing rule, Sec. 1910.24(a), which
covers ``interior and exteriors stairs around machinery, tanks, and
other equipment, and stairs leading to or from floors, platforms, or
pits,'' also is comprehensive. However, OSHA believes the language in
the final rule more clearly and fully explains the Agency's objective,
and ensures that the final rule does not inadvertently exclude any type
of stairway used in general industry.
Final paragraph (a) also lists certain stairways that Sec. 1910.25
does not cover, specifically:
Stairs serving floating roof tanks;
Stairs on scaffolds;
Stairs designed into machines or equipment; and
Stairs on self-propelled motorized equipment (e.g., motor
vehicles, powered industrial trucks).
Stairs serving floating roof tanks. As discussed in the proposed
rule, these types of stairs are not covered by recognized industry
standards and the Agency does not have any information or sufficient
evidence on how to regulate these stairs. OSHA requested information on
these types of stairs in the proposed rule and did not receive comment.
Therefore, OSHA has not included stairs serving floating roof tanks in
the scope of this section.
Stairs on scaffolds. Final paragraph (a) retains the proposed
exemption for stairs on scaffolds. Requirements for stairs on scaffolds
are provided in the construction industry standards in Sec. 1926.451.
In the preamble to the proposed rule, the Agency explained that the
purpose of the proposed exemption was to have employers comply with the
requirements for stairs on scaffolds contained in Sec. 1926.451. OSHA
said the proposed approach would increase consistency among its
standards, assist employers who perform both general industry and
construction work, and minimize potential for confusion. This exemption
is consistent with OSHA's approach in final Sec. 1910.27(a) for
scaffolds used in general industry. OSHA believes that having employers
who use scaffolding follow a single standard will reduce confusion and
help ensure worker safety.
Stairs designed into machines or equipment and stairs on self-
propelled motorized equipment. Final paragraph (a) retains the proposed
exemption from final Sec. 1910.25 for stairs designed into machines or
equipment and stairs on self-propelled motorized equipment, such as
motor vehicles and powered industrial trucks. However, OSHA does not
intend this exemption to apply to equipment that the existing standard
(Sec. 1910.24) currently covers. For example, the exemption does not
apply to equipment such as mobile well-servicing rigs \22\ that are
transported to various oil and gas wells (Delta Drilling Co. v. OSHC,
91 F.3d 139 (5th Cir. 1996) (unpublished); Basic Energy Services, 25
BNA OSHC 1811 (No. 14-0542, 2015); Poole Co., Texas Ltd., 19 BNA OSHC
1317 (No. 99-0815, 2000)).
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\22\ A mobile well-servicing rig, also referred to as a
``workover rig,'' consists of ``a telescoping derrick; . . .
articulating platforms to allow for differences in the respective
well sites to which the rig travels; as well as many other
implements that aid in the maintenance and upkeep of an existing
well'' (Basic Energy Services, 25 BNA OSHC 1811 (No, 14-0442,
2015)). Once the rig is placed on ``stable ground'' over the well
head, the ``rig-up'' process begins (Id.). ``[T]he platforms of the
mobile well servicing rig are attached to the base of a derrick,
which is a part of the drilling rig itself . . . The servicing
units, though mobile, are placed on stands while in use . . . [T]he
sole purpose of the [well-servicing rig] is to serve as a work
platform'' (Poole Co., Texas Ltd., 19 BNA OSHA 1317 (No. 99-0815,
2000)). The rigging-up process also includes installation of
guardrails, stairs and other implements related to ingress/egress
and safety'' (Id.).
---------------------------------------------------------------------------
The exemption for stairs designed into machines or equipment and
stairs on self-propelled motorized equipment is consistent with the
scope of A1264.1-2007 and other national consensus standards, none of
which address those stairs either. In the proposed rule, the Agency
explained that it did not have sufficient information about such
stairs, and there were no national consensus standards or industry
codes to turn to for guidance or best industry practices. Although OSHA
requested comment and information, only the Society of Professional
Rope Access Technicians (SPRAT) responded:
It is the recommendation of this commenter that any stairs not
covered by recognized industry standards, and about which the Agency
does not have sufficient information or evidence to regulate, simply
be acknowledged as a potentially hazardous situation with provision
for protection against falls required (Ex. 205).
SPRAT pointed out that IBC-2009 and A1264.1-2007 only cover stairs
associated with buildings, and the scope and requirements of those
standards do not include stairs on machines or equipment. Given that,
SPRAT said it would be inappropriate for OSHA to use those standards to
justify covering stairs on, or designed into, machines and equipment.
SPRAT also argued that the rulemaking record did not have adequate
information to support regulating such stairs. OSHA agrees with SPRAT
and retains the exemption for those reasons.
Although final Sec. 1910.25 does not apply to stairs designed into
machines or equipment or stairs on self-propelled motorized equipment,
OSHA notes that the OSH Act's requirement that employers provide their
workers with a place of employment that is free from recognized hazards
that are causing, or are likely to cause, death or serious physical
harm continues to apply (see 29 U.S.C. 654(a)(1)).
Final paragraph (a) eliminates the following existing exceptions:
Stairs to construction operations at private residences,
articulated stairs installed on dock facilities and stairs used for
fire exit purposes. Final Sec. 1910.25 does not include the existing
exemption for stairs to construction operations in private residences,
and the exemption for articulated stairs installed on dock facilities.
OSHA believes that, by specifying that final Sec. 1910.25 only applies
to stairs used in general industry it is no longer necessary to retain
exemptions for stairs in construction operations in private residences
or articulated stairs installed on dock facilities since general
industry does not use such stairs. OSHA's construction (29 CFR part
1926) and maritime (29 CFR parts 1915, 1917, and 1918) standards
regulate these two types of stairs as stairs used for fire-exit
purposes.
OSHA also did not include the existing exemption for stairs used
for fire exit purposes in either the proposed or final rules for two
reasons. First, OSHA recognizes that employers could use virtually all
stairways for fire and emergency exits, which makes a special provision
for fire-exit stairs unnecessary. Second, when workers use stairways to
exit an area in the event of a fire, it is important that the stairways
meet the safety requirements in Sec. 1910.25 so workers are able to
safely escape. The Agency notes that its Means of Egress standards (29
CFR part 1910, subpart E) supplement walking-working surfaces
requirements, including those in Sec. 1910.25, for those portions of
exit routes, including stairways, that are ``generally separated from
other areas to provide a protected way of travel to the exit
discharge'' (29 CFR 1910.43(c)).
Paragraph (b)--General Requirements
Paragraph (b) of the final rule sets forth general requirements for
all stairways covered by this section, while other provisions of Sec.
1910.25 specify
[[Page 82556]]
requirements for specific types of stairways. The general requirements
in the existing rule (29 CFR 1910.23 and 1910.24) only apply to fixed
industrial stairs. However, OSHA believes it is necessary to apply
these general requirements to all stairways used in workplaces to
ensure that workers have adequate protection from fall hazards.
Final paragraph (b)(1), like proposed paragraph (a)(2), requires
that employers ensure handrails, stair rail systems, and guardrail
systems are provided in accordance with final Sec. 1910.28. This
provision is intended to protect workers from falling off stairways.
The final rule revises the proposal in two ways. First, OSHA added
``guardrail systems'' to final paragraph (b)(1). There are places on
stairways, such as a platform between two flights of stairs, where
guardrails, not stair rail systems are used. This was OSHA's intent in
the proposed rule and is clarified for the final rule. There is no
additional burden imposed on employers because they already must
provide protection on unprotected sides and edges 4 feet or more above
a lower level in accordance with final Sec. 1910.28. Section 1910.29
of the final rule details the criteria these guardrail systems must
meet.
Second, the Agency did not include the note from proposed paragraph
(a)(2) in final paragraph (b)(1). The note was moved to Sec.
1910.29(f)(1)(iii) in the final rule. The proposed note specified that
the top rail of a stair rail system may also serve as a handrail when
installed in accordance with Sec. 1910.29(f). The Agency determined
that the note primarily addresses criteria for stair rail systems and
is more appropriately placed with the criteria requirements in Sec.
1910.29. OSHA did not receive any comments on the proposed provision
and adopted the provision with the clarifications discussed above.
Final paragraph (b)(2), like proposed paragraph (a)(3), requires
employers to ensure that the vertical clearance above any stair tread
to any overhead obstruction is at least 6 feet, 8 inches, as measured
from the leading edge of the tread. Like the proposal, spiral stairs
must meet the vertical clearance requirement specified by final
paragraph (d)(3), which is 6 feet, 6 inches.
The required vertical clearance in the final rule is lower than the
7-foot minimum clearance in the existing requirement (Sec.
1910.24(i)). However, the 6-foot, 8-inch clearance is consistent with
A1264.1-2007 (Section 6.12) and NFPA 101-2012. OSHA notes that Section
6(b)(8) of the Occupational Safety and Health Act of 1970 (OSH Act) (29
U.S.C. 655(b)(8)) requires OSHA to promulgate rules that are consistent
with existing national consensus standards or explain why differences
better effectuate the purpose of the OSH Act. The Agency believes that
the requirements in A1264.1-2007 and NFPA 101-2012 provide adequate
protection and reflect accepted industry practice. OSHA also points out
that stairways built in compliance with the existing clearance
requirements already meet the final rule. OSHA did not receive any
comments on the proposed provision.
Final paragraphs (b)(3) through (5) establish requirements for
riser heights, tread depths, and stairway landing platform dimensions.
The final paragraphs, which are consistent with existing subpart D, are
the minimum criteria necessary to ensure worker safety when using
stairs. The final provisions also contain minor non-substantive changes
to increase clarity.
Final paragraph (b)(3), like proposed paragraph (a)(4),
incorporates the requirement in existing Sec. 1910.24(f) that
employers ensure that stairs have uniform riser heights and tread
depths between landings. OSHA believes that retaining this requirement
is necessary because, in the Agency's experience, even small variations
in riser height can cause trips.
OSHA, however, is not carrying forward other language in existing
Sec. 1910.24(f). For example, the existing rule requires that
employers ensure stair treads and nosings are slip-resistant. OSHA does
not believe this provision is necessary because final Sec. 1910.22
already addresses this hazard. To illustrate, Sec. 1910.22(a)(3)
requires employers to maintain walking-working surfaces free of hazards
such as spills, and Sec. 1910.22(d)(1) requires employers to maintain
walking-working surfaces in a safe condition. Therefore, OSHA is not
repeating this requirement in final Sec. 1910.25.
Similarly, OSHA believes it is not necessary to include in final
Sec. 1910.25(b)(3) the existing language allowing employers to use
``welded bar grating treads without nosings.'' The final rule is
performance-based so employers are free to use stairways constructed of
any type of material that will meet the requirements of the final rule.
OSHA received comments on the proposed provision. In particular,
NFPA argued that the uniform tread and riser dimensions in final
paragraph (b)(3) are not achievable because the provision does not
include construction tolerances. NFPA stated, ``It is not technically
possible to build stairs with consistent riser height and consistent
tread depth as construction tolerances creep into the process'' (Ex.
97). To address this issue, NFPA recommended that OSHA incorporate the
tolerances allowed in NFPA 101-2009, which permits an allowance of no
more than \3/16\ inches in adjacent tread depth or riser height, and a
tolerance of no more than \3/8\ inches between the largest and smallest
tread or riser in any flight of stairs. NFPA stated that the
recommendation would provide a ``safety net for compliance'' and would
protect employers from an interpretation of ``uniform'' that does not
permit any allowance for construction tolerances, or that permits
tolerances that are less than the tolerances established in NFPA 101-
2009 (Ex. 97).
OSHA believes that minor variations in tread depth and riser
height, such as those allowed in NFPA 101-2012 and A1264.1-2007, are
acceptable. OSHA understands that minor variations in tread depth and
riser height due to construction tolerances are likely to occur when
building stairs and these minor variations are acceptable under the
final rule.
Final paragraph (b)(4), like proposed paragraph (a)(5) and existing
Sec. 1910.24(g), requires that employers ensure the size of stairway
landings and platforms is not less than the stair width and not less
than 30 inches in depth, as measured in the direction of travel. The
final rule is consistent with A1264.1-2007 (Section 6.10). OSHA did not
receive any comments on the proposed provision adopts the proposed
language with only minor clarifications.
Final (b)(5), like proposed paragraph (a)(6), requires that, when a
door or a gate opens directly onto a stairway, employers must provide a
platform and ensure the swing of the door or gate does not reduce the
effective usable depth of the platform to less than:
20 inches for platforms installed before the effective
date of the final rule; and
22 inches for platforms installed on or after the
effective date of the final rule.
The final and proposed rules revise the language of the existing
rule (Sec. 1910.23(a)(10)), which requires employers to ensure that
doors or gates do not reduce the effective usable depth to less than 20
inches, by increasing the effective usable platform depth by 2 inches
for newly installed platforms. The final rule grandfathers in the 20-
inch platform depth requirement for existing stairways. Increasing the
platform depth requirement to a minimum 22 inches is consistent with
[[Page 82557]]
the current and earlier versions of A1264.1 (1995, 2002, and 2007).
The final and proposed rules use the term ``effective usable
depth.'' The term means the portion of the platform that is beyond the
swing of the door or gate where a worker can stand when opening the
door or gate. As Figure D-7 in the regulatory text illustrates, the
effective useable depth is that portion of the platform that extends
beyond the swing radius of the door or gate when it is open fully to
the leading edge of the stair. OSHA believes this term expressly
clarifies that the minimum platform depth must consider the portion of
the platform used to accommodate the swing of the door or gate.
The Agency requested comment on the proposed provision and the
amount of unobstructed space necessary for landing platforms when doors
or gates open directly onto them. Ameren Corporation commented:
The necessary landing outside the swing radius of any door is
directly dependent upon the direction of the door's swing in
relation to the direction of travel. If the door opens in the
direction of travel, much less clearance is needed for the employee.
Since no objective evidence is available for one distance for all
paths of travel, the clearance of door swing should remain as is and
allow the employer to determine whether or not two more inches of
clearance is necessary for the safety of their personnel (Ex. 189).
OSHA believes that adopting the 22-inch effective useable platform
depth for newly installed stair platforms is appropriate. As mentioned
earlier, OSHA drew the requirement from the A1264.1-2007 standard. The
standard reflects the considered views of employers, employees, safety
professionals, and others. The 22-inch requirement also was in the 1995
and 2002 editions of the A1264.1 standard. With the requirement in
A1264.1-2007 being in effect since 1995, OSHA believes it clearly
represents accepted industry practice. OSHA notes the 22-inch
effective-depth requirement applies to platforms installed on or after
the effective date of the final rule, which is January 17, 2017. OSHA
believes that the phase-in time the final rule allows is more than
adequate for employers who install platforms, gates, and doors on
stairways.
Ameren Corporation also raised an issue about the compliance
deadline for paragraph (b)(5):
Lead time for material orders are often quite longer than three
months[,] often up to years to order material for large capital
projects. Small projects with possibly only a small amount of
material being required shouldn't have much of an issue of complying
depending on the manufacturer capabilities and their imposed
deadlines. Stipulations of ``ordered'' material should be imposed in
regard to the date of the final rule because the time between
ordering and placing into service is often greater than 90 days (Ex.
189).
The 22-inch platform depth requirement in the final rule is
prospective: it only applies to stairways, platforms, doors, and gates
installed on or after the effective date of the final rule, which is
January 17, 2017. This provision gives employers a 60-day lead time
after publication of the final rule to come into compliance with the
requirement when they install new stairway platforms. OSHA does not
believe that it is necessary to extend the compliance deadline any
further, even though the Agency proposed 150 days. The Agency believes
a 60-day compliance lead time is more than adequate given that the 22-
inch requirement in the A1264.1 standard has been in place for more
than 18 years. During this 18-year period, OSHA believes the vast
majority of employers, as well as manufacturers, construction
companies, and building owners, came into compliance with the 22-inch
requirement. Therefore, OSHA requires employers to comply with the 22-
inch effective useable platform depth requirement by the standard's
effective date.
Final paragraph (b)(6), like proposed paragraph (a)(7), requires
that employers ensure stairs can support at least five times the normal
anticipated live load, and never less than a concentrated load of 1,000
pounds, applied at any point on the stairway. This requirement is
consistent with A1264.1-2007 and earlier versions, which have been in
place for many years. OSHA believes that most existing stairs have been
installed in accordance with the ANSI requirements, and, therefore,
already are in compliance.
OSHA requires employers to apply this safe-load requirement to
spiral stairs, ship stairs, and alternating tread-type stairs, as well
as standard stairs. OSHA believes the safe-load requirement is
necessary to protect workers from stair collapse due to overloading,
regardless of the type of stairs they are using. OSHA notes that final
paragraph (b)(6), like the ANSI standard, applies to all stairs that
Sec. 1910.25 covers.
For the purposes of final paragraph (b)(6), a ``normal anticipated
live load'' means a dynamic load (e.g., temporary, of short duration,
or moving) that an employer reasonably anticipates will or could be
applied to the stairs (see letter to Mr. M. Podlovsky, May 8,
2000).\23\ A ``concentrated load,'' for the purposes of final paragraph
(b)(6), is the load-application point where the structure would
experience maximum stress. Thus, a normal live load is spread over the
whole stair tread area, while a concentrated load refers to a load
applied at one point on the stair tread.
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\23\ OSHA letter to Mr. Podlovsky available at: http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_id=23731.
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Final paragraph (b)(6) includes revisions that OSHA believes will
provide an equal or greater level of protection to workers than the
existing and proposed rules. For example, final paragraph (b)(6)
requires that employers ensure stairways ``can support'' the required
load, while the existing (at Sec. 1910.24(c)) and proposed rules
specify that stairways must ``be designed and constructed'' to support
the required load. The revision ensures that, in addition to the design
and construction of the stairways, the employer has an ongoing duty to
maintain the stairways to ensure they can continue to support the load
applied to them without collapse.
The final rule also revises the default strength language to
require that stairways be capable of supporting a concentrated load of
not less than 1,000 pounds ``applied at any point.'' The existing rule
requires that stairways be capable of carrying not less than a
``moving'' concentrated load of 1,000 pounds. OSHA believes the final
provision provides equal or greater level of safety by making the final
rule applicable to any single point on the stairs, particularly the
point that experiences maximum stress. These revisions are consistent
with A1264.1-2007. OSHA did not receive any comments on the proposed
provision and adopts paragraph (b)(6) with the changes discussed.
Final paragraphs (b)(7) through (9) specify when and where
employers must provide standard stairs, and under what conditions
employers may use spiral, ship, or alternating tread-type stairs. In
final paragraphs (b)(7) and (8), OSHA simplified and reorganized the
existing rule (Sec. 1910.24(b)) to make the requirements clearer and
easier to understand than the existing and proposed rules.
Final paragraph (b)(7), like proposed paragraph (a)(8) and existing
Sec. 1910.24(b), requires employers to provide standard stairs to
allow workers to travel from one walking-working surface to another.
The existing and final rules both recognize that standard
[[Page 82558]]
stairs are the principal means of providing safe access in workplaces
and employers must provide them when operations necessitate ``regular
and routine travel between levels,'' including accessing operating
platforms to use or operate equipment. The final provision is
consistent with A1264.1-2007 (Section 6.1).
For purposes of the final rule, OSHA describes ``regular and
routine travel'' in much the same way as the existing rule in Sec.
1910.24(b). The term includes, but is not limited to, access to
different levels of the workplace daily or during each shift so workers
can conduct regular work operations, as well as operations ``for such
purposes as gauging, inspection, regular maintenance, etc.'' (existing
Sec. 1910.24(b)). ``Regular and routine'' also includes access
necessary to perform routine activities or tasks performed on a
scheduled or periodic, albeit not daily, basis, particularly if the
tasks may expose employees to acids, caustics, gases, or other harmful
substances, or require workers to manually carry heavy or bulky
materials, tools, or equipment (existing Sec. 1910.24(b)).
Final paragraph (b)(7) retains the existing provision allowing the
use of winding stairways on tanks and similar round structures when the
diameter of the tank or structure is at least 5 feet. OSHA notes that
winding stairs on such tanks and structures still must meet the other
general requirements for stairways specified in the final rule. This
provision does not preclude the use of fixed ladders to access elevated
tanks, towers, and similar structures, or to access overhead traveling
cranes, etc., when the use of such ladders is standard or common
industry practice. OSHA received no comments on the proposed
requirement and adopted the provision with only minor editorial change.
Final paragraph (b)(8) allows employers to use spiral stairs, ship
stairs, and alternating tread-type stairs (collectively referred to as
``non-standard stairs''), but only when employers can demonstrate that
it is not feasible to provide standard stairs.
The existing rule (existing Sec. 1910.24(b)), which OSHA adopted
in 1972 from ANSI A64.1-1968 pursuant to section 6(a) of the OSH Act
(29 U.S.C. 655(a)), allows employers to use spiral stairs for ``special
limited usage'' or as a secondary means of access but only where it is
``not practical'' for employers to provide standard stairs. The
existing rule, however does not address either ship or alternating
tread-type stairs.
The 1973 proposed rule would have allowed the use of ship stairs
``in restricted spaces in which a fixed industrial stairway cannot be
fitted'' (38 FR 24300, 24304 (9/6/1973)), however, OSHA withdrew that
proposal (41 FR 17227 (4/23/1976)). In a 1982 letter of interpretation,
though, OSHA said if employers use ship stairs in accordance with the
1973 proposal, the Agency would consider it to be a de minimis
violation of existing Sec. 1910.24(e) (Letter to Edward Feege, August
20, 1982 \24\).
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\24\ Letter to Mr. Feege available from OSHA's Web site at:
http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_id=19042.
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That year OSHA issued Instruction STD 01-01-011 (April 26, 1982)
allowing the use of and establishing guidelines for ``a newly developed
alternating tread-type stair'' \25\ (See also, Letter to Mr. Dale
Ordoyne, December 2, 1981 \26\). To ensure worker safety, the
instruction stated that alternating tread-type stairs must be designed,
installed, used, and maintained in accordance with manufacturer's
recommendations. In addition, OSHA said alternating tread-type stairs
must meet the following requirements:
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\25\ OSHA Instruction STD 01-01-011 is available from OSHA's Web
site at: http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=DIRECTIVES&p_id=1753.
\26\ Letter to Mr. Ordoyne available from OSHA's Web site at:
http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_id=18983.
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The stairs are installed at a 70 degree angle or less;
The stairs are capable of withstanding a minimum uniform
load of 100 pounds per square foot with a design factor of 1.7 and the
treads are capable of carrying a minimum concentrated load of 300
pounds at the center of any treadspan or exterior arc with a design
factor of 1.7. If the alternating tread-type stairs are intended for
greater loading, the employer must ensure the stairs are constructed to
allow for additional loading; and
The stairs are equipped with a handrail on each side to
assist employees climbing or descending the stairs.
OSHA announced in both STD 01-01-011 and the 1982 letter of
interpretation that it would include provisions on ship stairs and
alternating tread-type stairs in the subpart D rulemaking. The 1990
proposal included provisions allowing employers to use spiral, ship,
and alternating tread-type stairs and establishing design
specifications for each type of stair (55 FR 13360, 13400 (4/10/1990)).
No final rule came from that proposal either.
In 2002, in response to an Office of Management and Budget (OMB)
request for comment on its Draft Report to Congress on the Costs and
Benefits of Federal Regulations, the Copper and Brass Fabricators
Council (CBFC) urged OSHA to revise the existing rule (Sec.
1910.24(b)) to allow the use of ship and spiral stairs in a broader
range of situations:
OSHA regulations under some circumstance require the use of
fixed ladders when spiral stairways or ship stairs would be safer .
. . [S]ection 1910.24(e) prohibits any stairs with an angle of rise
greater than 50 degrees. Unfortunately, it is very common to have a
tight location in industry where there is insufficient space for
stairs with an angle of 50 degrees or less. Traditionally, these
areas would use ship stairs that have separate handles from the
stair rail but steps that are less deep than the traditional 8 inch
to 12 inch step. Otherwise, a spiral stair was used which allowed a
deeper tread. Under the present regulation, industries are required
to use rung ladders in these locations which is less safe than
spiral stairs or ship stairs (Ex. 4).
The 2010 proposed rule expanded the existing standard to allow
employers to use spiral, ship, and alternating tread-type stairs.
Similar to the existing rule, the proposal allowed employers to use
non-standard stairs for ``special limited usage'' and ``secondary
access,'' but only when the employer can demonstrate it is ``not
practical'' to provide standard stairs in either situation (proposed
paragraph (b)(9)). The proposed rule did not define any of these terms.
Also, A1264.1-2007 did not define ``special limited use,'' but OSHA
explained in the preamble to the proposed rule that the International
Building Code (IBC)-2009 identified ``special limited usage'' area as a
space that is no more than 250 square feet (23 m\2\) and serves no more
than five occupants'' (75 FR 28882). The IBC-2009 also identifies
``galleries, catwalks and gridirons'' as examples of special limited
usage areas (75 FR 28882).
Final paragraph (b)(8) differs from the proposed rule in several
ways. First, final paragraph (b)(8) deletes the language in the
proposed rule limiting the use of non-standard stairs to ``special
limited usage'' areas and as a secondary means of access. Although the
existing, proposed, and A1264.1-2007 standards permit employers to use
non-standard stairs in special limited usage areas and for secondary
access, none of these standards defines either term. OSHA believes
eliminating those undefined terms makes the final rule easier to
understand.
Second, the final rule replaces the proposed language (i.e.,
``special limited usage and secondary access situations
[[Page 82559]]
when the employer can demonstrate it is not practical to provide a
standard stairway'') with long-standing and familiar performance-based
language (i.e., ``can demonstrate that it is not feasible to use
standard stairs''). The language in the final rule is consistent with
the legal requirements of the OSH Act. In addition, OSHA believes that
the language in the final rule gives employers greater flexibility. For
example, there may be places other than special limited use areas and
secondary access situations where an employer can demonstrate that
standard stairs are infeasible. The final rule allows employers to use
non-standard stairs in those situations.
Third, the Agency believes the performance-based language in the
final rule does a better job of targeting the areas where it is not
possible to use standard stairs and, thus, provides more protection for
workers than the existing and proposed rules. The final rule limits the
use of non-standard stairs to those situations in which it is not
possible to use standard stairs. For example, under the final rule,
employers must use standard stairs in special limited usage areas if it
is possible to install them.
OSHA requested comment on proposed rule, including whether the
final rule also should identify additional or specific limited usage
areas where employers can use non-standard stairs (75 FR 28882). Two
stakeholders said OSHA should narrow the situations in which employers
may use non-standard stairs (Exs. 97; 159). For example, NFPA stated:
[I]t appears that OSHA is proposing to allow other than Standard
Stairs to be used as long as the employer shows a Standard Stair
cannot be used. However, no criterion as to why a standard stair
could not be used is provided. Section 1910.25(a)(9) seems to allow
spiral stairs, ship stairs or alternating tread devices without any
limits. NFPA suggests OSHA establish a bracket of circumstances when
such devices can be used (Ex. 97).
In particular, NFPA recommended that OSHA limit the circumstances
in which employers may use non-standard stairs to the following list,
which are the circumstances where NFPA 101 Life Safety Code allows the
use of non-standard stairs, such as alternating tread-type stairs:
As a means to access unoccupied roof spaces;
As a second means of egress from storage elevators;
As a means of egress from towers and elevated platforms
around machinery or similar spaces, and occupied by no more than three
persons at the same time; and
As a secondary means of egress from boiler rooms or
similar spaces, and occupied by no more than three persons at the same
time (NFPA 101-2009, Section 7.2.11.1).
NFPA added that incorporating the NFPA 101-2009 list would ``close
the gap created by the proposed language and greatly limit the
circumstances by which `non-standard' stairs are acceptable for use''
(Ex. 97).
Similarly, Jacqueline Nowell, of the United Food and Commercial
Workers Union (UFCW), recommended that OSHA adopt a definition of
special limited usage that is narrower than the IBC-2009 definition:
The Agency refers to the ICC Building Code definition [of
special limited usage] as ``a space not more than 250 square feet
(23m\2\) in area and serving not more than five occupants.'' Work
platforms in many packaging houses would meet this definition of
``special limited usage.'' By allowing the use of spiral stairs or
other non-standard stairs, OSHA would be introducing a new and
unnecessary hazard to the workers who must climb up and down from
these platforms multiple times a day, wearing heavy and bulky layers
of personal protective equipment. I urge OSHA to develop a more
restricted definition of ``special limited usage'' in order to
prevent falls and other injuries to these workers (Ex. 159).
On the other hand, Southern Company (Ex. 192) said the definition
of ``special limited usage'' in IBC-2009 (i.e., ``a space not more than
250 square feet'') was too restrictive and urged OSHA to adopt a more
flexible approach (Ex. 192). They pointed out that mezzanine storage
space generally is a special limited use area, even though in many
cases the space may exceed 250 square feet (Ex. 192). They recommended
that OSHA follow the approach in STD 01-01-011 and its letters of
interpretation and allow the use of non-standard stairs when space
limitations make the use of standard stairs infeasible, regardless of
whether the space is greater than 250 square feet (Ex. 192) (See Letter
to Edward Feege (August 20, 1982) and Erin Flory (February 10, 2006)
\27\).
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\27\ Available from OSHA's Web site at: https://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_id=25301.
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OSHA believes the performance-based language in final paragraph
(b)(8) addresses many of the concerns the stakeholders raised. The
language in the final rule provides the increased flexibility that
Southern Company supports. At the same time, the final rule limits the
use of non-standard stairs to those circumstances where, based on
specific case-by-case evaluations and demonstrations, it is not
possible to use standard stairs. Thus, for example, if it is possible
to use standard stairs in a space that is less than 250 square feet,
the employer is not permitted to use non-standard stairs under the
final rule. In conclusion, OSHA adopts final paragraph (b)(8) as
discussed.
Final paragraph (b)(9), which is a new provision, requires
employers to ensure that non-standard stairs are installed, used, and
maintained in accordance with manufacturer's instructions. Since 1982,
OSHA Instruction STD 01-01-011 has applied this requirement to
alternating tread-type stairs. Although final Sec. 1910.22(d) already
requires that employers inspect and maintain walking-working surfaces
in a safe condition, OSHA believes that specifically requiring that
non-standard stairs comply with the instructions or provisions the
manufacturer has issued for the installation, use, and maintenance is
critical to ensure that unique aspects of these stairs are identified
and addressed. OSHA also believes this requirement is necessary to
minimize potential risks inherent in spiral, ship, and alternating
tread-type stairs (e.g., reduced tread depth, increased stair angle,
improper climbing techniques) and to ensure those stairs are safe for
workers to use. OSHA notes that final paragraph (b)(9), like final
Sec. 1910.22(d), applies to existing spiral, ship, and alternating
tread-type stairs as well as non-standard stairs installed after the
final rule is effective.
Finally, the Agency notes the requirements for spiral, ship, and
alternating tread-type stairs in final paragraphs (b)(8) and (9) that
employers must follow are in addition to the other general requirements
in final paragraph (b) and specific requirements in final paragraphs
(d), (e), and (f), which also apply to non-standard stairs.
Paragraph (c)--Standard Stairs
Paragraph (c) of the final rule, like proposed paragraph (b),
establishes specific requirements for standard stairs that apply in
addition to the general requirements in final paragraph (b). OSHA
believes these specific requirements are the minimum criteria necessary
to ensure workers can negotiate standard stairs safely. The
requirements in final paragraph (c) generally are consistent with the
A1264.1-2007 standard and most of the requirements are in the existing
rule.
Final paragraph (c)(1), like proposed paragraph (b)(1) and existing
Sec. 1910.24(e), requires employers to install standard stairs at
angles between 30 and 50 degrees from the horizontal. The final rule is
consistent with
[[Page 82560]]
A1264.1-2007, which permits employers to install standard stairways at
angles between 30 and 70 degrees from the horizontal, depending on the
type of stairs. The final standard includes a diagram explaining that
the slope for standard stairs is 30 to 50 degrees (see Figure D-10).
OSHA received no comments on the proposal and adopted the provision as
proposed.
Final paragraphs (c)(2) and (3), like proposed paragraphs (b)(2)
and (3), require that employers ensure standard stairs have a maximum
riser height and minimum tread depth of 9.5 inches.\28\ The final rule
also includes an exception (final paragraph (c)(5)) on riser heights
and tread depths for standard stairs installed prior to the effective
date of the final rule, which is January 17, 2017. The exception
specifies that employers will be in compliance with the riser height/
tread depth requirements if they meet the dimensions specified in the
note to final Sec. 1910.25(c)(2) and (3), or if they use a combination
that achieves the required angle range of 30 to 50 degrees.
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\28\ Riser height is a vertical distance that is measured from
the tread (horizontal surface) of one step to the top of the leading
edge of the tread above it. Tread depth is a horizontal distance
that is measured from the leading edge of a tread to the point where
that tread meets the riser (See Sec. 1910.25, Figure D-8). This
method of measuring riser height and tread depth is consistent with
NFPA 101-2009 (Section 7.2.2.3.5) and IBC (Section 1009.7.2).
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The existing rule (Sec. 1910.24(e)) does not specify a maximum
riser height or minimum tread depth for fixed stairs. Instead, it
requires that fixed stairs be installed at an angle of 30 to 50 degrees
from horizontal and allows employers to use any combination of uniform
riser and tread dimensions that achieves a stairway angle within the
required range. To assist employers, the existing rule (Sec.
1910.24(e), Table D-1) provides examples of riser height and tread
depth combinations that will achieve the required angle range. The
existing rule also specifies that employers may use riser and tread
combinations other than those listed in Table D-1, provided they
achieve a stairway angle that is within the required slope of 30 to 50
degrees.
Like the final rule, A1264.1-2007 (Section 6.5) requires a 9.5-inch
maximum riser height and minimum tread depth. And like the existing
rule, A1264.1-2007 also allows employers to use any combination of
riser and tread dimensions that achieve a stair angle within the
permissible range. OSHA notes that A1264.1-2007 (Section E6.4)
specifies that the permissible angle range for ``typical fixed stair''
is 30 to 50 degrees, which is consistent with the existing and final
rules.
OSHA believes that the riser height and tread depth requirements in
final paragraphs (c)(2) and (3), respectively, are simpler, clearer,
and easier to understand and follow than the existing rule. The final
rule also makes it easier for employers to achieve the required stair
angle range of 30 to 50 degrees in final paragraph (c)(1).
OSHA received several comments on the proposed riser height and
tread depth requirements. For example, Ellis Fall Safety Solutions (Ex.
155) advocated that OSHA follow the maximum riser heights and minimum
tread depths of 7 and 11 inches, respectively, in IBC-2009, stating,
``If other locations in commerce are 7/11 why should we not find that
at work too? Also it is less tiring for workers to climb a 7/11 stair .
. . . OSHA should not be different than the IBC Building Code in this
instance'' (Ex. 155).
To reduce employer burdens, Ellis also suggested that the final
rule include a provision grandfathering in the riser and tread
dimensions of existing stairways until employers do ``major
renovation'' of the stairs (Ex. 155). Southern Company agreed that OSHA
should grandfather in existing stairways that have a tread depth of
less than 9.5 inches, ``[W]e have not seen data that an existing
stairway with an 8 inch tread depth produces an increase in the fall
exposure that would justify replacing these stairs. Absent data . . .
we feel these stairs should be grandfathered'' (Ex. 192).
NFPA, on the other hand, said there was ``no technical
justification'' for allowing a tread depth of less than 9.5 inches,
especially since it was more lenient than the 11-inch tread depth
requirement in new IBC codes (Ex. 97).
OSHA agrees with NFPA that the 9.5-inch minimum tread requirement
in the proposed, final, and A1264.1-2007 standards provides stepping
space that is adequate to protect workers from falling. Although
A1264.1-2007 (Section 6.5) requires a 9.5 maximum riser height and
minimum tread depth, an explanatory note also suggests that employers
consider the riser and tread requirements in IBC codes. OSHA notes that
employers who have or install standard stairs with an 11-inch tread
depth, which IBC-2009 requires, are in compliance with the final rule.
Moreover, as mentioned above, OSHA grandfathers in the riser heights
and tread depths of existing stairs even if they are less than 9.5
inches, which addresses the concerns of Southern Company.
OSHA removed from final paragraph (c)(3) the proposed exception
from the minimum tread-depth requirement for stairs with open risers.
OSHA adopted the proposed exception from the 9.5-inch tread-depth
requirement for open risers from A1264.1-2007. A note to that standard
explained: ``Open risers are needed on certain narrow tread and steep
angled stair systems and exterior structures'' (Section E6.13.).
NFPA opposed the proposed exception, saying that allowing a tread
depth of less than 9.5 inches for open risers is problematic in two
ways:
(1) Where open risers are present, not only does the specific
9.5-inch not apply, but no minimum tread depth is specified. The
tread depth could be as little as 3-4 inches. (2) Stairs are used
for travel in the downward direction at least as much as they are
used for travel in the upward direction. An open riser might help to
provide some extra ``effective'' tread depth for persons using the
stair for upward travel. . . . [However,] [a]n open riser does not
create greater effective tread depth for persons using the stair for
downward travel (Ex. 97).
In addition, NFPA maintained that there is no technical justification
for permitting a tread depth of less than 9.5 inches when the riser is
open, stating, ``The 9.5-inch minimum tread depth specified [in
paragraph (c)(3)] is already lenient as compared to the minimum 11-inch
tread depth required in new construction model codes. The exemption for
open risers should be deleted'' (Ex. 97). OSHA agrees with NFPA and,
therefore, removed the proposed exception for standard stairways with
open risers from the final rule.
Final paragraph (c)(4), like proposed paragraph (b)(4), requires
that employers ensure standard stairs have a minimum width of 22 inches
between vertical barriers. Examples of vertical barriers include stair
rails, guardrails, and walls. The added language makes the final
provision more protective than the existing rule (Sec. 1910.24(d)),
which also requires a tread width of 22 inches but does not specify how
to measure the width. The additional language makes the final rule
consistent with A1264.1-2007, which requires a minimum clear width of
22 inches. OSHA did not receive any comments on the proposed provisions
and adopts the provision as proposed.
The requirements for non-standard stairs in final paragraphs (d)
(spiral stairs), (e) (ship stairs), and (f) (alternating tread-type
stairs) parallel most of the provisions established for standard stairs
in paragraph (c). Like the requirements for standard stairs, the
requirements for spiral, ship, and alternating tread-type stairs
represent the minimum requirements OSHA believes are necessary to
ensure that
[[Page 82561]]
employees are able to move safely from one walking-working surface to
another. OSHA adopted the requirements for non-standard stairs from
A1264.1-2007, NFPA 101-2012, and IBC-2012.
Paragraph (d)--Spiral Stairs
Final paragraph (d), like proposed paragraph (c), establishes
specific requirements for spiral stairs. As mentioned earlier, these
requirements apply in addition to the general requirements in paragraph
(a). OSHA adopted most of the requirements in final paragraph (d) from
NFPA 101-2012. OSHA believes that the vast majority of spiral stairs
currently in use already meet the requirements in final paragraph (d)
because these spiral stairs conform to the current industry practice
expressed in this NFPA standard. Therefore, OSHA believes employers
will not have difficulty complying with the final rule.
Final paragraph (d)(1), like paragraph (c)(1) of the proposed rule,
requires that employers ensure spiral stairs have a minimum clear width
of 26 inches. The ``clear'' width requirement in final paragraph (d)(1)
is similar to the approach in final paragraph (c)(4) and A1264.1-2007
(Section 6.3). That is, the width is measured from the vertical barrier
on the outside of the stairway to the inner pole onto which the treads
are attached. Spiral stairs need a greater width than standard stairs
because only the outside portion of the stairs can be stepped on since
the inner part of treads are too short in depth. OSHA did not receive
any comments on the proposed provision and adopts the provision as
proposed.
Final paragraph (d)(2), like proposed paragraph (c)(2) and final
paragraph (c)(3), requires that employers ensure that spiral stairs
have risers with a maximum height of 9.5 inches. OSHA did not receive
any comments on the proposed provision, and the final rule adopts the
provision as proposed.
Final paragraph (d)(3) requires that employers ensure spiral stairs
have a minimum headroom above the spiral stair treads of at least 6
feet, 6 inches. The final rule also requires that employers measure the
vertical clearance from the leading edge of the tread. This requirement
means that, at any and every point along the leading edge, the minimum
headroom must be at least 6 feet, 6 inches. The proposed rule
(paragraph (c)(3)) specifies that same minimum headroom, but proposed
to measure it at the center of the leading edge of the tread. OSHA
believes it is necessary to revise the method for measuring the
vertical clearance to prevent injury to workers when using spiral
stairs. The minimum headroom the final rule requires for spiral stairs
is two inches less than the headroom final paragraph (b)(2) requires
for all other stairways. Because the required headroom is less, OSHA
believes it is important that employers measure the required minimum
headroom at all points along the leading edge. OSHA did not receive any
comments on the provision and adopts the proposed provision with the
change discussed.
To ensure that workers are able to maintain safe footing while
using spiral stairs, final paragraph (d)(4), like proposed paragraph
(c)(4), requires that employers ensure spiral stairs have a minimum
tread depth of 7.5 inches. Because the tread depth on a spiral stair is
not the same across the width of the tread, the final rule also
requires that employers measure the minimum tread depth at a point 12
inches from the narrower edge. This requirement ensures that workers
will have adequate space at the point on the tread where they are most
likely to step.
Although the minimum tread depth final paragraph (d)(4) requires is
less than that for standard stairs, OSHA has several reasons for
concluding that the minimum 7.5-inch tread depth is adequate to provide
safe footing for workers. First, spiral stairs usually have open risers
that provide additional space for the foot. Second, employers use
spiral stairs where space restrictions make the use of standard stairs
infeasible. In restricted-space situations, there may be insufficient
room for stairways with 9.5-inch tread depths. Third, final paragraph
(d)(4) is consistent with NFPA 101-2012. OSHA did not receive any
comments on the proposal and adopts the provision as proposed.
Final paragraph (d)(5), like proposed paragraph (c)(5), requires
that employers ensure spiral stairs have a uniform tread size. As OSHA
mentioned in the discussion of paragraph (b)(3), this requirement is
necessary because, in the Agency's experience, even small variations in
tread size and shape may cause trips and falls. OSHA did not receive
any comments on the proposed rule and adopts it as proposed.
Paragraph (e)--Ship Stairs
Final paragraph (e), like proposed paragraph (d), provides specific
requirements employers must follow in situations where they may use a
type of stair commonly referred to as a ``ship stair'' or ``ship
ladder.'' Employers often use ship stairs as a means to bypass large
equipment, machinery, or barriers in tight spaces. OSHA drew some of
the provisions in final paragraph (e) from the A1264.1-2007 standard.
The requirements in final paragraph (e) apply in addition to the
general requirements specified in paragraph (a) above. In addition,
OSHA is reorganizing some of the provisions in final paragraph (e) to
make the paragraph easier to follow and understand. For example, OSHA
is grouping the riser requirements into one provision (final paragraph
(e)(2)).
OSHA notes that the requirements in final paragraph (e) apply only
to ship stairs used in general industry. Some commenters raised
concerns about whether OSHA was applying the requirements in paragraph
(e) to ship stairs used on vessels. For example, Northrop Grumman
Shipbuilding (NGS) said:
OSHA has included a definition (Sec. 1910.21(b)) and design
requirements for ship stairs. . . . [W]e wish to clarify that
despite the inclusion of the term ``ship stairs'' in the standard,
OSHA is not attempting to extend application of the design criteria
for ladders, stairs or other walking-working surfaces to vessels,
which we believe are under the regulatory authority of the United
States Coast Guard (Ex. 180).
Mercer ORC Networks raised similar concerns:
Mercer believes that OSHA intends to apply this definition to a
particular stair or ladder configuration wherever it is found,
whether on a ship or in a land-based facility. However, if one reads
the definition literally (which should be possible with
regulations), one might easily conclude that unless the stairs or
ladder are actually aboard a ship, they do not fit the regulation
(Ex. 254).
Using the longstanding industrial term ``ship stairs'' does not
mean that this final rule applies to any industry sectors or workplaces
beyond general industry, or working conditions regulated by other
agencies. As mentioned in Sec. 1910.21, OSHA considers ``ship stairs''
to be a term of art for a type of stairway used when standard stairs
are not feasible. OSHA recognizes that, historically, vessels used ship
stairs to access different levels in restricted spaces. Today, however,
employers use these stairs in other situations, including general
industry workplaces. OSHA continues to use the term in the final rule
to refer to a particular stair design, and not to designate where
employers install or use them (see discussion of ship stairs in Sec.
1910.21(b)).
Final paragraph (e)(1), like paragraph (d)(1) of the proposed rule,
requires that employers ensure ship stairs are installed at a slope of
50 to 70 degrees from the horizontal. As A1264.1-2007 indicates, this
slope range is standard
[[Page 82562]]
for ship stairs (see Figure 6.4 of A1264.1). OSHA did not receive any
comments on the proposed provision and adopts it as proposed.
Final paragraph (e)(2), like paragraph (d)(2) of the proposed rule,
addresses risers on ship stairs. First, the provision requires that
employers ensure ship stairs have open risers. The final rule is
consistent with A1264.1-2007 (Section 6.13), which requires that ship,
spiral, and alternating tread-type stairs having a tread depth of less
than 9.5 inches must have open risers. The A1264.1-2007 standard
explains that open risers are necessary for stairs with narrow tread
depth, such as stairs used in restricted space (Sections E6.5 and
E6.13). An open riser gives workers additional space to ensure they are
able to maintain safe footing on treads that have a narrow tread depth
due to the limited space.
Second, final paragraph (e)(2), like proposed paragraph (d)(3),
requires that employers ensure ship stairs have a vertical rise between
tread surfaces of at least 6.5 inches and not more than 12 inches. For
clarity, OSHA moved the proposed requirement to paragraph (e)(2)
because it also addresses stair risers. OSHA did not receive any
comments on the proposed ship stair requirements for open risers and
acceptable riser height and adopts the provision as proposed.
Final paragraph (e)(3), like proposed paragraph (d)(3), requires
that employers ensure ship stairs have a minimum tread depth of 4
inches. Employers must apply final paragraph (e)(3) in combination with
paragraph (e)(2). Although the required 4-inch minimum tread depth for
ship stairs is less than the 9.5-inch minimum tread depth required for
standard stairs (final paragraph (c)(3)), nevertheless, OSHA believes
the tread depth is adequate to ensure that workers have a safe stepping
area because final paragraph (e)(2) requires that ship stairs have open
risers. As discussed, open risers give workers additional space to
maintain safe footing on ship stairs. Also, together the riser and
tread requirements in final paragraphs (e)(2) and (3), respectively,
set the necessary framework for employers to achieve the required 50-
to 70-degree angle range for ship stairs. OSHA did not receive any
comments on the proposed provision and adopts the provision as
discussed.
Final paragraph (e)(4), like proposed paragraph (d)(3), requires
that employers ensure ship stairs have a minimum tread width of 18
inches. Although the required tread width for ship stairs is 4 inches
less than that specified in final paragraph (c)(4), OSHA believes this
width is adequate for stairs that employers may use only in certain
limited situations, such as in restricted spaces where it is not
feasible to use standard stairs. OSHA notes that the final rule makes
the tread-width requirement a stand-alone provision, which makes
paragraph (e)(4) consistent with the other tread-width provisions in
Sec. 1910.25. The Agency did not receive any comments on the proposed
tread width provision and adopted it as proposed.
Paragraph (f)--Alternating Tread-Type Stairs
Final paragraph (f), like proposed paragraph (e), establishes
specific requirements for those situations in which employers may use
alternating tread-type stairs. The requirements in final paragraph (f)
apply in addition to the general requirements in final paragraph (b).
The Agency based the requirements on OSHA Instruction STD 01-01-011 and
three national consensus standards (A1264.1-2007, NFPA 101-2012, and
IBC-2012).
Final paragraph (f)(1), like proposed paragraph (e)(1), requires
that employers ensure the series of treads installed in alternating
tread-type stairs have a slope of 50 and 70 degrees from the
horizontal. As A1264.1-2007 indicates, this slope range is standard for
alternating tread-type stairs (see Figure 6.4). Final (f)(1) also is
consistent with OSHA Instruction STD 01-01-011, which specifies that
alternating tread-type stairs must have a slope angle of 70 degrees or
less. OSHA did not receive any comments on the proposed requirement and
adopts the provision as proposed.
Final paragraph (f)(2), like proposed paragraph (e)(2) and proposed
Sec. 1910.28(b)(11)(iii), specifies the required horizontal distance
between handrails. It requires that employers ensure the distance
between the handrails on alternating tread-type stairs is not less than
17 inches and not more than 24 inches.
OSHA Instruction STD 01-01-011, which allows employers to use
alternating tread-type stairs, does not specify a minimum width between
handrails. The existing (Sec. 1910.24(d)), proposed (proposed
paragraph (b)(4)), and final rules (final paragraph (c)(4)) require
that employers ensure standards stairs have a minimum 22-inch tread
width between vertical barriers (i.e., handrails). Similarly, A1264.1-
2007 (Section 6.3) requires that all fixed stairs have a minimum
``clear width'' of 22 inches, which, in other words, means that the
distance between handrails must be at least 22 inches.
OSHA believes the handrail distance requirement in the final rule
better effectuates the purposes of the OSH Act than A1264.1-2007.
First, alternating tread-type stairs can pose unique issues. OSHA
believes the 17- to 24-inch handrail distance is appropriate and
provides needed flexibility to address those issues. For example, as
A1264.1-2007 (Section E6.1.1) points out, some alternating tread-type
stairs are built so that workers need to descend facing away from the
stairs, which makes three-point contact ``a necessity.'' For those
stairs, OSHA believes that the distance between handrails may need to
be adjusted so workers are able to maintain critical three-point
contact while they are descending the stairs.
Second, the final 17- to 24-inch handrail distance requirement is
established specifically for the alternating tread-type stairs. By
contrast, the 22-inch width requirement in A1264.1-2007 applies to all
fixed stairs and does not take into consideration the issues and
limitations involved with alternating tread-type stairs. Therefore,
OSHA believes the flexibility that final paragraph (f)(2) provides,
combined with its specific consideration of the issues involving
alternating tread-type stairs, ensures that the final rule will provide
appropriate protection.
Finally, adopting a 17- to 24-inch handrail distance is consistent
with the NFPA 101-2012 requirement for alternating tread-type stairs
(Section 7.2.11.2). Unlike A1264.1-2007, the NFPA 101 standard
establishes handrail width requirements specific to alternating tread-
type stairs and the unique issues and limitations those stairs involve.
OSHA is therefore following the NFPA 101-2012 standard in accordance
with section 6(b)(8) of the OSH Act (29 U.S.C. 655(b)(8)).
OSHA notes that since 1986, OSHA Instruction STD 01-01-011 has
required that alternating tread-type stairs ``be equipped with a
handrail on each side'' to assist workers using the stairs. Final
paragraph (f)(2) (i.e., ``between handrails'') is consistent with that
instruction. OSHA did not receive any comments on proposed paragraph
(f)(2) and adopts as discussed.
Final paragraphs (f)(3) and (f)(4) address tread depth for
alternating tread-type stairs. Final paragraph (f)(3), like proposed
paragraph (e)(3), requires that employers ensure alternating tread-type
stairs have a tread depth of at least 8.5 inches. However, if the tread
depth is less than 9.5 inches, final paragraph (f)(4), like proposed
paragraph (e)(4), requires that employers ensure alternating tread-type
stairs have open risers. The A1264.1-2007 standard
[[Page 82563]]
contains the same requirement (Section 6.13), explaining that open
risers are necessary on stairs with narrow treads (Section E6.13). OSHA
did not receive any comments on the proposed provisions, which the
final rule adopts with only minor editorial changes.
Final paragraph (f)(5), like proposed paragraph (e)(5), requires
that employers ensure that each tread has a minimum width of 7 inches
measured at the leading edge (nosing) of the tread. The measurement is
taken at the leading edge of the tread because treads on many of these
types of stairs narrow at the back of the tread. This requirement is
based on a requirement in the IBC-2012 (Sec. 1009.13.2). OSHA did not
receive any comments on the proposed requirements and adopts the
provisions as proposed.
Section 1910.26--Dockboards
Section 1910.26 of the final rule establishes requirements for the
design, performance, and use of dockboards. The final rule updates the
existing requirements for dockboards (existing Sec. 1910.30(a)).\29\
For example, the final rule deletes the existing requirement that the
design and construction of powered dockboards conform to the 1961
Department of Commerce (DOC) Industrial Lifts and Hinged Loading Ramps
Commercial Standard (CS202-56). ANSI/ITSDF B56.1 (2012) and other
recently updated national consensus standards supersede the DOC
standard. These standards include:
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\29\ The final rule also deletes the existing requirements for
forging machine areas and veneer machinery in existing Sec.
1910.30(b) and (c), respectively. OSHA believes these requirements
are not necessary because Sec. 1910.22(b) of the final rule, as
well as other general industry standards (e.g., 29 CFR part 1910,
subpart O (Machinery and Machine Guarding)) already address those
hazards. For example, subpart O includes standards on forging
machines (Sec. 1910.218).
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American National Standards Institute (ANSI)/Industrial
Truck Standards Development Foundation (ITSDF) B56.1-2012, Trucks, Low
and High Lift, Safety Standard (B56.1-2012) (Ex. 384);
ASME/ANSI MH14.1-1987, Loading Dock Levelers and
Dockboards (MH14.1-1987) (Ex. 371);
ANSI MH30.1-2007, National Standard for the Safety
Performance, and Testing of Dock Loading Devices (MH30.1-2007) (Ex.
372); and
ANSI MH30.2-2005, Portable Dock Loading Devices:
Standards, Performance, and Testing (MH30.2-2005) (Ex. 20).
Both the proposed and final rules adopted provisions that generally
are consistent with these national consensus standards. Final Sec.
1910.26 applies to all dockboards unless a provision states otherwise.
The final rule (final Sec. 1910.12(b)) defines a dockboard as a
portable or fixed device used to span a gap or compensate for a
difference in height between a loading platform and a transport
vehicle. Dockboards may be powered or manual, and include, but are not
limited to, bridge plates, dock levelers, and dock plates.
``Loading platforms,'' as used in the definition of dockboards,
include loading docks, interior floors, driveways or other walking or
working surfaces. ``Transport vehicles,'' as used in the definition and
in the final rule, are cargo-carrying vehicles that workers may enter
or walk onto to load or unload cargo and materials. Transport vehicles
include, but are not limited to, trucks, trailers, semi-trailers and
rail cars. Employers primarily use transfer vehicles on dockboards in
order to move cargo and materials on and off transport vehicles.
``Transfer vehicles,'' which are mechanical powered or non-powered
devices to move a payload, include, but are not limited to, powered
industrial trucks, powered pallet movers, manual forklifts, hand carts,
hand trucks, and other types of material-handling equipment. Transfer
vehicles include all mechanical handling equipment that 29 CFR part
1910, subpart N, covers.
These descriptions of transport vehicles and transfer vehicles are
consistent with the definitions of those terms in the MH30.1-2007 and
MH 30.2-2005 consensus standards. In proposed Sec. 1910.26(d), OSHA
used the term ``equipment'' to reference all types of transfer
vehicles. OSHA believes the term ``transport vehicle'' more accurately
describes the types of equipment OSHA intends to cover in final Sec.
1910.26.
Paragraph (a) of the final rule, like proposed paragraph (a),
requires that employers ensure that the dockboards are capable of
supporting their maximum intended load. Section 1910.21(b) of the final
rule defines ``maximum intended load'' as the total load (weight and
force) of all workers, equipment, vehicles, tools, materials, and other
loads that the employer ``reasonably anticipates'' to be applied to a
walking-working surface at any one time. OSHA recognizes that not all
dockboards are equal, and some employers may have multiple dockboards
with different capacities. Some dockboards are made of lightweight
materials, such as aluminum, designed to support lighter loads such as
those that typically occur with manual material handling methods. Other
dockboards, such as those made of steel, are typically designed to
accommodate a heavier load, such as a laden powered industrial truck.
Additionally, portable dockboards may be carried on transport vehicles
for use at various loading platforms and subjected to a wide range of
anticipated loads.
The final rule differs from existing Sec. 1910.30(a)(1) in that
the existing rule requires dockboards to be strong enough to carry the
load imposed on them. As OSHA explains in the discussion of final Sec.
1910.21(b), the term ``maximum intended load'' applies not only to
total loads currently applied to a walking-working surface, such as a
dockboard, but also to total loads that the employer has a reasonable
anticipation will be placed on the walking-working surface.
The provision for loads in final Sec. 1910.22(b) requires that
employers ensure all walking-working surfaces are capable of supporting
the maximum intended load that will be applied to that surface. OSHA
believes it is important for clarity to include this performance-based
requirement in Sec. 1910.26. OSHA included the provision in final
Sec. 1910.26(a) to emphasize that the final rule revised the load
criteria in the existing rule from ``load imposed'' to ``maximum
intended load.'' Also, OSHA included the load requirement in this
section to emphasize that it applies to all dockboards that workers
use, regardless of whether the employer or some other entity owns or
provides the dockboard; whether the dockboard is portable, fixed,
powered, or manual; or whether the employer uses the dockboard as a
bridge to a transport vehicle. Finally, OSHA included the requirement
in this section to stress that, consistent with MH14.1-1987 (Section
2), the design and construction of all load-supporting parts of the
dockboard must ensure that the dockboard unit as a whole, when under
load, is capable of supporting the maximum intended load.
The national consensus standards also provide guidance to help
employers comply with final paragraph (a). For example, MH14.1-1987 and
MH30.2-2005 identify factors and circumstances employers should
consider when ensuring their dockboards meet the load requirement in
final paragraph (a): ``In selecting dock leveling devices, it is
important [for employers/owners] to consider not only present
requirements but also future plans or adverse environments'' (MH14.1-
1987 (Section 3.1(j) and MH30.2-2005 (Section 6.2.9))).
The MH14.1-1987 standard requires that load-supporting parts of
dockboards, including structural steels
[[Page 82564]]
and other materials, when under load, conform to American Society for
Testing and Materials (ASTM) standards, and that all welded connections
on dockboards comply with American Institute of Steel Construction
standards (Sections 2(a) and (b)). Similarly, the MH30.1-2007 standard
recommends that owners and employers never use dockboards outside the
manufacturer's rated capacity (Section 5.4.10). OSHA believes the
guidance these national consensus standards provide will help employers
ensure that dockboards are able to carry, and do not exceed, the
maximum intended load. OSHA did not receive any comments on the
proposed provision and adopts it with editorial revisions.
Final paragraph (b)(1), like the proposed rule, requires employers
to ensure that dockboards put into initial service on or after the
effective date of the final rule, January 17, 2017, are designed,
constructed, and maintained to prevent transfer vehicles from running
off the dockboard edge. In other words, dockboards put into service for
the first time starting on the effective date of the final rule must
have run-off protection, guards, or curbs. A ``run-off guard,'' as
defined in the MH14.1-1987 standard, is ``a vertical projection running
parallel with the normal traffic flow at each side extremity of the
dockboard. Its intent is to avoid accidental side exit'' (Section 1.3;
see also MH30.1-2007 (Section 1.2.16) and MH30.2-2005 (Section 2.9))).
For example, run-off protection on many dockboards is simply a lip on
the side of the dockboard that is bent 90 degrees from the horizontal
portion of the dockboard. The existing rule does not include a similar
requirement.
OSHA believes this provision is necessary to protect workers. A
transfer vehicle that runs off the side of a dockboard could kill or
injure employees working on or near it. For example, forklifts used to
load items onto a transport vehicle could seriously injure or kill the
operator and nearby workers if the forklift runs off the side of the
dockboard. In addition, workers using hand trucks to load and unload
materials from a truck could lose their balance and fall if there is no
run-off guard to prevent the hand truck from running off the side of
the dockboard.
Final paragraph (b)(1) is a performance-based version of the run-
off protection requirements in national consensus standards. To
illustrate, the MH14.1-1987 standard specifies:
Run-off guards shall be used for units that bridge an opening in
excess of 36 in. (910 mm) from the face of the dock. The minimum
run-off guard height shall be 2\3/4\ in (70 mm) above the plate
surface. Ends of run-off guards shall be contoured both horizontally
and vertically to permit a smooth transition to minimize damage to
the tires of handling equipment. (Section 3.2(a); see also Sections
3.4(c), 3.5, 3.6.)
The MH30.1-2007 and MH30.2-2005 standards also contain similar
specifications (MH30.1-2007 (Sections 5.3.2, 5.3.3) and MH30.2-2005
(Section 6.1.4)) to prevent transfer equipment from accidentally
running off the side of the dockboard. OSHA will deem employers that
comply with the run-off protection specifications in MH14.1-1987,
MH30.1-2007, or MH30.2-2005 as being in compliance with final paragraph
(b)(1). OSHA also will consider employers that follow a different
approach, or use dockboards with run-off guards of a different height,
to be in compliance with the final rule, provided the run-off guards
they use are effective in preventing transfer vehicle from running off
the dockboard side.
OSHA made several revisions to proposed paragraph (b) in the final
rule. First, final paragraph (b)(1) clarifies that this provision is
prospective only, that is, it only applies to dockboards put into
``initial service'' on or after the effective date of the final rule.
The final rule grandfathers existing dockboards (75 FR 29009-10),
meaning employers do not have to replace or retrofit dockboards
currently in use.
Second, OSHA revised the compliance deadline for this provision.
The effective date specified by the proposed rule was 90 days after the
effective date of the final rule. After reviewing the record, OSHA does
not believe that the longer proposed compliance phase-in period is
necessary because the national consensus standards on which OSHA based
final paragraph (b) have been in place for many years. As such, OSHA
believes many dockboards currently in use, and virtually all dockboards
manufactured today, already have run-off guards. Therefore, OSHA does
not believe the compliance date in final paragraph (b) will impose an
undue burden on employers.
Third, OSHA added an exception (final paragraph (b)(2)) in response
to a comment the Agency received on the proposed provision. The
American Trucking Associations, Inc., (ATA) (Ex. 187) said the proposed
rule was ``very broad'' and opposed the requirement that all dockboards
have run-off protection:
To load or to unload, the driver of the commercial motor vehicle
backs up to the dock slowly and does not stop until contacting the
dock or the installed dock bumper blocks. In most cases, the gap
between the vehicle and the loading dock is no more than a few
inches. Either a dock leveler or portable dockboard is used to
reduce even this minimal amount of space. There is insufficient
space between the terminal and the truck to permit a powered
industrial truck loading or unloading freight to fall to the ground.
OSHA's proposed requirement that portable dockboards and dock
plates be provided with edging and curbing is ill-conceived.
Moreover, there is no space between the side of the truck and the
edge of dock bay opening to allow for a forklift truck to run off of
the edge to cause death or injury to the employee.
Further, this requirement actually would reduce safety for
employees in the trucking industry, as providing curbing on dock
plates would create a tripping hazard for employees walking on the
plates (Ex. 187).
Accordingly, ATA recommended that OSHA revise paragraph (b) to
specify:
[C]urbing on dockplates to prevent a vehicle from running off
the edge of a ramp or bridging device is not required where there is
insufficient space for a vehicle using the device to run off the
edge and drop to the ground. Any requirement for curbing on the
edges of ramps and bridging devices should be limited to those
working environments where a true fall-off hazard exists (Ex. 187).
The Agency agrees with ATA that run-off protection is not necessary
when there is insufficient space for equipment to run off the side of
the dockboard. Accordingly, OSHA added an exception to final paragraph
(b)(1) specifying that employers do not have to use dockboards equipped
with run-off guards if there is no fall hazard to guard against. This
exception is consistent with MH14.1-1987, MH30.1-2007, and MH30.2-2005,
which only require run-off guards when the opening the dockboard
bridges exceeds 36 inches (MH14.1-1987 (Sections 3.2(a), 3.4(c), 3.5,
3.6) and MH30.2-2005 (Section 6.1.4)). Unlike the national consensus
standards, final paragraph (b)(1) does not specify what size of opening
on the dockboard constitutes a run-off hazard. In some circumstances,
an opening of less than 36 inches may pose a fall hazard. As such, OSHA
believes the most effective way to determine whether a hazard exists is
for employers to evaluate whether a particular opening poses a hazard,
including considering factors such as the type and size of transfer
vehicle the worker is using.
Paragraph (c) of the final rule, like existing Sec. 1910.30(a) and
the proposed rule, requires employers to secure portable dockboards by
anchoring them in place or using equipment or devices to prevent the
dockboard from moving out of a safe position. The final rule also
specifies that, when the employer can demonstrate that it is not
feasible to
[[Page 82565]]
secure the dockboard, the employer must ensure that there is sufficient
contact between the dockboard and the surface to prevent the dockboard
from moving out of a safe position.
OSHA believes this provision is necessary to protect workers from
injury or death. If the employer does not securely anchor the dockboard
or equip it with a device that prevents movement, it could slide or
drop off of the loading platform or transport vehicle, and the worker
could fall. Workers also could fall if the dockboard moves or slides
while they are on it. In addition, failure to secure a dockboard could
expose workers to crush or caught-in hazards if the dockboard moves,
and pins or strikes the worker, or causes the load the worker is moving
to shift or fall against the worker.
Final paragraph (c) is consistent with B56.1-2012. That standard
also requires anchoring or equipping portable dockboards with devices
that prevent the dockboards from slipping (Section 4.13.2). B56.1-2012
does not include any requirements for employers to follow when
anchoring or equipping portable dockboards from slipping is not
feasible. It does require, like final paragraph (c), dockboards of all
types be designed and maintained so the ends have ``substantial
contact'' with the dock and transport vehicle to prevent the dockboard
from ``rocking or sliding'' (Section 4.13.5). Similarly, MH14.1-1987
(Section 3.7(b)), MH30.1-2007 (Section 5.1.7), and MH30.2-2005 (Section
6.2.2) require at least 4-inch overlap between the edge of a dockboard
and the edge of the supporting surface (e.g., dock, platform, trailer
track bed). OSHA did not incorporate a specific minimum overlap in the
final rule because it believes that what constitutes an adequate
overlap may involve a number of factors that employers need to
determine on a case-by-case basis. OSHA did not receive any comments on
proposed paragraph (c) and finalized the paragraph as discussed.
Final paragraph (d), like the proposed rule, requires that
employers provide and use measures (e.g., wheel chocks, sand shoes) to
prevent transport vehicles from moving while dockboards are in place
and workers are using them. OSHA believes it is necessary to prevent
transport vehicles from moving in order to protect workers from falling
when they work on dockboards. If a transport vehicle moves when a
worker is on the dockboard, the sudden movement may cause the worker to
fall off the dockboard or the dockboard may be displaced and fall to
the ground along with the worker.
The proposed and final rules expand the existing rule (Sec.
1910.30(a)(5)), which only requires that employers prevent ``rail
cars'' from moving when workers are using dockboards to load/unload
cargo. However, workers also are exposed to fall hazards when they use
dockboards to load/unload other types of transport vehicles. As a
result, OSHA expanded the existing rule to ensure that workers are
protected whenever they use dockboards, regardless of the type of
transport vehicle workers are loading/unloading.
The final rule gives employers flexibility in selecting measures to
prevent the transport vehicle from moving. Employers must ensure
whatever measures they use are effective in preventing movement,
regardless of the type of transport vehicle the employer is loading/
unloading. For example, for wheel chocks, which are one of the most
frequently used measures to prevent transport vehicles from moving, the
size of the transport vehicle wheel determines the size of the wheel
chock that will be effective to prevent the vehicle from moving.
OSHA received one comment on the proposed rule. ATA said the
requirement is both unnecessary and conflicts with section (4)(b)(1) of
the OSH Act (29 U.S.C. 653(b)(1)):
FMCSA's [Federal Motor Carrier Safety Administration] brake
regulations address this condition and preclude OSHA's wheel
chocking requirements. Jurisdiction in this matter was asserted in a
2001 letter from then FMCSA Acting Deputy Administrator Julie
Cirillo to OSHA officials. The letter clearly asserts FMCSA's
exclusive jurisdiction over the immobilization of parked vehicles in
stating that FMCSA's parking brake regulations were ``written
specifically to protect truck drivers and anyone else who might be
injured by inadvertent movement of a parked commercial motor
vehicle.'' . . . We believe [FMCSA] brake regulations constitute an
`exercise of statutory authority' to prescribe or enforce standards
or regulations affecting occupational safety or health (Ex. 187).
Department of Transportation (DOT) regulates interstate
transportation of ``commercial motor vehicles'' (CMV) traveling on
public roads, thus, pursuant to section 4(b)(1) of the OSH Act, OSHA is
preempted. DOT regulations define a CMV, in part, as a self-propelled
or towed vehicle used on the highways in interstate commerce, if the
vehicle:
Has a gross vehicle weight rating or gross vehicle weight
of at least 10,001 pounds, whichever is greater; or
Is used in transporting materials found by the Secretary
of Transportation to be hazardous as defined by DOT regulations and
transported in a quantity requiring placarding under DOT regulations
(49 U.S.C. 31132).
DOT regulations do not apply to transport vehicles that do not meet
the definition of CMV, do not operate in interstate transportation, or
are not used on public roads. OSHA continues to have authority over:
Transport vehicles that do not meet the definition of CMV;
and
CMVs not operated in interstate commerce, which includes
CMVs that transport materials on private roads or within a work
establishment.
OSHA has the authority to enforce chocking requirements in these
situations, which the Agency outlined in two letters of interpretation
(Letter to Mr. Turner, November 8, 2005 \30\ and letter to Mr. Cole,
March 7, 2011 \31\). Thus, to the extent that FMCSA covers the specific
vehicle, final paragraph (d) does not apply. That said, OSHA believes
final paragraph (d) is necessary because not all transport vehicles are
CMVs or used on public roads. Employers use transport vehicles to move
material and equipment within their facilities. In addition, most
transport vehicles are loaded and unloaded off public roads. Therefore,
OSHA adopted proposed paragraph (d) with editorial revisions.
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\30\ OSHA letter to Mr. Turner available at: http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_id=25161.
\31\ OSHA letter to Mr. Cole available at: http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_id=28121.
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Final paragraph (e), like existing Sec. 1910.30(a)(4) and the
proposed rule, requires that employers equip portable dockboards with
handholds or other means that permit workers to safely handle the
dockboard. Handholds and other means of gripping are necessary so
workers are able to move and place dockboards without injuring
themselves or others. If workers cannot handle or grip a dockboard
safely, they could drop it on their feet, crush their fingers while
putting the dockboard into place, or fall. Handholds also make it
possible to place dockboards into the proper position (e.g., adequate
overlap, secure position) so the dockboards will be safe for workers to
use.
Final paragraph (e) is essentially the same as existing Sec.
1910.30(a)(4) and is consistent with B56.1-2012 (Section 4.13.3),
MH14.1-1987 (Section 3.2.(b)), MH30.1-2007 (Section 5.2.1), and MH30.2-
2005 (Section 6.1.6). OSHA notes that these national consensus
standards also specify that, when handling a portable dockboard
[[Page 82566]]
mechanically, employers must provide forklift loops, lugs, or other
effective means to move or place the dockboard. There were no comments
on the provision and OSHA adopted the provision with minor editorial
revisions.
Section 1910.27--Scaffolds and Rope Descent Systems
Final Sec. 1910.27, like the proposed rule, addresses scaffolds
and rope descent systems (RDS) used in general industry. The purpose of
Sec. 1910.27 is to protect workers whose duties require them to work
at elevation, whether on scaffolds or RDS. The existing standards
(Sec. Sec. 1910.28 and 1910.29) address scaffolds, but not RDS. Prior
to the final rule, OSHA regulated the use of RDS under the general duty
clause (29 U.S.C. 654(a)(1)) and through written policy statements that
established minimum expectations for employers who use RDS.
For two reasons, OSHA divided the final rule into separate
paragraphs for scaffolds and RDS. First, the record shows that the
hazards involved in working on scaffolds are different from the hazards
associated with using an RDS (Exs. 66; 122; 221). Second, based on
comments received in the record, OSHA believes that the final rule
should not regulate RDS as a type of suspended scaffold. Uniformly,
commenters said RDS are not suspended scaffolds (Exs. 122; 163; 205).
For example, Mr. Matt Adams, with Rescue Response Gear, stated: ``Rope
descent systems are described in this document as representing a
variation of the single-point adjustable suspension scaffold. This is a
terribly antiquated view of what rope work really is, and does not
adequately acknowledge the extreme versatility and safety record of
rope access'' (Ex. 122). The Society of Professional Access Technicians
(SPRAT) had similar concerns, noting:
Permitting rope descent systems to be regulated as suspended
scaffolds is potentially hazardous in that this does not adequately
address the versatility, safety, and training required to achieve
safety while working suspended on rope. The hazards associated with
suspended scaffolds do not in any way emulate the hazards associated
with roped access work, and as a result the mitigation measures,
training, and equipment requirements also differ (Ex. 205).
For the reasons discussed above, OSHA also revised the title of
this section of the final rule to ``Scaffolds and Rope Descent
Systems'' from the proposed ``Scaffolds (including rope descent
systems).'' OSHA agrees with commenters that the proposed title may
mistakenly imply that RDS are a type of scaffold (Exs. 122; 221). The
only purpose of the proposed title was to indicate that RDS, like
scaffolds, involve working at elevated work locations.
OSHA notes that a number of stakeholders who commented on various
provisions of proposed Sec. 1910.27 submitted almost identical
comments. OSHA does not cite to all of these comments when discussing
each provision of the final rule. Instead, OSHA cites to samplings of
those comments when addressing an issue.
OSHA drew the rope descent system requirements in the final rule
from the following sources:
1991 OSHA memorandum to regional administrators allowing
the use of RDS when employers follow all of the provisions outlined
therein (Ex. OSHA-S029-2006-0062-0019);
American National Standards Institute/American Society of
Safety Engineers ANSI/ASSE Z359.4-2012 Safety Requirements for
Assisted-Rescue and Self-Rescue Systems, Subsystems and Components
(ANSI/ASSE Z359.4-2012) (Ex. 387); and
American National Standards Institute/International Window
Cleaning Association I-14.1-2001--Window Cleaning Safety (I-14.1-2001)
(Ex. 14).\32\
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\32\ After the rulemaking record was closed and certified on
June 13, 2011, ANSI administratively withdrew ANSI/IWCA I-14.1-2001,
Window Cleaning Safety, on October 23, 2011, because the standard
had not been revised or reaffirmed by the deadline required. ANSI
Essential Requirements (www.ansi.org/essentialrequirements) specify
all that ANSI national consensus standard must be revised or
reaffirmed within 10 years from their approval as an American
National Standard or the standard is automatically withdrawn
(Section 4.7 Maintenance of American National Standards).
SEIU Local 32BJ objected to OSHA's reliance on I-14.1-2001,
arguing that the ANSI/IWCA I-14 committee did not operate by
consensus and misrepresented votes (Ex. 316, 324, Ex. 329 (1/19/
2011), pgs. 5-8). The Local submitted a number of documents
purportedly substantiating this claim (see Ex. 316-320). However,
ANSI has due process requirements that standards developers must
follow. Because the I-14 committee was accredited by ANSI and the I-
14.1-2001 standard was approved by ANSI, OSHA presumes those
requirements were followed. ANSI's requirements include procedures
for dealing with the sort of objections Local 32BJ has made, and
nothing in these documents show that Local 32BJ presented its claims
to ANSI, through an appeal or otherwise. OSHA is unable to ascertain
from the Local's documents that the I-14 committee did not follow
the ANSI rules.
---------------------------------------------------------------------------
Paragraph (a)--Scaffolds
Final paragraph (a), like the proposed rule, requires that
employers ensure scaffolds used in general industry meet the
requirements in the construction scaffold standards (29 CFR 1926,
subpart L (Scaffolds)), and, as a result, the final rule deletes the
existing general industry scaffold requirements (existing Sec. Sec.
1910.28 and 1910.29). The construction scaffold standards, which OSHA
updated on August 30, 1996 (61 FR 46104; 61 FR 46107; 61 FR 46116)),
are more current than the general industry standards, which OSHA first
adopted in 1974 (39 FR 23502), and last updated in 1988 (53 FR 12121
(4/12/1988)).
The final rule, similar to the proposed and construction scaffold
rules, defines scaffold as a ``temporary elevated or suspended platform
and its supporting structure, including anchorage points, used to
support employees, equipment, materials, and other items'' (Sec.
1910.21(b)). For the purposes of final subpart D, scaffolds do not
include crane-suspended or derrick-suspended personnel platforms or
RDS. OSHA's standard on powered platforms for building maintenance
(Sec. 1910.66) addresses personnel platforms used in general industry.
Commenters supported making OSHA's general industry and
construction standards consistent. For example, Mr. Bill Kojola with
the AFL-CIO, said: ``We believe that it is important to have consistent
standards that address scaffolds so that all workers, regardless of the
industry in which they work, have equal or equivalent protection from
the hazards that are associated with scaffolds'' (Ex. 172). At the
hearing on the proposed rule, Mr. Kojola added:
OSHA is proposing that general industry comply with the
construction industry's scaffold standards in 29 CFR 1926(L). . . .
By requiring employers in general industry to comply with the
construction scaffold standards, consistency will be achieved as
well as a decrease in any confusion that . . . would likely arise if
the standards were different between these two industries (Ex. 329
(1/20/2011, p. 222)).
Mr. Mark Damon, president of Damon, Inc., observed: ``My experience is
that people in general industry are sometimes involved in the erection
of scaffolds. I believe . . . similar protection should be afforded to
workers in general industry'' (Ex. 251).
OSHA believes that the final rule will ensure consistent
application of the general industry and construction standards, and
increase understanding of, and compliance with, the final rule by
employers who perform both general industry and construction work. The
record indicates that many general industry employers who use scaffolds
also perform construction work on scaffolds; therefore, they already
are familiar with the construction scaffolds standards. OSHA believes
that having those employers comply with a single set of requirements
will facilitate
[[Page 82567]]
compliance and, thus, provide greater worker protection. In addition,
these employers will not have to change their current practices to meet
the requirements of the final rule. OSHA also believes that other
general industry employers should not have difficulty complying with
the final rule. The construction scaffold standards include all 21
types of scaffolds the existing general industry standards regulate.
Therefore, OSHA finalizes paragraph (a) as discussed.
Paragraph (b)--Rope Descent Systems
Final paragraph (b), similar to the proposed rule, establishes
requirements for rope descent systems (RDS) when employers use them.
The final rule defines an RDS as a ``suspension system that supports an
employee in a chair (seat board) and allows the employee to descend in
a controlled manner and, as needed, stop at any point during the
descent'' (Sec. 1910.21(b)). An RDS, sometimes referred to as
controlled descent equipment or apparatus, usually consists of a roof
anchorage, support rope, descent device, carabiner(s) or shackle(s),
and a chair (seat board) (Sec. 1910.21(b)). The final rule definition
also expressly states that an RDS does not include industrial rope
access systems.
The use of RDS is prevalent in the United States today. Employers
frequently use RDS in building cleaning (including window cleaning),
maintenance, and inspection operations. As far back as 1990, OSHA noted
that, according to some estimates, 60 percent of all window cleaning
operations used RDS (55 FR 92226). In 2010, Valcourt Building Services
(Valcourt) stated that about 70 percent of all window cleaning
operations in high-rise buildings in the United States used RDS (Ex.
147).
OSHA's existing general industry and construction standards do not
address the use of RDS.\33\ In the 1990 proposed rule, OSHA requested
comments on whether OSHA should allow or prohibit the use of RDS (55 FR
29224, 29226 (7/18/1990)). Although OSHA did not finalize the 1990
proposal, in 1991 the Agency issued a memorandum allowing the use of
RDS when employers follow all of the provisions outlined in that
memorandum (hereafter, ``1991 RDS memorandum'') (Ex. OSHA-S029-0662-
0019).\34\
---------------------------------------------------------------------------
\33\ The existing general industry rule only covers boatswain's
chairs (29 CFR 1910.28(j).
\34\ 1991 RDS Memorandum is available from OSHA's Web site at:
http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_id=22722.
---------------------------------------------------------------------------
The 1991 RDS memorandum specified that employers must use RDS in
accordance with the instruction, warnings, and design limitations that
the manufacturer or distributor sets. In addition, the 1991 RDS
memorandum specified that employers must implement procedures and
precautions including employee training; equipment inspection; proper
rigging; separate fall arrest systems; equipment strength requirements;
prompt employee rescue; padding of ropes; and stabilization. OSHA based
the proposed rule on the provisions in the 1991 RDS memorandum. OSHA
notes that the International Window Cleaning Association (IWCA) also
based its standard, ANSI/IWCA I-14.1-2001--Window Cleaning Safety (I-
14.1-2001), on the 1991 RDS memorandum. Commenters overwhelmingly
supported, and already comply with, the requirements in that memorandum
and I-14.1-2001 (Exs. 138; 147; 163; 184; 221; 242).
OSHA received many comments on RDS, most of which supported
allowing employers to use those systems (Exs. 138; 151; 153; 205; 219;
221; 222; 227; 241; 243). First, many commenters said RDS are safe and,
as a number of commenters claimed, safer than using suspended
scaffolding (Exs. 163; 184; 221; 227; 242; 243; 329 (1/19/2011, pgs.
326-329)). Mr. Stephan Bright, with IWCA and chair of the I-14.1
committee, said that RDS are safe, particularly when used in accordance
with the I-14.1-2001 standard, which has established ``accepted safe
practices'' for using RDS (Ex. 329 (1/19/2011, p. 466)). He also
indicated that OSHA must believe RDS are safe to use because the Agency
``has been referencing this standard since its publication and has used
this standard as a guideline to enforce rope descent system safety in
over 100 citations against window cleaning contractors in the last 10
years'' (Ex. 329 (1/19/2011, p. 466)). Mr. Bright said that the
decreases in injuries and fatalities associated with RDS use since the
IWCA issued the I-14.1-2001 standard ``clearly reveal that RDS is a
safe and viable means to use when the eight provisions of OSHA's
memorandum and the I-14 Standard are met. Enforcement of the same by
OSHA only increases the level of safety'' (Ex. 329 (1/19/2011, p.
467)).
Mr. Sam Terry, owner and president of Sparkling Clean Window
Company (Sparkling Clean), said his analysis of more than 350 incidents
(125 involving window cleaning) showed that RDS are safer than
suspended scaffolding (Exs. 163; 329 (1/19/2011, pgs. 326-329)). In
particular, he said the analysis indicated that the RDS provisions of
the proposed rule would prevent almost every RDS incident, while more
than 80 percent of the suspended scaffolding incidents resulted from
equipment failure that was ``beyond the control'' of the employer or
workers using the equipment (Exs. 163; 329 (1/19/2011, pgs. 326-329)).
Commenters also said RDS are safer than suspended scaffolds because
they said RDS do not involve the ``ergonomic consequences'' that
suspended scaffolding does (Exs. 163; 184; 221; 242). These commenters
pointed out that, in many cases, moving and assembling suspended
scaffolding components requires lifting heavy weights, such as davit
masts (weighing up to 160 pounds), davit bases (weighing up to 145
pounds), and davit booms (weighing up to 98 pounds).
Second, some commenters supported allowing RDS because RDS give
employers greater control over the safety of workers and the public
than suspended scaffolding (Exs. 163; 227; 243). With regard to worker
safety, Mr. Terry said workers using RDS are able to descend to the
ground or ``get themselves and their equipment out of harm's way'' more
quickly than workers using suspended scaffolding (Exs. 163). Commenters
said this advantage is particularly important if sudden or unexpected
dangerous weather hazards appear (Exs. 138; 163; 184; 221; 242).
Sparkling Clean said:
[A] worker can stop and be on the ground in a matter of minutes . .
. . [O]f the 65 incidents and 31 fatalities which occurred by users
of RDS in the window cleaning industry since 1995, not one occurred
as a result of . . . using the equipment during wind gusts, micro
bursts or tunneling wind currents (Ex. 163).
Moreover, Sparkling Clean maintained that the adverse weather does
not affect using RDS any more than using suspended scaffolding (Ex.
163).
With regard to protecting the safety of the public and other
workers on the ground, commenters indicated that RDS are safer because
suspended scaffolding requires assembling components, often done on
narrow ledges without fall protection, and these components could fall
and strike individuals below (Exs. 163; 184; 221; 242).
Third, commenters supported allowing employers to use RDS because
acceptance of RDS increased over the last 20 years since OSHA issued
the 1991 RDS memorandum and the IWCA adopted its I-14.1 standard, which
addresses RDS (Ex. 147). As noted earlier, Mr. Bruce Lapham, of
Valcourt, mentioned that, nationally, about 70 percent of all window
cleaning operations in high-rise buildings use
[[Page 82568]]
RDS (Ex. 147). IWCA also said that the use of RDS by their member
companies has grown since it issued the I-14.1-2001 standard (Ex. 329
(1/19/2011, p. 483)). Mr. Lapham said that, although the IWCA standard
made window cleaning safer, he had concerns that without ``clear cut
regulations'' on RDS, misuse of that equipment could occur (Ex. 147).
Finally, several commenters urged OSHA to allow employers to use
RDS because they are less expensive than suspended scaffolding (Exs.
163; 184; 221; 242). Some commenters said that using suspended
scaffolding can cost as much as 30 percent more than using RDS (Ex. 329
(1/19/2011, pgs. 209, 314)). Other commenters said using RDS was less
costly even if the building has an existing suspended scaffold system
(Exs. 163; 184; 221; 242). Mr. Terry explained:
The time involved in setting up a powered platform system and
riding the scaffold up and down at 30 feet per minute is typically
much slower than using [RDS]. The largest cost we incur in providing
our services is labor by a significant percentage. Therefore, in
many cases, it is actually less expensive to access the side of the
building using [RDS] . . . (Ex. 163).
Commenters also said OSHA should allow employers to use RDS even if
the design of the building or structure permits the use of other means
and methods to perform window cleaning or other maintenance activities
(Exs. 163; 184; 221; 242).
OSHA notes that many commenters provided support for the use of
RDS, saying that OSHA should allow employers to use RDS, but only if
employers follow all of the provisions in OSHA's 1991 RDS memorandum,
as well as those in I-14.1-2001, including the 300-foot RDS height
limit (Exs. 138; 147; 215; 245; 331).
A number of commenters, primarily workers and worker organizations,
opposed allowing employers to use RDS (Exs. 311; 313; 316; 329 (1/19/
2011, pgs. 5-8, 17-19)); 329 (1/20/2011, p. 222)). For example, the
Service Employees International Union (SEIU) Local 32BJ members opposed
allowing RDS because they said RDS were not safe (Exs. 224; 311; 313;
316; Ex. 329 (1/19/2011, pgs. 5-8)). At the hearing, Mr. John Stager,
former SEIU Local 32BJ president, said:
I wonder whether OSHA has seriously studied the hazards and
evaluated the history of this rulemaking; and if so, I do not
understand how OSHA could have decided that unrestricted use of RDS
is compatible with OSHA's mission of adopting fully protective
safety standards. I understand that OSHA's [1991 RDS memorandum] was
much less than a fully protective standard; rather, it was the way
that OSHA deals with hazards for which no standards exist. We
disagreed with the terms of the [1991 RDS memorandum] then, and
still do today . . . . But, to incorporate the terms of [the 1991
RDS memorandum], or terms like them, in a permanent standard is
completely inadequate and flawed. In fact, it flies in the face of
the Supreme Court's decision that OSHA must place pre-eminent value
on assuring employees a safe and healthful working environment
limited only by the feasibility of achieving such an environment
(Ex. 329 (1/19/2011, pgs. 5-6)).
Mr. McEneaney, another SEIU Local 32BJ member, added:
My comparisons and recommendations will ultimately show that
even if these proposed safety standards are adopted, controlled
descent devices cannot adequately ensure worker safety to the same
extent as scaffolding. A major difference between scaffolding and
rope descent systems is the type of rope used. The wire rope
utilized in scaffolds is never subject to failure due to abrasions;
unlike RDS ropes that are constantly at risk of abrasion once it
goes past the entry point. There was also no reliable mechanism for
protecting RDS rope from abrasion points between the point of entry
and the ground; for example, cornices and signs, et cetera (Ex. 329
(1/19/2011, pgs. 17-19)).
Mr. Jesus Rosario, a SEIU Local 32BJ member, and window cleaner since
1989, called RDS ``a very dangerous system'' (Ex. 311). He explained
his personal experience with RDS as a way to substantiate his
contention:
The protection gap [for RDS] increases with the length of the
rope. The more rope, the more movement. The wind can push you around
much more [when using an RDS rather than suspended scaffolding].
When I was about 10 stories, I have swayed as much as 3 windows
apart from sudden wind. And I have been pushed by the wind when I
was as little as 5 or 6 stories down.
Once, I was working by myself, and the rope below me got caught
in a fan. I had to climb down the lifeline rope to get out of the
[RDS]--about three stories. . . . Entry over the side [of the roof]
is very dangerous. Sometimes, I have even had to jump with my chair
to the edge of the building, and then over the side, which could
crack the chair (Ex. 311).
Mr. Rosario summed up:
Please do not allow the contractors and the building owners to
use RDS. Sure, sometimes there will be places where you just cannot
hang a scaffold. But if there is any way to safely hang a scaffold,
it is so much safer that there is no good reason to allow [RDS]. I
know it's cheaper for the building owner. But so what--isn't my life
worth something too (Ex. 311)?
Mr. Hector Figueroa, SEIU Local 32BJ secretary-treasurer, mentioned
the New York regulation prohibiting RDS use on buildings above 75 feet
as the best proof that RDS are dangerous, and that OSHA should not
allow their use (Ex. 224). SEIU also urged that federal OSHA allow the
New York regulation to continue without federal preemption, because
they believed it is far more protective than the proposed standard.
(See the discussion of the preemption issue in the Federalism section.)
OSHA disagrees with Local 32BJ, and has decided against banning all
RDS use. The record shows that RDS is a useful method of accessing the
sides of building and necessary, at least in certain circumstances.
Further, the record shows that RDS use can be conducted safely if
proper precautions are followed.
For more than 20 years OSHA has permitted employers to use RDS,
provided that employers follow all of the requirements in the 1991 RDS
memorandum. Stefan Bright, with IWCA, provided evidence supporting the
inference that the 1991 RDS memorandum protects workers:
A survey of IWCA membership was conducted in 1996 and it
revealed the following facts: . . . that approximately 800 systems
were being used on a day to day basis with an average of 8,000
descents a day and over the course of that nine-month season, which
fluctuates because [in] the warmer states, it's 12 months, the
states like here in the North are about nine, 800 workers performed
1,584,000 descents in 1996. In 1996, there was one fatality by a
window cleaner using a rope descent system.
In 1991, OSHA published the infamous eight-step RDS memorandum.
In the six years prior to this publication, 1985 to 1991, there were
19 fatalities by window cleaners using RDS to perform an estimated
nine million descents using the previous information. In the six
years after the memorandum was published, 1991 to 1996, only 11
fatalities occurred when window cleaners were using RDS to perform
the same number of descents. So that was a significant drop, almost
50 percent reduction (Ex. 329 (1/19/2011, pgs. 463-465)).
Further, as discussed in the FEA, OSHA conducted an analysis of 36
incidents in which one or more deaths were caused by a fall from an RDS
between 1995 and 2001. It found that all of the 21 of these incidents
caused by the mishandling or malfunction of RDS system or lifelines
would be prevented by compliance with one or more provisions of the
final rule. OSHA is not aware of any fatalities involving RDS that have
occurred when all of the requirements of the final rule were followed.
The final rule incorporates all of the requirements in the 1991 RDS
memorandum. In addition, the final rule adopts additional requirements,
including anchorage requirements, a 300-foot RDS height limit,
prohibition
[[Page 82569]]
on RDS use in hazardous weather, securing equipment, and protecting
ropes from hazardous exposures. OSHA believes these requirements
enhance the protection of workers provided by the 1991 RDS memorandum.
Moreover, OSHA believes that the additional protections address a
number of the safety concerns SEIU Local 32BJ raised. Accordingly, the
final rule continues to allow the use of RDS for suspended work that is
not greater than 300 feet above grade.
In the final rule, OSHA added language to the definition of RDS
expressly specifying that RDS do not include industrial rope access
systems (IRAS) (Sec. 1910.21(b)). As such, final Sec. 1910.27 does
not cover or apply to IRAS. However, other sections of the final rule,
including Sec. 1910.28, do cover IRAS.
OSHA agrees with commenters who said IRAS and RDS are different
(Exs. 69; 129; 205). For example, Ms. Loui McCurley, of SPRAT, said:
I would like to point out that rope access is not the same thing
as controlled descent, rope descent systems, any other big bucket
that you might want to put it in. Rope access systems and rope
access technicians vary greatly from just a controlled descent or a
rope descent system (Ex. 329 (1/19/2011, pgs. 135-138)).
Commenters also pointed out other differences between the two
systems. Global Ascent said that IRAS use a two-rope system (Ex. 129).
They stated the two-rope system consists of a working line and a safety
line, whereas RDS use only a working line (Ex. 129). Accordingly,
Global Ascent noted that IRAS have built-in fall arrest by virtue of
the dual-ropes (Ex. 129). Several commenters also said that the
training requirements necessary for IRAS use and RDS use are much
different (Exs. 78; 129; 205). They also said IRAS users need more
training than RDS users. Based on these comments, OSHA concluded that
IRAS differ significantly from RDS and did not include them in the RDS
requirements in final Sec. 1910.27(b).
Final paragraph (b)(1) adds new requirements for anchorages to
secure RDS. The final rule defines anchorage as a secure point of
attachment for equipment such as lifelines, lanyards, deceleration
devices, and rope descent systems (final Sec. 1910.21(b)). The
proposal would have required that employers use ``sound anchorages,''
and OSHA noted that they are ``essential to the safety of RDS''
(proposed Sec. 1910.27(b)(2)(iv); 75 FR 28886). OSHA also noted that
the 1991 RDS memorandum required that employers rig RDS properly,
including having ``sound anchorages'' (75 FR 28869). Although the
proposed rule did not include specific requirements on anchorages for
RDS, proposed Sec. 1910.140(c)(12) contained a requirement for a
separate anchorage for personal fall arrest systems. The Agency
requested comment on whether its proposed approach was sufficient to
ensure the safety of anchorages.
OSHA also noted in the proposed rule that the Agency raised the
issue of anchorages, and also requested comments in the 1990 proposal
(55 FR 29224 (7/18/1990)). At that time, IWCA and window cleaning
companies told OSHA that there often were no anchorages on building
rooftops (75 FR 28869; OSHA-S041-2006-0666-0543; OSHA-S041-2006-0666-
1252; OSHA-S041-2006-0666-1253). Since the companies did not own or
have control over the building, they had no control over whether or
where building owners would place anchorages. Therefore, they urged
OSHA to require building owners to install anchorages and test,
inspect, maintain, and certify that the anchorages are capable of
holding the RDS, worker, and all equipment. As noted, OSHA did not
finalize the 1990 proposed rule.
Today, OSHA continues to believe anchorage requirements are
necessary because, as the Final Economic Analysis indicates, anchorage
failure is one of the primary causes of window cleaning accidents
involving RDS. Data that Mr. Terry, president of Sparkling Clean,
compiled and analyzed also showed that lack of sound anchorages
accounted for 65 (more than 50 percent) of the 125 window cleaning
incidents involving RDS (Ex. 163). Mr. Stefan Bright, with the IWCA,
said their analysis of window cleaning fatalities revealed that 95
percent were due to lack of sound anchorages (Ex. 329 (1/19/2011, p.
465)). In addition, commenters uniformly supported adding specific
requirements on anchorages to the final rule (Exs. 163; 184; 221; 242).
Final paragraph (b)(1)(i) requires that, before the employer uses
any rope descent system, the building owner informs the employer in
writing that the building owner has identified, tested, certified, and
maintained each anchorage so it is capable of supporting at least 5,000
pounds in any direction, for each worker attached. The final rule also
requires that the building owner base the information provided to the
employer on:
An annual inspection; and
A certification of each anchorage, as necessary, and at
least every 10 years.
The building owner must ensure that a ``qualified'' person conducts
both the inspection and certification. The final rule defines qualified
as a person who, by possession of a recognized degree, certificate, or
professional standing, or who by extensive knowledge, training, and
experience has successfully demonstrated the ability to solve or
resolve problems relating to the subject matter, the work, or the
project (Sec. 1910.21(b)).
For the purposes of final paragraph (b)(1)(i), the term ``as
necessary'' means when the building owner knows or has reason to
believe that recertification of the anchorage is needed. The final rule
gives building owners flexibility in determining when anchorage
recertification is necessary. Factors or conditions indicating that
recertification may be necessary include, but are not limited to, an
accident involving a worker using an RDS, a report of damage to the
anchorage, major alteration to the building, exposure of the anchorage
to destructive industrial substances, and location of the building in
an area of high rainfall or exposure to sea air and humidity that might
accelerate corrosion.
OSHA requested comment on adding more provisions ensuring the
safety of anchorages in the final rule. In particular, the Agency asked
whether it should adopt the information disclosure requirements of
Sec. 1910.66.
Paragraph (c)(1) of Sec. 1910.66 requires that building
owners of new installations inform employers in writing that
installations meet the requirements of paragraphs (e)(1) and (f)(1) of
that section and additional design criteria contained in the other
provisions of paragraphs (e) and (f).
Paragraph (c)(2) of Sec. 1910.66 requires that building
owners base the information required in paragraph (c)(1) on the results
of a field test of the installation before being placed into service
and following any major alteration to an existing installation, and on
all other relevant available information, including, but not limited
to, test data, equipment specification, and verification by a
registered professional engineer.
Paragraph (c)(3) of Sec. 1910.66 requires that building
owners of all installations, new and existing, inform employers in
writing that the installation has been inspected, tested, and
maintained in compliance with the requirements of paragraphs (g)
(inspection, tests, and certification) and (h) (maintenance) of the
section and that all protection anchorages meet the requirements of
paragraph (I)(c)(10) of appendix C (fall protection anchorages must be
capable of supporting 5,000 pounds).
[[Page 82570]]
Paragraph (e) of that rule specifies that structural supports, tie-
downs, tie-in guides and affected parts of the building included in the
installation shall be designed by or under the direction of a
registered professional engineer experienced in such design (Sec.
1910.66(e)(1)(i)).
In addition, the I-14.1-2001 standard requires that building owners
provide window cleaning contractors with the following written
information:
The installation or structure has been inspected, tested
and maintained in compliance with the requirements of I-14.1-2001;
All equipment dedicated to the building meets the
requirements in Part B (i.e., equipment and building design
requirements, such as the requirement that anchorages support a 5,000
pound load in any direction (9.1.11) and that certifications and re-
certifications of anchorages be conducted under the supervision of a
registered professional engineer (Section 9.1.10);
Specified load ratings, intended use and limitations to
fixtures permanently dedicated to buildings; and
Manufacturer's instructions for installations, anchorages
and fixtures permanently dedicated to the building (Section 1.6.2 (a)-
(d)).
Overwhelmingly, commenters supported requiring that building owners
identify, test, and maintain anchorages, and certify that those
anchorages are capable of supporting 5,000 pounds in each direction for
each attached worker.
Many commenters said the anchorage provision is necessary because
the lack of ``sound anchorages'' was the leading cause of fatalities
and incidents involving RDS (Exs. 138; 163; 184; 221; 222; 243).
Valcourt said:
[W]orkers that use Rope Descent Systems deserve a safe place to
work. . . . There is no greater contributing factor to having a safe
workplace in which to use an [RDS] than having identified and
certified anchorage points in which to tie to. In its 26-year
existence, Valcourt has seen both building owners and window
cleaners come to a greater understanding of this fact, leading to
much safer working conditions (Ex. 147).
Another commenter, 20/20 Window Cleaning of NC, said the new
anchorage requirement would prevent accidents and save lives (Ex. 153).
IWCA noted that, without the new provision, workers using RDS would not
have an equivalent level of protection than do workers who use
permanent powered platforms (Ex. 138).
Commenters also said the anchorage requirement is necessary because
many building owners do not provide certified anchorages, even though
IWCA issued the I-14.1-2001 standard more than 10 years ago (Exs. 147;
163; 245; 329 (1/19/2011, pgs. 218-219)). Valcourt said about 75
percent of the buildings they service do not have certified anchorages,
while LWC Services said less than 5 percent of the buildings they
service have them (Exs. 147; 245). LWC Services also estimated that
seven percent of mid- and high-rise buildings have certified anchorages
(Ex. 245). Finally, LWC Services said their most significant problem is
finding anchorage points to allow suspension of equipment, and they
questioned how they could install anchorages when they only work at a
particular location for a couple of days per year, inferring
infeasibility (Ex. 245).
Most commenters said they think permanent anchorages are the
responsibility of building owners, and they urged OSHA to require that
building owners provide anchorages, and to inspect, test, certify, and
maintain them (Exs. 138; 147; 163; 184; 193; 221; 242; 329 (1/19/2011;
pgs. 378-388)). Valcourt said OSHA needed to mandate that building
owners provide anchorages because building owners will not provide and
certify anchorages if it is voluntary:
If OSHA . . . [omits] the requirement of building owners to have
their roof anchorage systems initially certified . . . and inspected
by a qualified person annually, many building owners will simply
state that it is not a requirement of OSHA and not [do it]. This
would make the marketplace more dangerous and be a regression of 20
years in window cleaning safety for both the window cleaning and
building owner industries (Ex. 147; 329 (1/19/2011, pgs. 378-388)).
Commenters uniformly agreed that OSHA should require that anchorages be
capable of supporting 5,000 pounds in all directions for each worker
attached, which is consistent with I-14.1-2001 (Section 9.1.1) (Exs.
163; 184; 221; 242; 243). Clean & Polish suggested that OSHA require
that anchorages sustain a 5,000 pound load or at least have a 4-to-1
safety factor when using an RDS (Ex. 242). They also supported applying
this requirement to tie-backs (Ex. 242).
Commenters were about evenly divided on whether OSHA should codify
the language in Sec. 1910.66(c) or the I-14.1-2001 standard. Regarding
his support for following the approach in Sec. 1910.66, Mr. Terry, of
Sparkling Clean, said:
I agree that building owners should provide employers with the
same information required by 1910.66; a certificate of inspection,
testing, and maintenance of anchorages for rope access and suspended
scaffolding used in building maintenance, and that an existing
certificate for powered platform anchorages would suffice for the
same anchorages to be used for rope access. This would allow for
rope access to be utilized on buildings with systems or anchorages
originally designed for suspended scaffold use without any new
requirements or expenses on the building owner (Ex. 329 (1/19/2011,
pgs. 224-226)).
Commenters provided recommendations for specific language and items
the final requirement on anchorages should contain. For example, Penta
Engineering said OSHA should require load testing of all anchorages and
davits (Ex. 193). Martin's Window Cleaning (Martin's) said OSHA should
require that employers ask for and obtain verification of anchorage
certification (Ex. 65).
Several commenters recommended specific timelines for anchorage
inspection and certification. Martin's recommended inspections every
year, and certifications every 10 years (Ex. 65). Penta Engineering
Group agreed, and recommended that OSHA also require anchorage
recertification after building owners install new roof systems (Ex.
193).
One commenter urged OSHA to require that building owners ensure
qualified persons conduct the annual inspections and certifications
(Ex. 204). Other commenters said that professional engineers should
perform those tasks (Exs. 65; 193; 329 (1/19/2011, pgs. 378-388)). LJB
Inc., noted that it may be a violation of local and state building
codes to have anyone other than a professional engineer certify
anchorages (Ex. 204). OSHA notes that, under the final provision and
the final definition of qualified, building owners are free to use
professional engineers to inspect and certify anchorages.
OSHA did not receive any comments opposing an anchorage
requirement. OSHA notes that the Building Owners and Managers
Association (BOMA) did not submit any comments on the proposed rule or
testify at the rulemaking hearing, but they did oppose the requirement
in the 1990 proposed rule that building owners provide anchorages. OSHA
also notes BOMA was a member of the I-14.1-2001 committee that approved
the national consensus standard, which includes anchorage requirements
building owners must meet. OSHA agrees with many of the comments and
recommendations submitted to the record, and incorporated many of them
into the final rule. For example, given that outside contractors
generally perform building maintenance (such as window cleaning), and
that these
[[Page 82571]]
outside contractors usually have no control over the building
anchorages and are at particular buildings for only a few days, OSHA
determined that inspecting, testing, certifying, and maintaining
anchorages and providing information about the anchorages must be the
responsibility of building owners. Only when building owners take
responsibility for anchorages and provide written information to
employers and contractors, can there be adequate assurance that workers
will be safe when they use RDS.
Final paragraph (b)(1)(ii) establishes a new provision that
requires employers to ensure that no employee uses any anchorage before
the employer obtains written information from the building owner that
the anchorage meets the requirements of final paragraph (b)(1)(i). In
other words, the final rule requires that employers ensure no employee
uses an RDS until the employer obtains written information that the
building owner identified, tested, certified, and maintained each
anchorage so it is capable of supporting at least 5,000 pounds in any
direction for each worker attached. The final rule also requires that
the employer keep the written information from the building owner for
the duration of the job.
OSHA's powered platforms standard contains a requirement similar to
the final rule (Sec. 1910.66(c)(4)). Also, the I-14.1-2001 standard
requires that employers (i.e., window cleaning contractors) and
building owners not allow suspended work to occur unless the building
owner provides, identifies, and certifies anchorages (Section 3.9).
OSHA believes the final rule will ensure that each anchorage to
which workers attach an RDS meets the inspection, testing,
certification, and maintenance requirements of the final rule before
workers attach to it. Under the final rule, employers are not to allow
workers to attach to an anchorage and begin work if the employer did
not receive written certification that the anchorage is capable of
supporting 5,000 pounds. Specifically, final paragraph (b)(1)(ii)
prohibits employers, when there are no certified anchorages, from
``making do'' or attaching RDS to alternative structures, making the
assumption that these structures are capable of supporting 5,000
pounds.
OSHA acknowledges that employers currently attach RDS to other
structures if there are no certified anchorages available. For example,
Mr. Charles Adkins, of Corporate Cleaning Services (Corporate
Cleaning), explained what his company does at the 30 to 40 percent of
the buildings they service that don't have certified anchorages:
They go up and they select it with the assistance of the foreman
who is--we have--we've heard some mention of supervision here and we
totally agree that that's a very important fact and that's why we
have four salaried foremen, plus an operations manager, who focus
exclusively on supervision.
They go up and select them. There are a number of alternatives.
They can attach them to the permanent part of the building. They can
use parapet clamps if they have a way to properly attach the tieback
and the safety line to it and just about every building is
different. Sometimes we can use weights to keep them from--to help
hold the ropes (Ex. 329 (1/19/2011, pgs. 218-219)).
Finally, OSHA believes that the written information on anchorages
that building owners must provide to employers will be helpful for
employers throughout the job. Employers can use the information to keep
workers continuously informed about which anchorages have proper
certification. The information also will be helpful if there are work
shift-related changes in personnel, if the employer brings new workers
to the job, or if there is a change in site supervisors. Therefore, the
final rule is requiring employers to retain the written information on
anchorages they obtained from building owners for the duration of the
job at that building.
In final paragraph (b)(1)(iii), OSHA provides employers and
building owners with additional time to implement the requirements in
final paragraphs (b)(1)(i) and (ii). The final rule gives employers and
building owners one year from November 18, 2016 to meet the new
requirements in final paragraphs (b)(1)(i) and (ii). This means that
building owners must identify, inspect, test, certify, and maintain
each anchorage by the compliance date.
OSHA believes the additional compliance time is necessary because a
number of commenters said most buildings where they use RDS do not have
certified anchorages (Exs. 147). For example, Mr. Lapham, of Valcourt,
said that their company services 3,850 buildings in 14 states (Ex.
147). Of the buildings Valcourt cleans, Mr. Lapham said almost 75
percent did not have certified anchorages, more than 20 years after
OSHA issued the final Powered Platforms standard (Sec. 1910.66) (Ex.
147).
Mr. Charles Adkins, of Corporate Cleaning Services, the largest
window cleaning company in the Chicago area, said that they perform
window cleaning services on more than 1,200 buildings (Ex. 329 (1/19/
2011, p. 201)). He estimates that about 60 to 70 percent of those
buildings already have certified anchorages (Ex. 329 (1/19/2011, pgs.
218-219)).
In the 1990 rulemaking, BOMA objected to requiring building owners
to provide anchorages, but agreed that new buildings completed two to
five years after the effective date of the final rule should have
anchorages (75 FR 28862, 28879; Ex. OSHA-S041-2006-0666-1212).
It is now 24 years since OSHA first proposed a rule addressing RDS,
and 23 years since OSHA's 1991 RDS memorandum allowed the use of RDS
provided they have ``sound anchorages.'' OSHA does not believe building
owners, at this late date, need another two to five years to identify,
inspect, test, certify, and maintain anchorages in new or existing
buildings. OSHA believes that giving building owners an additional year
to meet the requirements of final paragraph (b)(1)(i) is adequate.
Final paragraph (b)(2) establishes RDS design and work-practice
requirements that employers must follow to ensure their workers' safety
when using an RDS. OSHA drew most of the requirements from the 1991 RDS
memorandum and the I-14.1-2001 national consensus standard. Many
commenters who supported allowing the use of RDS also supported
requiring employers to comply with all of the provisions in the 1991
RDS memorandum and I-14.1-2001 (Exs. 138; 151; 219).
Final paragraph (b)(2)(i), like proposed paragraph (b)(1) and the
I-14.1 standard (Section 5.7.12), requires that employers ensure no RDS
is used at heights greater than 300 feet (91 m) above grade. The final
rule includes two exceptions to the 300-foot height limit, discussed
extensively below.
Many stakeholders supported the proposed 300-foot height limit
(Exs. 138; 147; 168; 206; 215; 300; 329 (1/19/2011, pgs. 253-254, 401);
329 (1/21/2011, pgs. 98, 474, 477); 331). They said using an RDS at
heights above 300 feet was dangerous for workers, and establishing a
height limit was an important ``safety issue'' (Exs. 147; 215). Mr.
John Capon, of Valcourt, said, ``I think anything above 300 feet is
preposterous, to be honest with you. The risks associated with it, just
the height, all the conditions, are just overly-dramatic at that
height'' (Ex. 329 (1/19/2011, p. 401)). Mr. LaRue Coleman, of JOBS
Building Services (JOBS), also said worker safety mandated that
employers not use RDS over 300 feet, noting: ``Contractors will always
use the excuse that an area cannot be accessed in any other manner
[than RDS] to save the building money. This is a safety issue and
should not be left up to an individual employer or
[[Page 82572]]
employee to make an onsite decision of this nature'' (Ex. 215). Mr.
Coleman also suggested that OSHA adopt a height limit of 130 feet,
which California OSHA \35\ uses (Ex. 215). Not only would a 130-foot
height limit significantly reduce the dangers to workers who use RDS,
but Mr. Coleman said it also would eliminate stabilization issues and
requirements (Ex. 215). OSHA notes that the State of California also
requires all buildings over 130 feet to be equipped with a powered
platform.
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\35\ California Code of Regulations, Title 8 Chapter 4,
Subchapter 7 Article 5, Sec. 3286.
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Mr. Lapham, of Valcourt, said their experience indicated that the
following factors necessitated limiting RDS use to a maximum of 300
feet:
The significant increased effect of wind at heights above
300 feet;
The significant increased length and weight of ropes
required for using RDS above 300 feet; and
The increased potential that moving the weightier ropes
will ``literally pull a window cleaner over the edge of the building''
roof (Ex. 147).
Other commenters agreed with Valcourt's analysis. Ms. Kelley
Streeter, of Vertical Access, said ropes longer than 300 feet are heavy
and moving or working with such lengths can be hazardous and strenuous
for workers (Ex. 329 (1/21/2011, p. 98)). Mr. Brian Gartner, of
Weatherguard Service, Inc. (Weatherguard), agreed, and identified
additional factors that contributed to the danger of using RDS above
300 feet:
In my opinion, based on testing and evaluation and basic
engineering concepts, 300 feet is at the high end of the safe use
range. Suspensions over 225 feet start responding to the effects of
wind on the ropes and the worker. The longer the rope, the more
surface area is exposed to the wind. The wind effect is variable.
The lower the worker is from the roof, there is more rope above him
or her that can be subjected to the wind, thus the higher the
suspension, the more the worker is free to move.
The longer the suspension the greater the ``spring'' in the
suspension and safety ropes. This springiness is in all synthetic
ropes that are in the diameter ranges that are used for this purpose
whether they are static type ropes or other rope types. There are
many other factors that contribute to the dangers of rope descents
above 300 feet. For every foot of increased suspension, the dynamics
and conditions change and become more problematic (Exs. 329 (1/19/
2011, pgs. 253-254); 331).
Mr. Gartner added that there is a marked difference in handling RDS
ropes (support and fall arrest) on buildings less than 300 feet
compared to buildings above 300 feet: ``[T]he differences of how the
winds affect [the ropes] and you, on the roof, and the trouble
discerning what is happening with the ropes will speak volumes
regarding the safety issues of building height and rope descent'' (Ex.
331; see also Ex. 300). For example, he said moving heavier ropes has
the potential of pulling workers over the edge of the building (Ex.
147). In conclusion, he stated: ``Those that minimize, overlook, or
disregard all of these factors, as they are all safety concerns, are
not responsibly or realistically addressing the height issue and
manifesting a disregard to worker and the public's safety'' (Exs. 329
(1/19/2011, pgs. 253-254); 331).
Some commenters said the 300-foot height limit would not be a
burden on most employers. Mr. Gartner said, ``The [number] of buildings
in the United States taller than 300-feet is miniscule when compared to
the [number] of buildings under 300 feet in height'' (Ex. 331). Mr.
Coleman said that the 300-foot limit would affect only six percent of
office buildings in the 19 largest national markets:
If you were to take the study out to additional markets the
effect would be even less since smaller/shorter buildings are
typically built in these markets. If you were to add schools,
hospitals and hotels to a study the effect would be even less since
again these types of structures are typically shorter except when
located in a major metropolitan area. Of the 6% of buildings over 11
floors the vast majority of them will have either permanent rigging
or building owned davits and tie-backs thereby reducing the cost
effect of lowering the height (Ex. 215).
Finally, commenters said OSHA should adopt the 300-foot height
limit because the I-14.1-2001 national consensus standard requires it.
Mr. Lapham, of Valcourt, who was one of the members of I-14.1-2001
committee, said it took ``multiple decades'' for the industry to agree
to the 300-foot limit in the I-14.1-2001 standard, so OSHA should not
eliminate it ``under any circumstance'' (Ex. 147). Mr. Gartner, of
Weatherguard, and also a member of the I-14.1-2001 committee, said that
Ontario, Canada, also adopted the I-14.1-2001 standard's 300-foot limit
for RDS:
Canada spent much time and money in the establishment of their
Code with respect to the height limit of 300 feet.\36\ They did
studies, hired consultants and deliberated at length. Their Code was
promulgated due to the high death toll of their window cleaners;
they had one fatality a month before the code was enacted (Ex. 331).
---------------------------------------------------------------------------
\36\ The Ontario window cleaning regulation specifies that
employers must not use controlled descent devices above 90 meters,
which equals 295.276 feet (R.R.O. 1990, Regulation 859 Sec. 28(c)).
Many commenters opposed the proposed 300-foot RDS height limit for
various reasons (Exs. 126; 151; 163; 178; 184; 205; 218; 219; 221; 222;
242). Most of those commenters said there was no safety-related reason
to impose the height restriction, claiming that using RDS at heights
above 300 feet is safe (Exs. 151; 163; 184; 218; 242). Mr. Terry, of
Sparkling Clean, said using RDS ``at all heights is routinely performed
safely [and] successfully . . . in many parts of the country'' (Ex.
163). He considered using RDS at any height to be so safe that ``I
believe the proposed 1910.27(b) should actually read [that using RDS]
is encouraged at any height'' (Exs. 163; 329 (1/19/2011, p. 330)). He
added that OSHA's final rule also should allow employers to use RDS as
a substitute to the means and methods originally designed into the
building or structure when the design of the building or structure will
safely support the use of the RDS (Ex. 163).
A number of commenters said their injury data also demonstrated
that RDS are safe to use at any height. These commenters said that they
had no recordable incidents related to using RDS on taller buildings
(Exs. 163; 184; 242). Mr. Terry said his analysis of nine RDS incidents
that involved RDS use over 300-feet indicated that none of the cases
involved the height of the work as the cause of the incident (Ex. 163).
Many commenters said they considered RDS to be safer than powered
platforms at any height, including above 300 feet, and, thus, there was
no reason for OSHA to impose the 300-foot height limit on their use.
For example, Corporate Cleaning said RDS are safer than powered
platforms at all heights below 700 feet because they are more
maneuverable, and allow workers to descend more quickly in an emergency
(Ex. 126).
Other commenters disputed the argument that the effects of wind on
RDS used above 300 feet are greater than for suspended scaffolding/
powered platforms. Some commenters said there was no difference in the
effects of wind on RDS use than on powered platforms at any height
(Exs. 163; 205). For instance, Ms. McCurley, of SPRAT, said:
We . . . find that the height restrictions and the wind exposure
to be. . . unfounded. In practical living and in practical working,
we find that all of these things are a matter of skills, knowledge
and good decision-making. If the wind is too high that day, if there
is ice out there that day, you just don't go. And that's true of
whether you are using a scaffold or a powered platform or a ground-
based system or whatever. You just have to
[[Page 82573]]
make the right decision based on the gear that you are using (Ex.
329 (1/19/2011, p. 154)).
Some commenters who opposed the proposed 300-foot RDS height limit
claimed it was ``arbitrary.'' For instance, Mr. Ken Diebolt, of
Vertical Access, said:
My primary objection is to the 300-foot limit . . . [is] it
seems to us completely arbitrary. I mean, once you're X number of
feet off the ground, once you're 10 feet off the ground, 50 feet,
100 feet, it doesn't really--you're no safer at 300--at 100 feet
than you are at 300 feet or 500 feet if you're doing the work well.
And I wonder where this came from. It comes from the window washing
industry but I have no history of that and I don't know (Ex. 329 (1/
21/2011, p. 138)).
Mr. Adkins, of Corporate Cleaning, agreed:
We urge you not to adopt that limitation, especially as it is
written in your proposals. . . . It appears to be an arbitrary limit
and does not, is not based on any kind of empirical research to
determine that there is a problem in fact with the use of ropes in
excess of 300 feet. In fact, I haven't been able to find any
evidence of any accidents or any serious incidents where the length
of the rope had anything to do with it (Ex. 329 (1/19/2011, p.
204)).
In addition, several commenters disputed there was consensus
supporting the RDS height limit. For example, Mr. Adkins said:
[T]here is an implication there's a consensus in this industry
supporting the 300-foot rule. I think a lot of testimony we've had
here today makes it clear that that is not the case. Not only do I
not believe it, not only will you hear from other individuals in the
window washing industry who do not support that, you also heard from
people on the other side, Mr. Stager from the Union who doesn't
believe there's been an effective consensus developed on it (Ex. 329
(1/19/2011, pgs. 203-212)).
However, Mr. Bright, chair of the I-14.1-2001 committee, said there
was ``broad agreement'' among the committee to include a 300-foot RDS
height limit, which is ANSI's definition of ``consensus'' (Ex. 329 (1/
19/2011), pgs. 244-46).
Commenters opposing the RDS height restriction also said the IWAC
based the I-14.1-2001 requirement more on emotions and economics than
on safety (Ex. 163; 184; 221; 222; 241). The comment of Mr. Sam Terry,
of Sparkling Clean, was representative of those stakeholders:
It is my contention that the 300' limitation is based more on
the following two issues:
The emotions of the untrained observer who thinks [RDS]
looks scary
The financial benefit to the manufacturer, designer,
installer or equipment associated with suspended scaffolding and the
large window cleaning companies who can limit their competition by
restricting the use of the less expensive option of [RDS] (Ex. 163).
Mr. Adkins agreed:
Now like I said, those people worked very hard on it, I don't
dispute that, but the I-14 Committee or 50 percent of them were not
window washers. They are from other industries and they are very
honest, hard-working people of integrity but they have legitimate
business interests to look at enforcing a 300-foot limitation or
eliminating it all together and that has to be considered, I am sure
(Ex. 329 (1/19/2011, pgs. 203-212)).
Mr. Adkins also said that restricting RDS use would lead to
economic hardship for some window cleaning companies and to higher
unemployment (Ex. 329 (1/19/2011, p. 220), but he did not have
knowledge of any companies that experienced economic hardship by
following the I-14.1-2001 height restriction on RDS use. However,
Diamond Window Cleaning said the RDS height limit would give unfair
competitive advantage to larger companies that have, and only use,
powered platforms or systems installed on buildings (Ex. 219). Some
commenters said using RDS is less costly than using powered platforms,
and requiring companies to use powered platforms would be costly (Ex.
219). Mr. Terry explained:
Of the buildings in my marketplace, the buildings taller than
300 feet typically do not have permanently-installed powered
platforms for access to the exterior of the building. Most of those
buildings were designed and built in the last five years and do not
have permanently installed powered platforms for access to the
exterior of the building (Ex. 163).
After reviewing the rulemaking record, OSHA has decided to retain
the proposed requirement that employers not use RDS at heights above
300 feet above grade. OSHA continues to believe that using RDS above
300 feet is hazardous, and that adopting the height limit in the final
rule will help protect workers from injury and death.
OSHA agrees with commenters who said that there are many factors
that contribute to the dangers of operating RDS above 300 feet. First,
as the proposed preamble and commenters discussed, OSHA believes that
using RDS at greater heights increases the potential effects of wind
(e.g., wind gusts, microbursts, tunneling wind currents) on workers.
OSHA believes that, when working at heights over 300 feet, the effects
of wind on the RDS and the worker are greater in general, and greater
than the effects imposed on heavier powered platforms. OSHA notes that
commenters identified incidents in which workers used RDS in windy
weather, and the wind blew the workers around the side of a building
and 30 feet away from a building (Exs. 163; 168). Moreover, while OSHA
agrees that workers can descend more quickly on RDS if severe weather
suddenly occurs, excessively windy weather can buffet workers
descending from above 300 feet, causing them to swing great distances
during the long descent. Most likely in these situations, workers using
RDS will have only intermittent stabilization (i.e., suction cups) so
they can swing by the ropes and hit the building or other structures
and get seriously injured before they reach the ground.
Second, using RDS above 300 feet requires the use of longer ropes.
OSHA said in the proposed rule, and IWCA (Ex. 138) agreed, that the
greater the length of rope used for descent, the greater the effect of
winds (e.g., wind gusts, microbursts, tunneling wind currents) (see
also Ex. 300). Longer ropes have a greater possibility of getting
tangled or caught on objects, especially in windy (or gusty) weather,
leaving the worker unable to descend or self-rescue. The compilation of
RDS incidents Mr. Terry submitted included cases in which the ropes got
entangled in equipment lines, an antenna, and other workers' RDS lines,
leaving the worker stuck and unable to descend (Ex. 163). These cases
arise because, as Mr. Bright testified, employers often have a number
of workers (e.g., 5 to 6) descending on the same side of a building at
the same time (Ex. 329 (1/19/2011, pgs. 477, 489-490)).
Third, OSHA agrees with Mr. Lapham, of Valcourt, and Ms. Streeter,
of Vertical Access, who said that longer ropes needed for RDS use above
300 feet are heavier, and moving them can be hazardous (Ex. 147; 329
(1/21/2011, p. 98)). Taken together, OSHA finds convincing the
arguments that workers are at an increased risk of harm when using RDS
over 300 feet, and that the RDS height limit in the final rule is
necessary to protect them.
OSHA also retained the RDS height limit in the final rule because
the I-14.1-2001 national consensus standard included the same limit.
The American National Standards Institute (ANSI) approved the I-14.1-
2001 standard, and industry widely uses it. OSHA believes the national
consensus standard reflects industry best practices. Commenters,
including some who were members of the I-14.1 committee, said there was
broad agreement to include the 300-foot RDS height limit in the I-14.1
standard (Ex. 147; 329 (1/19/2011, pgs. 210-211, 253, 267-268)).
[[Page 82574]]
Since IWCA issued the I-14.1-2001 standard, several jurisdictions
have adopted the 300-foot RDS height limit. Minnesota (5205.0730,
Subpart 6(A)) and Washington (WAC-296-878-20005) issued regulations
limiting RDS use to 300 feet, while California now limits RDS use to
130 feet (Cal. Code Regs., Tit. 8, Sec. 3286 (2012)). Additionally,
OSHA believes the experience of Canada (Ontario province) deserves
consideration (R.R.O. 1990, Regulation 859). According to Mr. Brian
Gartner, of Weatherguard Service, who was a member of the I-14.1
committee:
Canada invested much time and money in the establishment of
their code with respect to the height limit of 300 feet. They did
studies, hired consultants, and deliberated at length. Their code
was promulgated due to the high death toll of their window cleaners.
They had one fatality a month before the code was enacted (Ex. 331).
With regard to commenters' claims that economics was the basis for
supporting or opposing the RDS height limit in I-14.1-2001 (as well as
OSHA's proposed rule), OSHA notes that commenters on both sides of the
issue claimed that the other side was seeking an economic advantage.
Those commenters who supported the RDS height limit said employers were
using RDS above 300 feet to win bids for window cleaning and save money
(Ex. 215). For example, Mr. Gartner noted: ``RDS is the least expensive
method to service a building, saving the building owner money while
allowing for the largest profit margin for a window cleaning
contractor'' (Ex. 331).
Commenters who opposed the 300-foot RDS height limit said large
window cleaning companies that use powered platforms instead of RDS
were pushing for the height restriction to gain an ``unfair competitive
advantage.'' Those commenters also said that prohibiting the use of RDS
above 300 feet would result in loss of jobs, higher unemployment, and
loss of income because it costs more to use powered platforms.
During the rulemaking hearing, OSHA asked Mr. Coleman, of JOBS,
whose company only uses powered platforms, why the company did not
support prohibiting the use of RDS since such a prohibition would be in
his company's best economic interests. He replied: ``Because . . . I
understand the reality that it's here. It's going to be used and so I
understand the importance of some regulation that's definite. Nothing
that leaves a loophole, that leaves it up to the people in the field''
(Ex. 329 (1/19/2011, pgs. 315-316)). Moreover, Mr. Coleman said the
company did not lay off any employees or lose business when they
decided in 1985 to only use suspended scaffolding for suspended work
(Ex. 329 (1/19/2011, p. 313)). Mr. Coleman testified that the company
initially lost income because they did not change their prices even
though using suspended scaffolding cost as much as 30 percent more than
RDS use. He further noted that, the company eventually passed the cost
to customers, ``the building owners did not really flinch when they
understood that we were not going to use a device that there was no
OSHA regulation for. They saw their liability rise. So . . . window
cleaning on a building, if you put it on a chart, probably won't even
measure as a measurable cost for most buildings'' (Ex. 329 (1/19/2011,
p. 314)).
In conclusion, based on analysis of comments and the record as a
whole, OSHA believes there is substantial evidence to support retaining
the 300-foot height limit for RDS use.
Mr. Adkins, of Corporate Cleaning Services, recommended that OSHA,
instead of prohibiting the use of RDS for heights greater than 300
feet, limit their use based on wind speeds \37\ (Exs. 297; 360). Mr.
Adkins' model assumes that a 25 mph wind speed and 300-foot rope length
``yields a `safe' horizontal displacement,'' which he calculated to be
5 feet (Ex. 297). According to his model, as the RDS rope length
increases, the permissible wind speed decreases. Thus, for example,
under Mr. Adkins' model when the rope length is 700 feet the
permissible wind speed for RDS use would be 15 mph \38\ (Ex. 297).
---------------------------------------------------------------------------
\37\ Mr. Adkins said the term ``wind speed'' refers to wind
gusts (``[W]hen I talk about wind speed, I talk about a gust'' Ex.
329 (1/19/2010, p. 234)).
\38\ Mr. Adkins said 9 mph would be a safe wind speed when the
rope is 700 feet if the maximum speed allowed at 300 feet is 15 mph
(Ex. 297).
---------------------------------------------------------------------------
The rulemaking record, however, does not support Mr. Adkins' model
or recommendation to replace the 300-foot RDS height limit with wind
speed limits. First, according to a study, ``Wind Effects on a Window
Washer Suspended on a Rope,'' a 250-pound window cleaner hanging 75
feet down from a 300 foot building in a steady 25 mph wind would be
displaced/deflected as much as 40 feet, which is far greater than the 5
feet Mr. Adkins' model predicts (Exs. 300; 352). Moreover, changes in
wind speed (i.e., gusts, stops) when window cleaners are deflected
significantly more than 5 feet could cause them to swing back into the
building resulting in death or serious injury. In fact, the study found
that window cleaners can be knocked over by ``moderate wind speeds''
(i.e., approximately 7 mph at 300 feet) and injured hitting buildings
at a speed of 4 mph, both of which are significantly less than wind
speeds Mr. Adkins says would be safe at 300 feet.
Second, many stakeholders did not support limiting RDS based on
wind gusts instead of height (e.g., Exs. 138; 147; 168; 206; 215; 300),
or that the wind speeds limits Mr. Adkins recommends for RDS use above
300 feet would be safe (Exs. 153; 163; 184; 298; 317; 329 (1/19/2010,
p. 411); 331; 352). Mr. Craig Schoch, of Tractel, Inc., said OSHA
should reject Mr. Adkins' recommendation because his ``safe'' wind
speeds are based on incorrect deflection assumptions (Ex. 352). Other
stakeholders, including window cleaning contractors and members of the
IWCA I-14.1-2001 committee, said wind speeds of 20--25 mph ``are
excessive'' or ``very dangerous,'' regardless of height (Exs. 317; 329
(1/19/2010, p. 411); 331). Several employers said they discontinue
using RDS when wind speeds are between 15--20 mph and stop cleaning
windows before winds reach 15 mph (Exs. 153; 163; 184; 298). Mr. Terry
said 15 mph is a ``reasonable'' speed limit, but added that his company
stops window cleaning before winds reach that speed (Ex. 163). And
although Mr. Adkins recommended the wind speed alternative, he said:
Now, in actual fact, I've never had anybody work at 15 mph and
never will because that, in my opinion, is too high for . . . a
boatswain's chair, a swingstage, [and] a scaffold (Ex. 329 (1/19/
2010, p. 213)).
Thus, OSHA does not believe there is sufficient evidence that Mr.
Adkins' wind speed/rope length alternative would adequately protect of
workers using RDS, and the final rule does not adopt that approach.
Final paragraph (b)(2)(i) includes two exceptions to the 300-foot
height limit for using RDS. Employers may use RDS above 300 feet when
they demonstrate (1) it is not feasible to access heights above 300
feet by any other means; or (2) other means pose a greater hazard than
using RDS. The proposed rule would have allowed employers to use RDS at
any height when the employer can demonstrate that ``access cannot
otherwise be attained safely and practicably,'' which is consistent
with I-14.1-2001.
OSHA received a number of comments on the proposed exceptions. Some
commenters opposed the proposed exceptions (Exs. 147; 215; 331). For
example, Valcourt said:
In no case should a window cleaning contractor be allowed to
determine when RDS is acceptable over 300 feet. . . . The
determination that RDS can be utilized on a per case basis on
descents over 300 feet
[[Page 82575]]
should be made by a third party qualified person and/or, likely, a
registered professional engineer experienced in facade access
equipment (Ex. 147).
Mr. Coleman, of JOBS, agreed with Valcourt, stating, ``This is a
safety issue and should not be left up to an individual employer or
employee to make an onsite decision of this nature'' (Ex. 215).
Mr. Gartner, of Weatherguard, said OSHA's proposed exception
allowing RDS use above 300 feet when employers cannot attain access
``safely and practicably'' was subjective and difficult to enforce (Ex.
329 (1/19/2011, pgs. 255-256)). He said, ``What is practical for me may
not be practical for you and what I deem to be safely is not
necessarily what you consider safely'' (Ex. 331).
OSHA agrees with the commenters and revised the language in the
final rule to make it consistent with established legal tests and
defenses under the OSH Act.
Final paragraph (b)(2)(ii) requires employers to ensure RDS use is:
In accordance with manufacturer instructions, warnings,
and design limitations (hereafter collectively referred to as
``instructions''), or
Under the direction of a qualified person.
The final rule (Sec. 1910.21(b)) defines qualified as someone who,
by possession of a recognized degree, certificate, or professional
standing, or who by extensive knowledge, training, and experience has
successfully demonstrated the ability to solve or resolve problems
relating to the subject matter, the work, or the project.
The I-14.1-2001 standard also requires that employers use RDS in
accordance with manufacturer's instructions. In addition, the standard
specifies that employers follow design requirements in I-14.1-2001
(Section 5.7.1).
OSHA believes that following manufacturer's instructions is
critical to ensure the safety of workers who use RDS. To illustrate,
manufacturers may design and sell ropes and equipment rated
appropriately for recreational, but not industrial, use. The final rule
requires that employers ensure they use only equipment that the
manufacturer rated for industrial use. Similarly, under the final rule,
employers must ensure that, if they replace elements of one
manufacturer's RDS with the components of another manufacturer's
system, the instructions specify that the components are compatible.
Using incompatible systems or components could endanger the safety of
workers and result in fatal accidents.
Proposed paragraph (b)(2)(i)), like the 1991 RDS memorandum, would
have required that employers use RDS in accordance with manufacturer or
distributor instructions, and did not include the qualified person
option. In the preamble to the proposed rule, OSHA requested comment
about whether to allow employers to act in accordance with the
instructions of either the manufacturer or a qualified person, as
defined in Sec. 1910.21(b) (75 FR 28886).
Commenters overwhelmingly supported adding the qualified person
option and removing distributors (Exs. 138; 150; 153; 163; 184; 221;
220; 241; 242; 243; 245). For instance, Martin's said it was
appropriate to allow employers to rely on qualified persons because
they are ``able to solve relevant problems'' (Ex. 222). Mr. Gene
Donaldson, of Sunlight Building Services (Sunlight), also preferred
qualified persons because they ``must have a recognized degree,
certificate, etc., or extensive experience and ability to solve subject
problems, at the worksite'' (Ex. 227). Mr. Lawrence Green, president of
Clean & Polish, said he supported replacing distributors with qualified
persons ``because distributors primarily sell the product to the end
user and are not responsible for the safety, design and training of the
personnel using them'' (Ex. 242).
OSHA agrees with the commenters and revised final paragraph
(b)(2)(ii) by adding qualified person and deleting distributor. The
Agency believes the revised language in the final rule provides greater
flexibility for employers, while ensuring that RDS use is at the
direction of a person who is qualified.
Final paragraph (b)(2)(iii), like proposed paragraph (b)(2)(ii) and
the 1991 RDS memorandum, requires employers to ensure that each worker
who uses an RDS receives training in accordance with Sec. 1910.30.
This requirement means that the employer must train each worker who
uses an RDS in the proper rigging, use, inspection, and storage of an
RDS before the worker uses the RDS. In addition, since the final rule
requires that each worker who uses an RDS also uses an independent
personal fall arrest system (Sec. 1910.27(b)(2)(vi)), the employer
must ensure that each worker receives fall hazard training before that
worker uses an RDS in an area where the worker may be exposed to fall
hazards (Sec. 1910.30(a)(1)). As final Sec. 1910.30 specifies, the
fall hazard training must include the nature and recognition of the
fall hazards in the work area; the procedures to follow to minimize the
hazards; the correct procedures for installing, inspecting,
maintaining, disassembling, and operating the fall protection systems
workers will use, such as proper hook-up, anchoring, and tie-off
techniques; and methods of inspection and storage of the equipment the
manufacturer specifies (Sec. 1910.30(a)(1) and (3)). Moreover, to
ensure that the RDS training meets the requirements of Sec. 1910.30,
employers also must provide retraining when they have reason to believe
the workers do not have the understanding and skill needed to use RDS
safely.
OSHA notes that the final provision is similar to the I-14.1-2001
standard, which requires that employers train workers who use RDS so
they understand the manufacturer's instructions, inspection of
components, accepted rigging practices, identifying anchorages,
descending, fall arrest requirements, rescue considerations, and safe
working conditions (Section 5.7.2).
OSHA believes that the final provision is necessary. Evidence in
the record indicates that some employers do not train their workers who
use RDS (Ex. 329 (1/19/2011, pgs. 86, 100)). OSHA believes, and
commenters agreed, that workers are able to safely use RDS only if they
are thoroughly knowledgeable in the equipment and its proper use (Exs.
66; 138; 151; 163; 153; 184; 216; 221; 222; 242; 243; 245; 329 (1/19/
2011, pgs. 22-24, 433)). A number of commenters said proper training is
the most important aspect of using RDS safely (Exs. 163; 184; 221; 242;
329 (1/19/2011, p. 252)). Those commenters also said that proper
training would prevent most, if not all, of RDS incidents they
identified (Exs. 163; 184; 221; 242). Similarly, Mr. Capon, of
Valcourt, credited their training program as the reason their company
did not have a fatality during its 25 years of operation (Ex. 329 (1/
19/2011, pgs. 419-420)). Some commenters recommended that OSHA also
require that employers use professional organizations to train and
certify their workers (Exs. 123; 205). The performance-based approach
in the final rule clearly allows employers to use professional
organizations to provide training, and to require that workers receive
certification to operate RDS. However, the performance-based approach
of the final rule gives employers flexibility to determine how to train
their workers, provided the training and the training contents meet the
requirements of Sec. 1910.30. Accordingly, OSHA does not believe it is
necessary to adopt the commenters'
[[Page 82576]]
recommendation, and finalizes the provision as discussed.
Final paragraph (b)(2)(iv), like proposed paragraph (b)(2)(iii),
requires that employers ensure inspection of each RDS at the start of
each workshift in which their workers will use it. Additionally, the
employer must ensure damaged or defective equipment is removed from
service immediately and replaced. The equipment inspection must include
every component of the RDS, including safety devices, ropes, rope
grabs, lanyards, descent devices, harnesses, seat boards, carabiners
and other hardware. When replacing damaged or defective equipment, the
replacement component or system must be compatible, undamaged and not
defective. Overwhelmingly, commenters supported the requirement to
inspect RDS equipment (Exs. 138; 151; 153; 163; 184; 221; 222; 242;
243; 245).
The final rule revises the proposed paragraph to clarify the
regulatory language. First, OSHA drafted the final provision to specify
that employers must inspect each RDS ``at the start of each workshift
that it is to be used'' rather than ``each day before use'' as in the
proposed rule. Therefore, the final rule specifies that employers must
inspect each RDS before a worker uses it in their workday. Thus, to the
extent that there is more than one workshift in a work day, the RDS
needs to be inspected to ensure it is safe for each worker to use
during their workshift. The inspection of RDS equipment at the start of
each workshift ensures that any damage (such as abrasions and cracks)
that may have occurred when using the RDS during the last workshift is
identified, and appropriate action is taken before another worker uses
the RDS. In addition, employers need only inspect an RDS if a worker
will use it during a workshift, rather than each day. The language in
the final rule clarifies this requirement.
Second, the final rule requires that employers remove both damaged
and ``defective'' equipment from service, while the proposed rule only
specified removal of damaged equipment. OSHA added ``defective''
because, regardless of whether an inspection reveals that equipment was
damaged during use or defectively manufactured, OSHA considers such
equipment to be unsuitable for continued use.
Third, OSHA added language to the final rule specifying that
employers remove damaged or defective equipment from service
``immediately.'' This addition is consistent with the I-14.1-2001
standard (Section 5.7.3).
Finally, the final rule revises the proposed rule to specify that
employers must replace damaged or defective equipment removed from
service. OSHA believes this language clarifies that improvised repairs
are not allowed, consistent with I-14.1-2001 (Section 5.7.3). Replacing
damaged or defective components is necessary to ensure that RDS are
restored to their original condition and capacity. For these reasons,
OSHA adopts the final provision as discussed.
Final paragraph (b)(2)(v), like proposed paragraph (b)(2)(iv) and
the 1991 RDS memorandum, requires that employers ensure the RDS has
proper rigging, including proper anchorages and tiebacks. The final
rule also requires that employers ensure that RDS rigging emphasizes
providing tiebacks when using counterweights, cornice hooks, or similar
non-permanent anchorage. The I-14.1 standard addresses proper rigging
by requiring that employers train workers in ``correct'' and
``accepted'' rigging practices (Section 5.7.2).
Proper rigging of RDS equipment is essential to ensure that the
system is safe for workers to use. To ensure proper RDS rigging and
safe use, OSHA believes that employers also must take into
consideration and emphasize the specific conditions present. For
example, OSHA believes that giving particular emphasis to providing
tiebacks when using counterweights, cornice hooks, or similar non-
permanent anchorages is an essential aspect of proper rigging and
necessary to ensure safe work. To illustrate, when tiebacks and
anchorages are not perpendicular to the building face, it may be
necessary for worker safety for employers to install opposing tiebacks
to support and firmly secure the RDS, have at least a 30-degree sag
angle for opposing tiebacks, or ensure that no angle exists on single
tiebacks. In addition, as the final rule specifies, OSHA believes that
employers also must place emphasis on non-permanent anchorages because
of the possibility of damage during transport and installation.
Finally, some commenters recommended that OSHA include additional
rigging requirements in the final rule. For example, Vannoy &
Associates recommended that OSHA include a requirement for angle of
attachment (Ex. 213). OSHA believes that the term ``proper rigging''
includes the angle of attachment and, therefore, needs no further
elaboration. For the reasons discussed above, OSHA adopts the provision
as discussed.
Final paragraph (b)(2)(vi), like proposed paragraph (b)(2)(v) and
the 1991 RDS memorandum, requires that each worker uses a separate,
independent personal fall arrest system, when using an RDS. Final Sec.
1910.140(b) defines personal fall arrest system as ``a system used to
arrest an employee in a fall from a walking-working surface.'' A
personal fall arrest system consists of at least an anchorage,
connector, and a body harness, but also may include a lanyard,
deceleration device, lifeline, or suitable combination of these devices
(Sec. 1910.140(b)). The final rule requires that the personal fall
arrest system meets the requirements in 29 CFR part 1910, subpart I,
particularly final Sec. 1910.140. This final rule is consistent with
other existing OSHA standards (e.g., Sec. 1910.66(j), Powered
Platforms for Building Maintenance, Personal Fall Protection; Sec.
1926.451(g), Scaffolds, Fall Protection), as well as the I-14.1
consensus standard (Section 5.7.6).
OSHA believes the provision is essential to protect workers from
injury or death if a fall occurs. As the 1991 RDS memorandum mentions,
requiring workers to use personal fall arrest systems that are
completely independent of RDS ensures that any failure of the RDS
(e.g., main friction device, seat board, support line, anchorage) does
not affect the ability of the fall arrest system to quickly stop the
worker from falling to a lower level.
Commenters uniformly supported the proposed provision (Exs. 138;
151; 153; 184; 221; 222; 242; 243). Also, Surface Solutions pointed out
that 91 of 125 RDS incidents they reviewed as far back at 1977 resulted
from the lack of an independent personal fall arrest system (Ex. 184).
OSHA finds the comments and data persuasive and, therefore, adopts the
requirement as proposed with only minor editorial change, for clarity.
Final paragraph (b)(2)(vii) requires that employers ensure all
components of each RDS, except seat boards, are capable of supporting a
minimum rated load of 5,000 pounds. For seat boards, the final rule
requires that they be capable of sustaining a live load of 300 pounds.
In accordance with section 6(b)(8) of the OSH Act (29 U.S.C.
655(b)(8)), OSHA revised the final provision in three ways to make it
consistent with the I-14.1-2001 national consensus standard.
First, the final rule revised the proposal (proposed paragraph
(b)(2)(vi)) to require that employers ensure ``all components'' of each
RDS, except seat boards, are capable of supporting a 5,000-pound
minimum rated load. As the final definition of RDS specifies, these
systems usually consist of the following components: Roof anchorage,
support rope, descent device, carabiner(s) or shackle(s), and chair
[[Page 82577]]
(seat board) (final Sec. 1910.21(b)).\39\ I-14.1-2001 (Section 14.1.2)
also requires that each RDS must include the same list of components.
The proposed rule (proposed paragraph (b)(2)(vi)) and 1991 RDS
Memorandum, by contrast, only required that ``all lines'' be capable of
sustaining the required load, but was silent on the minimum load
requirements for other RDS components.
---------------------------------------------------------------------------
\39\ OSHA notes that RDS often include tiebacks, but they are
not a required component of RDS.
---------------------------------------------------------------------------
However, like I-14.1-2001, OSHA believes that requiring all RDS
components, except seat boards, be capable of supporting the required
minimum rated load is essential to ensure that these systems are safe
for workers to use. It makes no difference if RDS lines and ropes are
capable of supporting the minimum 5,000-pound required load if RDS
connectors, anchorages, and other components cannot sustain such a
load. In other words, all components must be able to support the
required load because RDS are only as strong as their weakest
component. Thus, applying the final load requirement to all RDS
components will ensure that none of the critical components will break
or fail when supporting a significant load. OSHA notes that commenters
overwhelmingly support the minimum 5,000 load requirement as essential
to ensure RDS are safe to use (Exs. 138; 151; 153; 184; 221; 222; 242;
243).
Second, in final paragraph (b)(2)(vii), consistent with I-14.1-2001
(Section 14.1.4), OSHA does not apply the 5,000-pound rated load
requirement to seat boards. Instead, OSHA incorporates language from I-
14.1-2001 (Section 14.3.1(c)) specifying that seat boards must be
capable of supporting a live load of at least 300 pounds. I-14.1-2001
(Section 14.3.1(a)) specifies that seat boards must be made of ``wood
or other suitable material,'' which cannot and does not need to support
a rated load of 5,000 pounds. OSHA notes that final paragraph
(b)(2)(vi), as mentioned, requires that employers ensure each employee
who uses an RDS also uses a ``separate, independent personal fall
arrest system'' that meets the requirements in final Sec. 1910.140.
Third, the final rule, consistent with I-14.1-2001 (Section
14.1.4), revises the proposed rule to require that RDS components be
capable of sustaining a minimum ``rated load'' of 5,000 pounds. The
proposed rule specified that RDS lines be able to sustain a minimum
``tensile load'' of 5,000 pounds. OSHA believes that ``rated load'' or
``rated strength'' is the appropriate term to specify the ability of
all RDS components to support a load and is consistent with the I-14.1-
2001 standard. I-14.1-2001 (Section 2) broadly defines ``rated load''
as ``the combined weight of the [workers], tools, equipment, and other
materials which the device is designed and installed to lift.'' Tensile
load, on the other hand, is the maximum stress that material can
withstand while being stretched before breaking or failing. While the
term is appropriate to use for identifying the required strength of
ropes or lines, it is not a standard measure for components that do not
stretch.
OSHA notes that the final rule does not preclude the use of lines
or ropes that have a knot, swage, or eye splice, which could reduce the
tensile strength of a rope or line. However, under final paragraph
(b)(2)(vii), even if an employer uses a line or rope that has a knot,
swage, or eye split, the rope or line still must be capable of
supporting a minimum rated load of 5,000 pounds. Several commenters
supported this interpretation of the final paragraph (b)(2)(vii).
In conclusion, OSHA believes that employers should not have
difficulty complying with the final paragraph (b)(2)(vii) as revised.
Virtually all RDS manufactured today meet the design requirements in I-
14.1-2001 (Section 14) (See e.g., Ex. 242). In addition, I-14.1-2001
represents standard industry practice, thus, OSHA believes that the
revisions to final paragraph (b)(2)(vii) will make the final rule
easier to understand and reduce potential for confusion.
Final paragraph (b)(2)(viii), like proposed paragraph (b)(2)(vii),
requires that employers provide for prompt rescue of each worker in the
event of a fall. The final rule is almost the same as the 1991 RDS
memorandum and Sec. 1910.140(c)(21), and generally consistent with the
I-14.1 standard (Section 5.7.11).
Like Sec. 1910.140(c)(21), final paragraph (b)(2)(viii)
establishes two fundamental points--(1) employers must provide for the
rescue of workers when a fall occurs, and (2) the rescue must be
prompt. First, providing for rescue means employers need to develop and
put in place a plan or procedures for effective rescue. The plan needs
to include making rescue resources available (i.e., rescue equipment,
personnel) and ensuring that workers understand the plan.
Appendix C to Sec. 1910.140 provides guidance to employers on
developing a rescue plan (appendix C, Section (h)). For example,
appendix C recommends that employers evaluate the availability of
rescue personnel, ladders, and other rescue equipment, such as
mechanical devices with descent capability that allow for self-rescue
and devices that allow suspended workers to maintain circulation in
their legs while they are awaiting rescue. OSHA's Safety and Health
Information Bulletin on Suspension Trauma/Orthostatic Intolerance
identifies factors that employers should consider in developing and
implementing a rescue plan, including being aware of signs and symptoms
of suspension trauma and factors that can increase the risk of such
trauma, rescuing unconscious workers, monitoring suspended and rescued
workers, and providing first aid for workers showing signs and symptoms
of orthostatic intolerance (SHIB 03-24-2004).\40\
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\40\ SHIB 03-24-2006 is available from OSHA's Web site at:
http://www.osha.gov/dts/shib/shib032404.html.
---------------------------------------------------------------------------
Although an increasing number of employers train workers and
provide devices that allow workers to rescue themselves (Exs. 227;
242), the employer's rescue plan still needs to make provisions for
appropriate rescue personnel and equipment because self-rescue may not
be possible in some situations. For example, unconscious workers will
not be able to move and, therefore, cannot pump their legs to maintain
circulation or relieve pressure on the leg muscles. The same may be
true for seriously injured workers or workers who are in shock. When
RDS ropes get caught on structures or entangled, workers may not be
able to self-rescue (see analysis of RDS and suspended scaffolding
incidents in Ex. 163).
Second, the final rule requires that employers provide ``prompt''
rescue of workers suspended after a fall. Sunlight Building Services
commented that ``prompt'' is ambiguous, and asked whether OSHA defines
it to mean ``immediately'' or ``quickly'' (Ex. 227). The International
Safety Equipment Association (ISEA) and Capital Safety Group (CSG)
urged OSHA to require that rescue of suspended workers occur
``quickly,'' pointing out the life-threatening dangers of suspension
trauma/orthostatic intolerance (Exs. 185; 198).
OSHA agrees with ISEA and CSG. OSHA's definition of ``quick'' or
``prompt'' is performance-based. Prompt means that employers must act
quickly enough to ensure that the rescue is effective; that is, to
ensure that the worker is not seriously injured. If the worker is
injured in the fall, the employer must act quickly enough to
[[Page 82578]]
mitigate the severity of the injury and increase the survivability of
the worker. OSHA's performance-based definition has consistently
recognized, and taken into account, life-threatening injuries and
dangers (Ex. 22; see also 76 FR 24576 (5/2/2011); Letter to Charles
Brogan, January 16, 2007; Letter to Brian F. Bisland (March 23, 2007)).
For example, OSHA's Safety and Health Information Bulletin (SHIB) on
orthostatic intolerance explains:
Orthostatic intolerance may be experienced by workers using fall
arrest systems. Following a fall, a worker may remain suspended in a
harness. The sustained immobility may lead to a state of
unconsciousness. Depending on the length of time the suspended
worker is unconscious/immobile and the level of venous pooling, the
resulting orthostatic intolerance may lead to death. . . . Unless
the worker is rescued promptly using established safe procedures,
venous pooling and orthostatic intolerance could result in serious
or fatal injury, as the brain, kidneys, and other organs are
deprived of oxygen.
Prolonged suspension from fall arrest systems can cause
orthostatic intolerance, which, in turn, can result in serious
physical injury, or potentially, death. Research indicates that
suspension in a fall arrest device can result in unconsciousness,
followed by death, in less than 30 minutes (SHIB 03-24-2004).
In sum, prompt rescue means employers must be able to rescue
suspended workers quickly enough to ensure the rescue is successful,
i.e., quickly enough to ensure that the employee does not suffer
physical injury (such as injury or unconsciousness from orthostatic
intolerance) or death. Many employers provide self-rescue equipment so
workers can rescue themselves quickly after a fall, ensuring that the
rescue is prompt and risks associated with prolonged suspension are
minimal. OSHA believes the performance-based approach in the final rule
will ensure prompt rescue of workers after a fall, while also giving
employers flexibility to determine how best to provide prompt and
effective rescue in the particular circumstance.
Commenters uniformly supported the proposed provision (Exs. 138;
153; 184; 221; 222; 242; 243). Clean & Polish said, ``It is a
documented fact that there is a great risk of suspension trauma when
hanging from a harness.'' Accordingly, they recommended that a team of
at least two workers should perform every job assignment and that
workers receive training in self-rescue (Ex. 242). Sunlight also
supported self-rescue, saying it is the quickest form of rescue,
followed by assistance from a coworker trained in rescue. Sunlight
added that, in a medical emergency, they recommend calling the local
fire department (Ex. 227). A number of commenters said they train their
own workers in rescue and require them to practice/demonstrate their
rescue capabilities at least twice a year (Exs. 184; 221; 227; 243).
The final rule is performance-based and gives employers flexibility
to select the rescue methods that work best for their workers and
worksite. However, OSHA emphasizes that, whatever rescue methods
employers use, they are responsible for ensuring that it provides
prompt rescue. Some commenters said they rely on calling local
emergency responders, which may or may not be adequate. If employers
rely on this method of rescue, they need to ensure that the responders
have the appropriate equipment to perform a high angle rescue and are
trained and qualified to do so. (Also see the discussion of prompt
rescue in final Sec. 1910.140 below.)
Final paragraph (b)(2)(ix), consistent with proposed paragraph
(b)(2)(viii), the 1991 RDS memorandum, and I-14.1 (Section 5.7.5),
requires that employers ensure the ropes of each RDS are effectively
padded or otherwise protected where they contact edges of the building,
anchorage, obstructions, or other surfaces to prevent them from being
cut or weakened. Padding protects RDS ropes from abrasion that can
weaken the strength of the rope. If employers do not protect RDS ropes,
the ropes can wear against the sharp edges of buildings (e.g.,
parapets, window frames, cornices, overhangs), damaging their
structural integrity and possibly causing them to break.
The final rule requires that employers ensure the rope padding is
``effective.'' To be effective, padding needs to be, for example,
firmly secured in place and strong and thick enough to prevent
abrasion. To ensure the padding remains effective, employers also need
to inspect it ``regularly and as necessary'' (final Sec.
1910.22(d)(1)).
OSHA added language to the final rule specifying that employers may
ensure that ropes are padded or ``otherwise protected.'' OSHA believes
the added language gives employers greater flexibility in complying
with final (b)(2)(ix). OSHA recognizes that padding may not be the only
effective measure available to employers. For example, several
commenters said that parapet carpets and rope-wrapper protection are
effective rope protection devices (Exs. 138; 153; 184; 221; 242). Other
available measures include rubber hoses and polyvinyl chloride (PVC)
piping. OSHA believes that various materials are readily available and
used in common industry practice; thus, employers should not have
significant problems complying with the final rule.
Overwhelmingly, commenters supported the provision (Exs. 138; 153;
184; 221; 222; 242; 243), and OSHA did not receive any comments
opposing the requirement. Therefore, OSHA adopts the provision as
discussed.
Final paragraph (b)(2)(x), like proposed paragraph (b)(2)(ix),
requires that employers provide stabilization at the worker's specific
work location whenever descents are greater than 130 feet. The purpose
of the stabilization requirement is to reduce the risks of worker
injury when longer descents are made using a RDS.
For purposes of final paragraph (b)(2)(x), the worker's ``specific
work location'' refers to the location in the descent where the worker
is performing the work tasks that necessitate the use of an RDS. For
example, a window cleaner's specific work location is the window the
worker is cleaning. While using an RDS, workers may have many specific
work locations during a descent, and they must be stabilized at each of
those locations when the descent is greater than 130 feet.
OSHA uses a performance-based approach in final paragraph
(b)(2)(x). It gives employers the flexibility to use intermittent or
continuous stabilization. In addition, the final rule allows employers
to use any method of stabilization (e.g., suction cups, rail and track
system) that is effective to protect workers from adverse environmental
effects, such as gusty or excessive wind.
OSHA notes that the 1991 RDS memorandum included a requirement for
``intermittent'' stabilization on descents in excess of 130 feet.\41\
Similarly, the I-14.1 standard, which also requires stabilization on
descents greater than 130 feet, specifies that stabilization may
include continuous, intermittent, or work station stabilization
(Section 5.7.12). The I-14.1-2001 standard identifies suction cups as
an example of work station stabilization.
---------------------------------------------------------------------------
\41\ Shortly after OSHA issued the 1991 RDS memorandum, the
Agency confirmed that employers could use suction cups to meet the
stabilization requirement in the memorandum (Letter to Mr. Michael
Bell, July 31, 1991, available on OSHA's website at: http://www.osha.gov/portable_ladders/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_id=22722).
---------------------------------------------------------------------------
In the proposed rule, OSHA requested information on commonly used
methods of stabilization and on other methods that may increase worker
safety. The vast majority of commenters
[[Page 82579]]
said suction cups are the method they most use for stabilization (Exs.
138; 163; 184; 221; 222; 241; 242). Some commenters said they use
different methods for stabilization, but only mentioned suction cups,
and said suction cups is their ``primary'' method (Exs. 163; 184; 221;
242; 329 (1/19/2011, p. 436)).
Sunlight said that some buildings have permanent rail or track
systems to provide stabilization (Ex. 227). TRACTEL North America
(TRACTEL) also said they use ``mulling and track,'' designed for use by
powered platforms for stabilization, to stabilize RDS (Ex. 329 (1/19/
2011, p. 436)). TRACTEL added that mulling and track stabilization
systems provide greater protection because the stabilization is
continuous, while suction cups only provide intermittent protection
(Ex. 329 (1/19/2011, p. 436)).
Many commenters supported the RDS stabilization requirement for
work operations involving descents greater than 130 feet (Exs. 138;
147; 151; 215; 222; 241; 227; 356), and a number of commenters
supported the use of suction cups as an effective stabilization method
(Exs. 138; 151; 152; 222; 241).
However, a number of commenters said stabilization is not
necessary. They indicated there was no need for a stabilization
requirement because the prohibition against using RDS in adverse or
hazardous weather is adequate and a more protective approach (Exs. 163;
184; 221; 227; 241; 242; 243). Mr. Terry, of Sparkling Clean,
explained:
Every incident that can be partially abated by stabilization can
be totally abated by substituting a restriction from working in
adverse weather restrictions. Suspended workers using [RDS] only
need stabilization during adverse weather conditions. . . .
[Suction cups] can certainly be used for stabilization, if a
worker chooses to work in adverse conditions that should have been
avoided in the first place . . . (Ex. 163).
Ms. McCurley, of SPRAT, also said the proposed requirement was not
necessary:
Sometimes stabilization is required, and when stabilization is
required, the stabilization needs to be adequate to the situation.
But, stabilization is not necessarily required just as a matter of
course. . . . [T]hat requirement tends to come from the scaffold
industry, which does require stabilization all the time, because
that's what scaffolds do. They have to have stabilization. But,
because of the individual not having nearly the wind load--a wind
load on this table, because it looks a lot like an airplane wing, is
going to have a much different effect than the same wind load on
your body standing there (Ex. 329 (1/19/2011, pgs. 167-168)).
Nevertheless, Mr. Terry and other commenters said they provide
stabilization devices (primarily suction cups) and use them on descents
as short as 10 feet (Exs. 163; 184; 221; 242; 329 (1/19/2011, p. 62)).
Mr. Terry pointed out that his company uses the suction cups ``for
positioning to keep us in front of the glass, not for stabilization
against the effects of the wind'' (Ex. 329 (1/19/2011, p. 337)).
Mr. Diebolt, of Vertical Access, did not oppose the concept of
stabilization, but opposed OSHA's 130-foot trigger:
Now, the 130-foot tie-offs, I have essentially the same
objections. It seems arbitrary for the kind of work at least that we
do, it's unnecessary. . . . Granted we're doing light work, making
observations and notes and that sort of thing. Occasionally, we have
done some work like take core samples out of a concrete structure
using a coring rig drill rig hung from a separate line. And under
those conditions, you do actually have to put in a bolt or something
to hold you to the building . . . when you're on a long pendulum,
when you're on a long tether.
But making it mandatory seems arbitrary and sort of eliminates
the possibility of the flexibility of doing the work (Ex. 329 (1/21/
2011, pgs. 139-140)).
However, the major objection to the proposed rule was not to the
proposed regulatory text, but rather with the use of suction cups as a
stabilization method. The Glass Association of North America (GANA), a
trade association representing the architectural and glazing industry,
recommended that OSHA not to allow the use of suction cups for worker
stabilization:
Glass is a brittle material and, as such, can break without
warning and vacate the window framing system. Glass installed in
commercial and residential buildings is designed to withstand
external loads, primarily wind events, with a certain safety factor.
. . . In other words, breakage cannot be eliminated in brittle
materials like glass. There is no way to guarantee a specific lite
of glass will not break under the loads exerted by workers as they
move vertically and horizontally back and forth across the glass
lites. . . . The use of suction cups may be sufficient in certain
conditions to cause the glass to break and vacate the opening,
particularly in the event the RDS fails and the worker is left to
rely upon the suction cups used for stabilization . . . to support
his/her weight.
GANA urges OSHA, in its final rule, to reject the use of suction
cups as an approved employee work location stabilization device for
RDS. . . . Their use does not satisfy the safety criteria OSHA has
established for this rulemaking proceeding: ``to be effective, fall
protection systems must be both strong enough to provide the
necessary fall protection and capable of absorbing fall impact so
that the forces imposed on employees when stopping falls do not
result in injury or death'' (Ex. 252).
Mr. Gartner, of Weatherguard, and Mr. Coleman, of JOBS, opposed the
use of suction cups for the same reasons as GANA (Ex. 215; 329 (1/19/
2011, pgs. 259-260)). Mr. Gartner said:
The use of suction devices for stabilization is problematic. The
glass industry strongly discourages them and the window wall people
are robustly against them. They are devices used at whim. The loads
that they apply to a surface are totally unknown as there are
numerous barrier bowls that influence them and they're applied to
surfaces that have never been rated for these pinpoint concentrated
loads.
Applying a device to glass seems reckless when we're all aware
of glass's characteristics and lack of strength. Furthermore, as
glass ages, it becomes more brittle and it loses strength, just
another variable to make their use totally uncontrolled (Ex. 329 (1/
19/2011, pgs. 259-260)).
Mr. Coleman also stated:
In order for Work Station Stabilization to be safe, the worker
must attach to a component of the building curtain wall that is
designed for and capable of providing the stabilization required.
Presently most Work Station Stabilization is done by using suction
cups attached to the glass pane. The glass is typically not designed
for such point loading; it is designed for a wind load spread out
over the entire surface of the glass (Ex. 215).
Therefore, Mr. Coleman concluded that the final rule should not allow
suction cups, which provide only intermittent stabilization, as the
primary stabilization device (Ex. 356). Rather, he said OSHA should
define ``Work Station Stabilization'' as: ``a means to stabilize
suspended access equipment by securing the worker or suspended access
equipment to an approved anchor point on the exterior of the building
surface,'' thus ensuring continuous stabilization (Ex. 215). Mr.
Schoch, of TRACTEL, agreed with Mr. Coleman's recommendation (Ex. 329
(1/19/2011, p. 439)).
Several workers, based on personal experience, also opposed the use
of suction cups, calling the devices ``unsafe'' (Exs. 311; 316; 329 (1/
19/2011, pgs. 5, 8, 15, 18, 19, 61, 62); 329 (1/20/2011, p. 222)). For
instance, Mr. Rosario, of SEIU Local 32BJ, stated:
I believe the use of suction cups fails to provide adequate
protection. Suction cups are unreliable because they get dirty and
fail to maintain suction. I remember having to clean 20-story
buildings, sometimes with multiple stops per floor. At least half
the time I applied the [suction] cup, it released during the
cleaning and I had to apply it again (Ex. 311).
Mr. Rosario also said the support offered by suction cups ``usually
only lasts for a few seconds'' (Ex. 329 (1/19/2011, p. 19)). Mr.
Rosario added that
[[Page 82580]]
usually he had to clean suction cups four or five times per descent
(Ex. 329 (1/19/2011, p. 86)). Mr. McEneaney, with SEIU Local 32BJ, said
suction cups were not reliable stabilization devices because they leave
the worker ``de-stabilized during the movement from one floor to
another'' (Ex. 329 (1/19/2011, p. 15)). However, most commenters said
they primarily use suction cups for stabilization, and did not indicate
they were not effective (Exs. 138; 163; 184; 222; 227; 241; 242).
After reviewing the rulemaking record, OSHA decided, for several
reasons, to adopt the stabilization requirement as proposed. First,
OSHA believes, and many commenters agreed, that stabilization of RDS is
necessary to protect workers on descents greater than 130 feet. The
effects of wind gusts, microbursts, and tunneling wind currents on
longer RDS ropes is particularly severe and likely to increase the risk
of injury to workers. For instance, increases or changes in the wind
can cause a significant pendulum effect on the long RDS ropes, and will
cause workers not stabilized to swing a great distance away from or
into the building, possibly causing injury or death. For example, the
RDS accident data analysis Mr. Terry submitted indicated that strong
wind gusts (more than 35 mph) swung two workers using RDS 30 feet away
from a building (Ex. 163).
In addition, even a single wind gust or a sudden drop in the wind
speed can initiate this pendulum effect on RDS ropes and destabilize
the workers using them. Moreover, when RDS ropes are long, the
slightest wind movement also can cause the ropes to sway (i.e.,
pendulum effect) and swing or propel workers into the building. OSHA
believes that requiring stabilization in these situations will prevent
RDS ropes from swaying and buffeting workers against the building.
Mr. Terry's accident analysis demonstrates what can happen when
workers are not using stabilization, and how using stabilization could
prevent such cases. Three RDS accidents in that analysis involved wind:
Window cleaner cleaning 50-story building became stranded
in descent equipment line as a result of a wind gust;
Window cleaner was stuck between 12th and 13th floor and
managed to rest on narrow window ledge. Winds that were gusting 35 mph
caught his ropes and wrapped them around an antenna on the west side of
the building so worker was unable free to himself; and
Two window cleaners were left dangling from a building
when their lines became tangled during a windy rain shower. Wind was
gusting about 36 mph. The workers were stuck between the 11th and 14th
floors and blown 30 feet away from the building (Ex. 163).
OSHA believes that stabilization, as required by this final
standard, could prevent many such incidents.
Second, while OSHA agrees that employers must not allow workers to
perform suspended work in hazardous weather and gusty or excessive
winds, the Agency also recognizes that adverse conditions can suddenly
occur without warning. When such conditions occur, employers must
ensure that workers using RDS have stabilization methods immediately
available so they can protect themselves from the effects of the wind,
even if all they are doing is descending to stop work due to hazardous
weather conditions. OSHA notes that even those commenters who asserted
that stabilization is not necessary because weather restrictions can
totally abate the hazard, also noted that they regularly use and rely
on stabilization devices, even on descents as short as 10 feet (Exs.
163; 184; 221; 242).
Third, the final rule is consistent with the I-14.1-2001 national
consensus standard. The I-14.1-2001 standard also requires that
employers ensure workers using RDS have stabilization at their work
station on all descents greater than 130 feet (Section 5.7.12). The I-
14.1-2001 standard reflects best industry practices.
With regard to suction cups, for the following reasons OSHA decided
not to prohibit their use under the final rule. First, OSHA believes
that suction cups provide effective stabilization for workers using
RDS, particularly in long descents. The record shows that suction cups
are an effective and easy-to-use device that helps keep workers
positioned or stabilized at their specific work location (Exs. 137;
138; 147; 153; 163; 184; 298).
OSHA received a comment from GANA stating that suction cups are not
safe or effective to use for stabilization (Ex. 252). GANA's comment
appears to indicate that they believe suction cups are a type of
personal fall protection system, and concludes suction cups are not
effective because the cups are not ``strong enough to provide the
necessary fall protection and capable of absorbing fall impact so that
the forces imposed on employees when stopping falls do not result in
injury or death'' (Ex. 252). GANA also says suction cups are not
effective because they cannot support the worker's weight if the RDS
and personal fall arrest system both fail (Ex. 252). However, OSHA
agrees with IWCA's post-hearing comments that GANA's description of the
purpose and use of suction cups is not accurate (Ex. 346). As IWCA
points out, and OSHA agrees, ``Suction cups are not intended to be part
of the fall protection system and they are not part of the fall
protection system'' (Ex. 346).
The second reason for allowing suction cups is that OSHA believes
suction cups can provide stabilization and protection when sudden
weather conditions occur while the worker is using an RDS, even if
workers use the suction cups only to safely descend due to excessive
wind. As Mr. Terry said, ``In the event of a sudden unforeseen weather
hazard, the [RDS user] . . . can very easily . . . utilize the suction
cup. . . . This method of stability can even be performed while
descending out of harm's way'' (Ex. 329 (1/19/2011, p. 329)).
Third, OSHA believes that suction cups are widely used and accepted
by employers and workers who use RDS, even by those employers who doubt
the need for stabilization, because the devices have a track record of
being effective, and economical. As far back as July 31, 1991, OSHA
allowed employers to use suction cups to meet the stabilization
requirement in the 1991 RDS memorandum. IWCA said that, since 1991, the
use of suction cups in conjunction with RDS is widespread among window
cleaning companies and workers in the United States and other countries
(Ex. 346). Over that period, neither OSHA nor IWCA are aware of any
data or evidence indicating that a significant problem exists with
using suction cups. Although GANA said it is not safe to use suction
cups on glass, they did not provide any data indicating that suction
cups are causing glass windows to break (Ex. 252). Moreover, according
to IWCA, a 2010 GANA press release said their members did not have any
record of windows breaking when window cleaners were using suction cups
(Ex. 346). OSHA notes that a review of the rulemaking record failed to
show that suction cups cause anything more than a few isolated cases of
window breakage. For example, Mr. John Capon, of Valcourt, reported
that each year his company only had to replace 15 to 20 windows on the
approximately 4,000 buildings they clean 2-3 times each year because of
suction cup-related damage (Ex. 329 (1/19/2011, p. 372, 399)).
Finally, the performance-based final rule allows, but does not
require, the use of suction cups for stabilization. Employers are free
to use other devices, and some commenters said they use other
stabilization methods, such as rail
[[Page 82581]]
and track systems, that provide continuous stabilization (Exs. 163;
184; 221; 242; 329 (1/19/2011, p. 436)). Based on the above discussion,
OSHA concludes that stabilization is essential at specific workplaces
where descents are greater than 130 feet and is finalizing the
provision as proposed.
Final paragraph (b)(2)(xi) is a new provision added to the final
rule that requires employers to ensure no worker uses an RDS when
``hazardous weather conditions'' are present. The final provision also
identifies some examples of weather conditions that OSHA considers
hazardous for workers using RDS: Storms and gusty or excessive wind.
OSHA's general industry standard on powered platforms (Sec.
1910.66) and construction standard on scaffolds (Sec. 1926.451) also
prohibit elevated work when certain weather conditions are present.
Specifically, the powered platforms standard prohibits using powered
platforms in winds in excess of 25 mph, and requires that employers
determine wind speed based on ``the best available information, which
includes on-site anemometer readings and local weather forecasts, which
predict wind velocities for the area'' (Sec. 1910.66(i)(2)(v)). The
construction standard prohibits work on scaffolds during storms or high
winds ``unless a competent person has determined that it is safe for
employees to be on the scaffold and those employees are protected by
personal fall arrest systems or wind screens'' (Sec. 1926.451(f)(12)).
The I-14.1 standard also prohibits window cleaning operations and
RDS use when the ``work area is exposed to excessive winds,'' which the
standard defines as ``any wind which constitutes a hazard to the
worker, public or property'' (Sections 3.7 and 5.7.12). The I-14.1 also
requires that employers train workers in the effects of wind on RDS
operations, and make workers aware of ``the potential of sudden
climatic changes such as wind gusts, micro bursts or tunneling wind
currents'' when they perform descents over 130 feet (Section
5.7.11(a)).
In the preamble to the proposed rule, OSHA requested comment on a
number of issues regarding hazardous weather conditions including the
following (75 FR 28886):
Should the final rule prohibit RDS use in certain weather
conditions? If so, what conditions?
How should employers determine whether weather conditions
are hazardous?
How should OSHA define excessive wind?
Should the final rule prohibit RDS use if winds reach a
specific speed? If so, what speed?
Should the final rule require that employers monitor winds
speeds? If so, how?
Overwhelmingly, commenters supported prohibiting the use of RDS, as
well as suspended scaffolding, in inclement or hazardous weather (Exs.
151; 163; 184; 221; 222; 227; 241; 242; 243; 329 (1/19/2011, p. 329)).
They also agreed that conditions such as ``thunderstorms, lightning;
hail, high winds, hurricane, snow and ice storms'' were hazardous.
Sunlight added that heavy rain and extreme cold also make RDS use
hazardous: ``Rain can affect the operation of the working line but the
use of rope that is essentially waterproof can negate this problem.
Very cold weather stiffens the rope and especially wet rope can be a
hazard'' (Ex. 227).
In addition, some commenters said that as the length of rope during
a drop increases, the effects of wind on RDS can increase (Exs. 147;
329 (1/19/2011, pgs. 253, 291-292)). As mentioned in the proposed rule,
the greater the length of rope used for a descent, the greater the
adverse effects of environmental factors such as wind gusts,
microbursts, or tunneling wind currents, and the greater the risk of
injury to workers (75 FR 28886). OSHA notes that some window cleaning
companies disagreed that greater heights pose greater wind effects on
RDS (Exs. 222; 247; 329 (1/19/2011, p. 329)). Dana Taylor, of Martin's,
said their accident analysis files did not show any RDS accidents
occurring due to excessive wind (i.e., ``wind gusts, microbursts or
tunneling wind currents'') (Ex. 222). Sam Terry of Sparkling Clean
said:
The adverse effects of environmental factors do not affect rope
access any more than they affect suspended scaffolding. In
actuality, users of rope access have the ability to get themselves
and their equipment out of harm's way should unexpected weather
hazards suddenly appear much quicker than users of suspended
scaffolding.
In the event of a sudden unforeseen weather hazard, the user of
rope access can very easily use their hands, arms, legs, and feet to
hold on to parts of the building or structure or to utilize the
suction cup as long as a smooth surface is available. This method of
stability can even be performed while descending out of harm's way.
(Ex. 329, 1/19/2011, p. 329)).
Commenters also had different viewpoints about defining
``excessive'' wind. Some commenters said winds were excessive and
dangerous when they reached 25 mph (Exs. 227; 329 (1/19/2011, p. 411)),
while others said winds in excess of 15 mph were too high to use RDS
(Exs. 138; 151; 152; 222; 329 (1/19/2011, p. 329)). For instance, John
Capon of Valcourt said: ``I don't work . . . in more than 10 or 15
miles per hour [wind] and I almost look at that as normal. That seems a
little awkward to me because that's not very windy at all. When it gets
to 20 and 25 miles per hour, to me it gets very dangerous'' (Ex. 329
(1/19/2011, p. 411)).
Several stakeholders in the window cleaning industry indicated that
including a 15-mph or 25-mph wind speed limit in the final rule was not
necessary. Texas Window Cleaning Company said: ``Not many window
cleaners are going to risk their health on wind, storm or other
increments of bad weather. They know and are trained when, where and
how to postpone the cleaning'' (Ex. 218).
Other window cleaning companies indicated that water ``blowback''
stops window cleaning operations long before winds reach 15 mph to 25
mph (Exs. 151; 163; 329 (1/19/2011, pgs. 213-214)). Mr. Adkins, of
Corporate Cleaning, explained:
I've never had anybody work at 15 miles an hour and never will
because that, in my opinion, is too high, both for a boatswain's
chair, a swingstage, a scaffold. Also, I might add there's something
else that happens with window washing and that's the blowback
effect. Window washers don't like to do their work over, and at a
certain level of wind, you wind up with dirty water blowing on clean
windows . . . which, of course, the customer doesn't like. They want
us to come back, do it over. So, consequently, that's a lower level
normally than anything where you have to worry about safety. Most
normal window washers will shut down and we support this, we fully
support this because I don't want the phone call from the property
manager. Most window washers will shut down before they reach an
unsafe level, before they come anywhere near it. The most I think
I've ever seen our company working is in 15-mph winds (Ex. 329 (1/
19/2011, pgs. 213-214)).
For companies that use RDS to perform operations that do not have
the ``built-in monitoring'' capability for blowback of water, several
commenters said, ``[I]t would seem to me that a 15 mph limit is
reasonable'' (Exs. 163; 221).
The American Wind Energy Association (AWEA), however, opposed
adding any wind-speed restriction to the final rule because it would be
``detrimental'' to the wind energy industry, which works in windy areas
(Ex. 178). AWEA said that OSHA should allow employers to establish
their own ``detailed policies and [job hazard analyses] for work in
inclement weather'' (Ex. 178). Mr. Diebolt, of Vertical Access, also
agreed that employers should be able to set their own weather policies:
[[Page 82582]]
Just a word about weather and changing site conditions. Wind has
been a concern and understandably. But you can understand after
AWEA's testimony this morning that a wind effect of somebody hanging
on the outside of a turbine or working on top of a nacelle is
entirely different from somebody working on a bridge, pier, abutment
or the side of a building (Ex. 329 (1/21/2011, pgs. 139-140)).
With regard to monitoring wind speed, several window cleaning companies
indicated that it was not necessary because ``blowback'' of water is an
adequate measure (Exs. 138; 163; 222). That said, some of these
companies recommended that employers monitor weather reports in their
area and notify workers of changes that would prohibit the use of RDS
(Exs. 151; 163; 222). Sunlight noted that ``the use of [B]lackberry,
PDAs, internet and cell phones give the employer the tools to monitor
weather conditions in real time'' (Ex. 227).
OSHA agrees with commenters who said the final standard must
prohibit the use of RDS when weather conditions are hazardous for
workers and the equipment. As the record and OSHA standards indicate,
workers using RDS are vulnerable to sudden weather changes such as wind
gusts, microbursts, and wind tunneling. Gusty and excessive winds can
cause workers using RDS to swing into buildings, resulting in possible
injury or death.
OSHA believes that employers' support of a mandatory prohibition on
RDS during windy weather indicates that they are aware of the hazards
posed by inclement weather. That said, the record indicates that what
constitutes ``hazardous'' weather and ``excessive'' wind is dependent
on the type of work performed when using RDS. For window cleaning, the
record shows that water blowback acts as a reliable sign that winds
have become excessive, even if they are well below 15 mph. However, for
other jobs it may be safe to use RDS at higher wind speeds, depending
on the type of job performed. For instance, the record indicates that
using an RDS below 130 feet may be safe when winds approach 25 mph, but
hazardous when using RDS at heights approaching 300 feet, or when the
length of the descent rope is long.
In light of the many variables of RDS use, OSHA decided that using
a performance-based approach in the final rule is the most effective
way to cover varying worksite and job conditions. Under the
performance-based final rule, employers must evaluate or analyze the
worksite and job variables in light of existing weather conditions. If
that analysis indicates that weather conditions are hazardous and winds
are excessive, the employer must ensure that no employee uses an RDS.
OSHA believes this approach will best ensure that employers provide an
adequate level of safety, and take appropriate measures to protect
workers in each specific work operation. Moreover, OSHA believes the
performance-based final rule will not impose significant burdens on
employers. The record shows that employers said they already monitor
on-site weather conditions to determine whether to proceed with or
postpone the job.
OSHA also believes the performance-based approach obviates the need
to require in the final rule that employers conduct on-site weather
monitoring or use specific weather-monitoring systems. The record shows
that many employers currently use various electronic tools to monitor
local weather forecasts.
Final paragraph (b)(2)(xii), like proposed paragraph (b)(2)(x),
requires that employers ensure equipment is secured by a tool lanyard
or similar method to prevent it from falling. Examples of equipment
include tools, squeegees, and buckets. The purpose of this provision is
to protect workers and the public below from being struck by falling
equipment. The final rule is consistent with the I-14.1-2001 standard
(Sections 3.10 and 5.7.15), and supplements the falling object
requirements in final Sec. 1910.28(c) (Protection from falling
objects).
Several commenters, including IWCA, supported the requirement (Exs.
138; 151; 153). However, Mr. Donaldson, of Sunlight, said the provision
was not practical or needed (Ex. 227). In particular, he stated that
tool bungees are imperative to the window cleaning business, but a
serious impediment to the use of squeegees or other tools. Therefore,
he suggested the following alternative to the final rule:
The danger of workers below being struck by falling equipment is
minimal. Workers rarely work directly below other workers. The tools
themselves are light and blunt and could not cause serious injury
unless dropped from a great height. . . . Requiring window cleaners
to wear hard hats would be a more practical solution than tool
bungees (Ex. 227).
AWEA also suggested additional alternatives:
[T]here are various ways to protect workers from falling objects
in the wind industry. Workers are prohibited to work below other
workers when using items that can fall. In addition, workers often
use tool tethers for equipment. Typically, tools are hoisted in tool
buckets versus being carried by workers. This practice allows the
trained employee free use of his hands and mitigates the potential
for tools falling out of workers' pockets (Ex. 329 (1/21/2011, p.
12)).
OSHA does not agree with Sunlight's comment for several reasons.
First, OSHA believes the performance-based approach in the final rule
assures that employers have maximum flexibility in meeting the
requirement to secure equipment (e.g., tools, squeegees, buckets) that
workers use. Many different types of tool lanyards and similar methods
are currently available to secure equipment. Tool lanyards and other
securing equipment are available in many types, lengths, and load
capacities, and a worker can secure the equipment at various points,
including the worker's wrist, tool belt, harness, and seat board.
Second, Mr. Donaldson did not provide any explanation about how or
why tool bungees are a ``serious impediment'' to using squeegees and
other tools. OSHA did not receive any other comments supporting Mr.
Donaldson's claim.
Third, OSHA disagrees with Mr. Donaldson's assertion that falling
tools will not cause serious injury if they hit workers below. Many of
the tools employees use in suspended work can be heavy and sharp (e.g.,
a bucket of cleaning water or the corner at the end of a squeegee).
Tools can cause injury to various parts of the body, especially if
dropped from significant heights. In any event, Mr. Donaldson's
recommendation that employees wear head protection when they work below
elevated workers, such as window cleaners, will not protect other
persons who also may be below.
With regard to the controls AWEA identified, OSHA believes that
tethering controls is one way employers can comply with the final rule.
As to the other controls AWEA suggested, OSHA believes that securing
equipment is the most protective option because it removes the hazard
of equipment falling and hurting workers. Putting tools in buckets and
prohibiting employees from working below other workers, as AWEA
suggests, does not prevent equipment from dropping and, in the case of
prohibiting work below the worker, requires ongoing monitoring by the
employer to be effective. Thus, OSHA believes that the final rule
establishes the most protective control, and likely the most efficient
one. Accordingly, OSHA adopts the requirement that employers ensure
that equipment used in RDS work is secure to prevent it from falling
and injuring workers and the public.
Final paragraph (b)(2)(xiii), like proposed paragraph (b)(2)(xi),
requires
[[Page 82583]]
that employers protect RDS ropes from exposure to open flames, hot
work, corrosive chemicals, and other destructive conditions that could
damage or weaken the ropes. This requirement will prevent damage to
ropes that could lead to failure. Failure of a suspension or fall
arrest line could seriously injure or kill a worker.
The performance-based approach in final paragraph (b)(2)(xiii)
gives employers flexibility in determining how to protect RDS ropes
from damage. OSHA believes that this approach is appropriate for the
final rule because there are various controls available to protect RDS
ropes from damage. This approach also is consistent with the I-14.1-
2001 standard, which prohibits the use of hazardous or corrosive
materials that could ``endanger the . . . safety of the worker or may
affect the safe operation of equipment'' (Section 3.5).
A number of commenters supported the provision (Exs. 138; 151; 153;
184; 221; 222; 243), and OSHA did not receive any comments opposing the
provision, and finalizes the provision as proposed.
Section 1910.28--Duty To Have Fall Protection and Falling Object
Protection
Final Sec. 1910.28 is the first of three new sections in subpart D
that consolidate requirements pertinent to fall protection and falling
object protection. The new sections are:
Sec. 1910.28--Duty to have fall protection and falling object
protection;
Sec. 1910.29--Fall protection systems and falling object
protection--criteria and practices; and
Sec. 1910.30--Training.
Final Sec. 1910.28 specifies the areas and operations where
employers must ensure that workers have fall and falling object
protection and what type(s) of protection employers may use. The
criteria for fall and falling object protection that employers use to
comply the duties imposed by Sec. 1910.28, and the training workers
who use those systems must receive are in Sec. Sec. 1910.29 and
1910.30, respectively. OSHA notes that Sec. 1910.140 specifies
criteria for personal fall protection systems that employers must meet
when their workers use these systems.
OSHA believes these sections along with the general requirements in
Sec. 1910.22, taken together, establish a comprehensive approach to
fall and falling object protection. OSHA believes this approach will
ensure a better understanding of the final rule, fall hazards, and fall
protection systems; provide flexibility for employers when choosing a
fall protection system and falling object protection; ensure the
systems they choose will be effective; and most importantly, will
reduce significantly the number of fall injuries and fatalities in
general industry.
Final Sec. 1910.28, like the proposed rule, consolidates most of
the general industry fall and falling object protection requirements
throughout subpart D. OSHA patterned this section after the
construction fall protection standard (29 CFR 1926.501, Duty to have
fall protection). OSHA draws the range of fall protection options in
the final rule, for the most part, from the construction standard.
These options include engineering controls (e.g., guardrails, safety
net systems), personal fall protection systems (e.g., personal fall
arrest systems, travel restraint systems, positioning systems), and
administrative measures (e.g., designated areas). OSHA strived to make
the final rule consistent with the construction standard, when
appropriate. The record shows a number of employers have workers who
perform both general industry and construction activities.
There are several ways in which OSHA made the final rule consistent
with the construction fall protection standard. For example, the final
rule provides for control flexibility. This rule, like the construction
fall protection standard, allows general industry employers, similar to
construction employers, to protect workers from fall hazards by
choosing from a range of accepted conventional fall protection options.
The existing general industry standard does not allow this flexibility
and mandated the use of guardrail systems as the primary fall
protection method (e.g., see existing Sec. 1910.23(c)).
The 1990 proposed revision of subpart D continued to require the
use of guardrail systems. However, in the 2003 notice reopening the
record, OSHA acknowledged that it may not be feasible to use guardrails
in all workplace situations (68 FR 23528, 23533 (5/2/2003)) and
requested comment on whether the Agency should allow employers to use
other fall protection systems instead of guardrails. Commenters
overwhelmingly favored this approach, which the construction fall
protection standard adopted in 1994. In response to comments and OSHA's
history and experience with the construction fall protection standard,
the Agency proposed in 2010 to allow employers to select from a range
of fall protection options instead of requiring employers to comply
with the existing mandate to use guardrail systems.
OSHA is adopting the proposed approach for several reasons. First,
the final rule's control flexibility reflects longstanding OSHA policy
first incorporated in the 1994 construction fall protection standard.
OSHA's history and experience with the construction standard indicates
that its control flexibility approach has been effective. In addition,
stakeholders responding to the proposed rule overwhelmingly supported
this approach and there was little opposition to providing greater
flexibility in controlling fall hazards.
Second, the fall protection systems that the final rule allows
employers to use (guardrail systems, safety net system, personal fall
protection systems) are accepted conventional fall protection systems
that OSHA has determined provide an appropriate and equal level of
safety. Moreover, allowing employers to select the least costly fall
protection system from those controls that provide equal protection
also ensures the final rule meets OSH Act requirements that a standard
be cost effective (Cotton Dust, 452 U.S. at 514 n. 32; Lockout/Tagout
II, 37 F.3d at 668).
Third, OSHA believes giving employers greater control flexibility
in selecting fall protection systems allows them to select the system
or method that they determine will work best in the particular work
operation and location and draw upon their experience successfully
protecting workers from fall hazards. OSHA believes that the process of
determining the best fall protection system for the specific work
activity will improve safety because employers will need to evaluate
the conditions present in each specific workplace and consider factors
such as exposure time, availability of appropriate attachment points,
and feasibility. Similarly, it also will allow employers to consider
and select the fall protection system that enables workers to perform
the job most efficiently, thereby reducing workers' exposure to fall
hazards.
Fourth, providing control flexibility allows general industry
employers to take advantage of advances in fall protection technology
developed since OSHA adopted the existing rule. For example, neither
safety net systems nor personal fall protection systems were developed
until after OSHA adopted the existing rule.
Fifth, greater control flexibility makes the final rule consistent
with the construction fall protection standard, which makes it easier
for employers to comply with the final rule and thereby should increase
compliance. To illustrate, making the final rule consistent with the
construction standard ensures that employers who
[[Page 82584]]
have workers engaged in both general industry and construction
activities are able to use the same fall and falling object protection
while performing both types of activities. It eliminates the need to
purchase different fall protection systems when their workers switch
from performing general industry operations to construction activities,
which ensures that the final rule is a cost-effective approach for
eliminating or reducing fall hazards.
Finally, as mentioned, providing greater control flexibility is
part the final rule's comprehensive approach to fall protection that
also includes new requirements on system criteria and use; regular
inspection, maintenance and repair; and fall hazard and equipment
training. OSHA believes this comprehensive approach will provide
equivalent or greater protection than the existing rule. As a result,
OSHA believes that the additional flexibility and consistency achieved
by this final rule in providing fall protection will reduce worker
deaths and injuries. OSHA's history and experience with the
construction standard confirms that its comprehensive approach to fall
protection has been effective.
As mentioned, stakeholders supported incorporating control
flexibility in the final rule (e.g., Exs. OSHA-S029-2006-0662-0224;
OSHA-S029-2006-0662-0252; OSHA-S029-2006-0662-0306; OSHA-S029-2006-
0662-0365). For example, Northrop Grumman Shipbuilding (NGS) commented:
We applaud the agency's work to recognize modern methods and
technologies that are now available to ensure adequate fall
protection for employees. Our experience is that no single method is
effective in all potential fall situations and that a menu of proven
methods and techniques . . . works best (Ex. 180).
Uniseal, Inc. said:
OSHA should allow employers to responsibly choose any type of
fall protection in proposed Sec. 1910.28 that the employer can
demonstrate will be appropriate for the specific work location and
activities being performed (Ex. OSHA-S029-2006-0662-0345).
Clear Channel Outdoor agreed, saying:
Clear Channel Outdoor and employers in the outdoor advertising
industry should be permitted to choose appropriate fall protection,
depending upon the location and type of structure. (Ex. OSHA-S029-2006-
0662-0308)
The National Grain and Feed Association (NGFA) said:
OSHA should not require guardrails as the primary means of fall
protection but allow employers the flexibility to choose the most
appropriate fall protection system that is appropriate to the
specific work situation and activities being performed.
[E]mployers evaluate each work situation to determine which
option (e.g., guardrails, cages, fall arrest systems, etc.) is the
most appropriate and effective (Ex. OSHA-S029-2006-0662-0223).
Duke Energy said OSHA should allow general industry employers to
``select from the list of options'' like the construction fall
protection standard:
The construction industry standard allows employers to select
fall protection from a list of options. All of the options provide
equivalent protection. Employers should be allowed to use the option
that fits the specific situation. The factors that employers use
when selecting fall protection options include (1) duration of the
job; (2) experience of the workers involved; (3) installation costs;
(4) availability of fall protection at the location. There are times
when the installation of guardrails is technically ``feasible'' but
adds costs that are unnecessary, since other systems (such as a
personal fall arrest system) provide equivalent protection (Ex.
OSHA-S029-2006-0662-0310).
Some stakeholders, however, raised concerns about providing greater
control flexibility. The American Federation of State, County and
Municipal Employees (AFSCME) commented, ``Although we understand the
need for flexibility, we believe employers should use guardrail systems
and other engineering controls whenever possible, as is stated in the
existing standard'' (Ex. 226). Thomas Kramer of LJB, Inc., expressed
concerns that the proposed control flexibility would not be as
protective as the existing rule's requirement to use guardrail systems
to protect workers from fall hazards, stating:
The hierarchy of control is something that is essential in the
area of safety, and OSHA's failure to include something on this . .
. is a significant omission. While there are a number of effective
abatement options in the proposed regulation--and I understand that
many considerations are involved in the cost/benefit analysis for
hazard abatement--I still believe that it is a material oversight to
remove the hierarchy and state that the options outlined provide
``equivalent protection.''
The hierarchy of control clearly compares the effectiveness and
``defeatability'' of a protective system. Employing the hierarchy of
control to evaluate abatement options is fundamental, and
eliminating its application will lead to more use of a harness and
lanyard than ever before. Although this can be an effective way to
protect someone from a fall hazard, personal protective equipment is
definitely not the safest and is not equal to engineering controls
or passive fall protection (Ex. 204).
As discussed above, OSHA believes the comprehensive approach to
fall protection that the final rule, like the construction fall
protection standard, incorporates will provide equivalent or greater
protection than the existing rule. OSHA is only permitting employers to
use those accepted conventional fall protection systems that the Agency
has determined to provide an appropriate and equal level of protection.
The greater flexibility the final rule affords employers will allow
them to select from those fall protection systems that provide equal
protection the option that works best in the specific situation and is
the most cost-effective protective measure capable of reducing or
eliminating fall hazards. Moreover, the comprehensive approach in the
final rule, like the construction fall protection standard, recognizes
that, in some instances, it may not be possible to use guardrail
systems or safety net systems to protect workers from falls. For
example, some commenters said employers may not be able to install
permanent systems such as guardrails when they do not own the building
or structure on which their workers are working. OSHA believes the
final rule addresses the concerns of these commenters without limiting
employer flexibility or compromising worker safety.
OSHA notes that the final rule also limits fall protection choices
in some situations where the Agency determined that guardrail systems
are necessary to protect workers from falling. For example, in final
paragraphs (b)(4) and (5) of this section, OSHA specifically requires
the use of guardrails on dockboards and runways and similar walkways,
respectively.
In addition to control flexibility, there are other ways in which
OSHA made the final rule consistent with the construction fall
protection standard. OSHA increased the consistency between the general
industry and construction fall protection standards by including a
provision similar to the construction standard addressing work on low-
slope roofs (final paragraph (b)(13)). Workers on these walking-working
surfaces perform both construction and general industry activities and
OSHA believes that uniform requirements should apply to both
activities. Final paragraph (b)(13), like the construction fall
protection standard, allows employers to use designated areas instead
of conventional fall protection systems when workers are performing
work that is both infrequent and temporary at least six feet from the
edge of a low-slope roof, while also ensuring that employers protect
workers working closer to the edge using conventional systems (e.g.,
guardrail, personal fall arrest, or travel
[[Page 82585]]
restraint systems). As mentioned, OSHA believes that an important key
to protecting workers is allowing employers the flexibility to select
the fall protection system or method that will work best for their
particular work activities or operations, thereby allowing employers to
consider factors such as exposure time, availability of appropriate
attachment points, and feasibility of compliance.
Consistent with the construction standard, the final rule requires
that employers also must train their workers working in designated
areas in the use of warning lines (see final Sec. Sec. 1910.29(d) and
1910.30(a)).
Finally, OSHA increased the consistency of the general industry
standard with the construction fall protection standard by organizing
this final rule in a format that is similar to the construction
standard. OSHA believes that the reorganized format will increase
employer understanding of, and compliance with, the final rule.
Many commenters supported making the general industry and
construction industry fall protection rules consistent (Exs. 111; 157;
165; 176; 212; 225; 236). For example, American Airlines (AA) supported
making the general industry and construction standards uniform because
they said it is ``nonsensical to have different fall protection
requirements for similar--and sometimes identical--hazards across
construction and general industries'' (Ex. 194).
However, Mr. Kramer, of LJB, Inc., expressed doubts about whether
making the final rule similar to the construction fall protection
standard will produce a significant decrease in fatalities. He claimed
that fatality data in the years following adoption of the construction
fall protection standard showed an increase in fall fatalities. OSHA
does not find his argument convincing. Mr. Kramer does not clearly
identify the source or scope of the data. At one point he suggests the
data are from BLS, and at another point he indicates the data are from
another source. In addition, it is unclear whether the data to which he
refers are for construction or for all private industry fatalities. He
did not provide any of the data itself. In any event, as explained in
more detail in the Analysis of Risk and FEA (Sections II and V), there
are a significant number of fall fatalities in general industry, and
OSHA believes the final rule will be effective in reducing those
numbers.
The final rule also establishes criteria and work practices
addressing personal fall protection systems (Sec. 1910.140). These
criteria include minimum strength and load, locking, and compatibility
requirements for components of personal fall protection systems, such
as lines (vertical lifelines, self-retracting lines, and travel
restraint lines), snaphooks, and anchorages. The work practices include
requiring employers to ensure inspection of personal fall protection
systems before each use, and to ensure that a competent or qualified
person inspects each knot in a lanyard or vertical lifeline. OSHA
believes these criteria and work practices, in conjunction with the
training and retraining requirements in the final rule, provide a
combination of controls and redundancies that will help to ensure that
personal fall protection systems are effective in protecting workers
from falls hazards.
Paragraph (a)--General
Final paragraph (a)(1), like the proposed provision, requires
employers to provide protection for workers exposed to fall and falling
object hazards. It also specifies that, unless stated otherwise, the
protection employers provide must comply with the criteria and work
practices set forth in Sec. 1910.29, Fall protection systems and
falling object protection--criteria and practices. In addition, final
paragraph (a)(1) clarifies that personal fall protection systems must
comply with the criteria and work practices in Sec. 1910.140, Personal
fall protection systems.
Fall hazard identification is particularly important when workers
work in a ``designated area'' or under other work situations where
employers do not provide conventional fall protection systems.
Additionally, when general industry employers contract with other
employers to perform jobs and tasks at the worksite, OSHA also requires
that the host employer and contract employer work together to identify
and address fall hazards. One method of accomplishing this requirement
is to follow the guidance specified by appendix B of 29 CFR part 1910,
subpart I, Non-Mandatory Compliance Guidelines for Hazard Assessment
and Personal Protective Equipment Selection. National consensus
standards provide another resource for identifying and controlling fall
hazards. For example, ANSI/ASSE Z359.2-2007, Minimum Requirements for a
Comprehensive Managed Fall Protection Program, provides procedures for
eliminating and controlling fall hazards (Ex. 29).
OSHA notes that the requirements in proposed paragraph (a)(2),
which address the strength of walking-working surfaces, have been moved
to final Sec. 1910.22(b), which establishes requirements for maximum
intended loads applied to walking-working surfaces. OSHA believes this
change more clearly emphasizes that all walking-working surfaces must
have the strength and structural integrity to support workers safely,
not just those surfaces and work conditions requiring fall protection.
Final paragraph (a)(2) lists seven situations in which the
requirements in Sec. 1910.28 do not apply:
Portable ladders (final paragraph (a)(2)(i));
When the employer is inspecting, investigating, or
assessing workplace conditions or the location at which work is to be
performed prior to the start of work or after all work has been
completed. However, this exception does not apply when fall protection
systems or equipment meeting the requirements of Sec. 1910.29 have
been installed and are available for workers to use. If fall protection
systems are present, workers must use them while conducting pre-work
and post-work inspections, investigations, or assessments of workplace
conditions (final paragraph (a)(2)(ii));
Fall hazards presented by the exposed perimeters of
entertainment stages and the exposed perimeters of rail-station
platforms (final paragraph (a)(2)(iii));
Powered platforms covered by Sec. 1910.66(j) (final
paragraph (a)(2)(iv));
Aerial lifts covered by Sec. 1910.67(c)(2)(v) (final
paragraph (a)(2)(v));
Telecommunications work covered by Sec. 1910.268(n)(7)
and (n)(8) (final paragraph (a)(2)(vi)); and
Electric power generation, transmission, and distribution
work covered by Sec. 1910.269(g)(2)(i) (final paragraph (a)(2)(vii)).
The first two exceptions, specified in final paragraphs (a)(2)(i)
and (ii), are new additions to the final rule. OSHA added language
specifically excepting portable ladders to clarify that employers only
have to provide fall protection on fixed ladders. The National Chimney
Sweep Guild (NCSG) (Exs. 150; 240; 268; 269; 329 (1/18/2011, pgs. 254-
348); 365) pointed out that in the proposed rule OSHA did not exclude
portable ladders from the duty to have fall protection, and expressed
concern that, by default, the rule would cover portable ladders under
the ``catch-all'' provision (final paragraph (b)(15), Walking-working
surfaces not otherwise addressed). The fall protection requirements in
the proposal were to apply only to fixed ladders, not portable ladders.
Therefore, OSHA agrees with NCSG that adding a specific exception
[[Page 82586]]
to the final rule clarifies this requirement.
The final rule also adds an exception when workers are inspecting,
investigating, or assessing (collectively referred to as
``inspecting'') workplace conditions prior to the start of any work or
after completing all work. However, once any work begins, employers
must provide workers performing inspections (inspectors) with, and
ensure that they use, fall protection where required by this section.
Moreover, this exception does not apply when properly installed fall
protection systems or equipment meeting the requirements of Sec.
1910.29 are available for use. The existing rule does not exclude pre-
work or post-work inspections from fall protection requirements. OSHA
drew the exception from the construction fall protection standard
(Sec. 1926.500(a)(1)).
Several commenters urged OSHA to add this exception to the final
rule (Exs. 111; 150; 157; 176; 177; 212; 225; 240; 268; 269; 329 (1/18/
2011, pgs. 254-348); 365). First, some commenters said it was not
necessary for workers conducting pre-work or post-work inspections to
use fall protection. For example, American Insurance Association (AIA)
said the final rule should recognize that certain tasks that workers
(e.g., claims adjustors and loss-control personnel) perform on roofs
have ``lower risks'' because ``these tasks are usually conducted in
good weather and normally expose employees to a fall hazard only for a
short time, if at all'' (Ex. 157). Allstate Insurance Company
(Allstate) agreed, adding that insurance inspectors (and adjustors)
only access roofs infrequently to inspect damage (Ex. 212).
Littler Mendelson, P.C., said, ``Employees who inspect, investigate
or assess workplace conditions and perform no physical work should be
exempt from the requirements of fall protection, provided the employee
has received the training specified in Section 1910.30'' (Ex. 111). AIA
added that all of their workers who perform inspections receive
training in safe roof access, and are well aware of the proximity of
unprotected sides (Ex. 157). Allstate also said that workers performing
inspections are more aware of their location than other workers (Ex.
212).
A number of commenters said OSHA should add an exception because
requiring inspectors to use fall protection would expose them to
greater, and additional, hazards (Exs. 111; 150; 157; 177; 212; 225;
240; 268; 365). For instance, Littler Mendelson said, ``By allowing
such employees to perform their inspection duties without fall
protection, OSHA would avoid the greater fall hazards incurred by
employees who must access elevations carrying the tools and materials
required to install fall protection for the inspectors'' (Ex. 111).
Commenters also said that requiring inspectors to use fall protection
would pose greater hazards because it would expose them to fall hazards
for greater periods of time. Littler Mendelson said requiring
inspectors to use fall protection would expose them to fall hazards for
longer than it takes to perform the inspection (Ex. 111). NCSG agreed,
explaining that it would take longer to get to, install, and remove
anchors than the time it takes to conduct the inspection (Exs. 150;
240; 268; 269; 329 (1/18/2011, pgs. 254-348); 365). NCSG said the vast
majority of their work is chimney cleaning and inspection in which
chimneys are cleaned from the ground and workers only access the roof
for a few minutes to inspect the chimney at the conclusion of the job
to verify the cleaning operation is complete (Ex. 150). NCSG also said
that chimney sweeps perform pre-inspections on roofs to identify
whether repairs or other maintenance work may be needed. The fall
protection exception in final paragraph (a)(2)(ii) would cover both of
these inspections.
Similarly, Roofing Consultants Institute, Inc. (RCI) said that
complying with the proposed rule would require spending increased time
on roofs to anchor and position fall protection systems, therefore
increasing worker exposure to falls (Ex. 225). AIA, Allstate, Confrere
Strategies on behalf of the National Association of Mutual Insurance
Companies (Confrere Strategies), and Farmers Insurance Group of
Companies (Farmers) also voiced the same argument (Exs. 157; 176; 177;
212).
Several commenters complained that requiring inspectors to use fall
protection would be infeasible and ``unduly burdensome'' (Exs. 150;
157; 176; 177; 212; 235). Allstate said the proposed requirement was
infeasible because the insurance company does not own or control the
properties that its adjusters inspect and does not have permission to
install fall protection systems (Ex. 212). AIA indicated that the
proposed requirement was infeasible, and that an exception was
necessary for the insurance industry to continue its work. However, AIA
did not provide any explanation regarding why the proposed requirement
was infeasible (Ex. 157). RCI said the proposed rule was unreasonably
burdensome because it did not provide any discernible benefits (Ex.
225).
Two commenters, Allstate and Farmers, indicated that inconsistency
between the proposed rule and the construction fall protection
standard, and lack of clarity about which standard would apply to
inspectors, would cause confusion and pose an unreasonable burden on
employers (Exs. 157; 176). Specifically, Allstate believed that the
construction exception covered the activities of insurance adjusters,
but was unsure whether inspecting damaged property is subject to the
general industry rule or the construction rule. Farmers pointed out:
Currently, neither the Proposed Rule nor the construction fall
protection requirements make clear whether a claims adjuster's
inspection and assessment of damaged property before and after
construction is considered ``construction work'' covered by 29 CFR
Sec. 1926.500(a) or whether such inspection activities would be
subject to the General Industry Standards under the Proposed Rule
(Ex. 176).
Finally, some commenters said OSHA's rationale for allowing the
exception for the construction industry also should apply to general
industry inspectors (Exs. 157; 177; 212; 225). For example, RCI said,
``[W]ork practices used by RCI members performing site visits . . .
such as [on] roofs would most likely be identical for both general and
the construction industry'' (Ex. 225). Confrere Strategies said:
The 1994 rationale for the insurance and inspection exception
remains today. Subjecting inspectors and adjusters to fall
protection standards would be overly burdensome and infeasible and
would subject employees to fall hazard for greater periods of time.
Incorporation of specific exemption language in Subpart D is
consistent with prior regulations, reflects the realities of
insurance inspection and claims adjustment operations and would
eliminate any potential confusion related to the definition of
``construction activities'' (Ex. 177).
AIA added, ``AIA supports harmonization of the fall protection
requirements in the Construction and General Industry Standards. In
furtherance of that goal, we recommend incorporating into the proposed
rule the exception to fall protection requirements for inspection,
investigation and assessment activities contained in the Construction
Industry Standard'' (Ex. 157).
OSHA recognizes that requiring workers to use fall protection when
conducting inspections prior to, and after completion of, work may not
be feasible in some isolated or limited situations. For example, as
Allstate said, the insurance companies are unlikely to own the
structures the inspectors are
[[Page 82587]]
inspecting, and it may not be possible to obtain permission to install
fall protection equipment, such as anchors (Ex. 212). Therefore, OSHA
added a limited exception to the final rule for pre-work and post-work
inspections activities.
However, as mentioned earlier, unlike the exception in the
construction fall protection standard, final paragraph (a)(2)(ii) does
not apply when fall protection systems or equipment already are
installed on the structure where an inspector will conduct a pre-work
or post-work inspection, that is, when fall protection systems are
installed, workers performing pre-work and post-work inspections, like
all other workers, must use them.
OSHA believes that limiting the application of the exception to
pre-work and post-work is appropriate. The Agency believes that, where
fall protection equipment already is installed, there is no reason why
inspectors should not use it like all other workers working on the same
walking-working surface must. To illustrate, where anchors and self-
retracting lifelines meeting the requirements of Sec. 1910.29 already
are installed on a roof, OSHA believes that attaching a harness should
not increase inspectors' exposure to the fall hazard in any appreciable
way, while taking this action ensures that they can safely conduct the
inspection. When inspectors have to climb fixed ladders equipped with
ladder safety systems or self-retracting lifelines for personal fall
arrest systems to inspect damage or assess maintenance needs, OSHA
believes it is feasible for these workers to attach their harnesses to
the existing equipment without difficulty or increasing exposure time.
OSHA notes that evidence in the record indicates that an increasing
number of buildings and fixed ladders are equipped with anchorages and
ladder safety or personal fall arrest systems, respectively. Unlike
pre-work and post-work inspections in the construction industry, in
general industry, buildings and structures already exist and already
may have fall protection equipment installed. Therefore, OSHA believes
that a number of situations currently exist in which it may be feasible
to use fall protection when conducting pre-work and post-work
inspections, and that these situations are likely to continue
increasing.
The third exception to the requirement to provide fall protection,
specified in final paragraph (a)(2)(iii), applies to fall hazards
presented by exposed perimeters of entertainment stages and rail
station platforms; OSHA carried this exception over from the proposed
rule. The use of guardrails or other fall protection systems could
interfere with performances on stage, or create a greater hazard to the
performers than would otherwise be present. OSHA recognizes that there
may be circumstances when fall protection may be feasible in these
occupational settings, and encourages employers in these settings to
use fall protection when possible, such as during rehearsals. OSHA did
not receive any comments opposing this exception, and adopted it as
proposed.
Paragraphs (a)(2)(iv) through (vii), like the proposed rule,
specify that the final rule does not apply to powered platforms (Sec.
1910.66), aerial lifts (Sec. 1910.67), telecommunications (Sec.
1910.268), or electric power generation, transmission, and distribution
(Sec. 1910.269). Other general industry standards address those
operations and equipment, and include provisions requiring employers to
provide and ensure workers have and use fall protection. OSHA received
one comment on these exceptions. Ameren Corporation agreed that final
Sec. 1910.28 should not apply to work that Sec. 1910.269 covers (Ex.
189). OSHA adopted the proposed exceptions with only minor editorial
changes, for clarity.
Paragraph (b)--Protection From Fall Hazards
Final paragraph (b), like the proposed rule, sets forth the
requirements on the types of fall protection systems that employers
must select and use to protect workers from fall hazards while working
in specific workplace areas, situations, and activities (final
paragraph (b)(1) through (15)). The final rule allows employers to use
any one or more of the fall protection systems listed for the
particular area, situation, or activity, including:
Guardrail systems--barriers erected to prevent workers
from falling to a lower level (final Sec. 1910.21(b));
Safety net systems--passive fall protection systems that
arrest a worker from falling to a lower level when a fall occurs.
Employers must install safety net systems as close as practicable below
the surface where workers are working, and extend the systems beyond
the outermost projection of the workstation;
Personal fall protection systems--a type of conventional
fall protection system that protects a worker from falling, or safely
arrests a worker's fall if one occurs. They include personal fall
arrest, and travel restraint and positioning systems, but not rest
lanyards (final Sec. 1910.140(b));
Personal fall arrest systems--a type of personal fall
protection system used to arrest workers from falling to a lower level
when a fall occurs. These systems consist of an anchorage, connector,
and body harness. A personal fall arrest system also may include a
lanyard, deceleration device, lifeline, or combination of these items
(final Sec. 1910.140(b));
Travel restraint systems--a type of personal fall
protection system used to limit a worker's travel to prevent exposure
to a fall hazard. Travel restraint systems consist of a combination of
an anchorage, connector, lanyard, and body support. Unlike personal
fall arrest systems, travel restraint systems do not support the
worker's weight. Rather, the purpose of these systems is to prevent
workers from reaching the fall hazard, such as an unprotected side or
edge (final Sec. 1910.140(b)).
Ladder safety systems--a system designed to eliminate or
reduce the possibility of falling from a fixed ladder. A ladder safety
system usually consists of a carrier (i.e., a flexible cable or rigid
rail track), a safety sleeve (i.e., a moving component that travels up
and down on the carrier), lanyard, connectors, and body harness (final
Sec. 1910.21(b));
Positioning systems (work-positioning systems)--a type of
personal fall protection system designed to support a worker in a fixed
location, on an elevated vertical surface (e.g., fixed ladders), so the
worker can work with both hands free (final Sec. 1910.140(b));
Handrails--rails used to provide workers a handhold for
support (final Sec. 1910.21(b)); and
Designated areas--a distinct portion of a walking-working
surface delineated by a perimeter warning line in which workers may
perform work in certain situations without using additional fall
protection (final Sec. 1910.21(b)).
OSHA believes each of the fall protection systems listed for a
particular situation are effective and appropriate in those situations.
In this regard, OSHA notes that the final rule only permits employers
to use designated areas on low-slope roofs (final paragraph (b)(13)).
The proposed rule permitted employers to use designated areas for
unprotected sides and edges (proposed paragraph (b)(1)(ii)), wall
openings (proposed paragraph (b)(7)(ii)), and walking-working surfaces
not otherwise addressed (proposed paragraph (b)(13)(ii)).
After reviewing the rulemaking record, as well as OSHA's letters of
[[Page 82588]]
interpretation addressing the use of controlled access zones and
warning line systems under the construction fall protection standard,
OSHA believes that designated areas must be limited to only ``a few,
very specific situations'' (see, e.g., letter to Mr. Keith Harkins (11/
15/2002) \42\). To illustrate, the construction standard only permits
the use of a warning line system for roofing work on low-slope roofs
(Sec. 1926.501(b)(10)), and the use of controlled access zones for
overhand bricklaying and related work (Sec. 1926.501(b)(9)). The
construction standard also allows the use of controlled access zones
for some leading edge work, for precast concrete erection, and in
residential construction, rather than the broad category of unprotected
sides and edges (Sec. 1926.502(k)), and then only when employers can
demonstrate that it is infeasible or creates a greater hazard to use
conventional fall protection equipment.
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\42\ OSHA letter to Mr. Keith Harkins available at: https://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_id=24552.
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Applying the rationale in the construction standard to general
industry, the final rule limits the use of designated areas to work on
low-slope roofs (final paragraph (b)(13)). OSHA believes that the use
of designated areas is appropriate on flat or gently sloping surfaces
or when workers and work are located a safe distance from a fall
hazard, such as a roof edge. However, OSHA does not believe that
designated areas provide adequate protection from fall hazards on steep
or vertical surfaces or for work performed near an unprotected edge or
side, such as narrow walking-working surfaces. (See further discussion
of designated areas in final paragraph (b)(13), below.)
OSHA received several comments on the use of designated areas.
David Hoberg, with DBM Consultants, supported limiting the use of
designated areas because ``it is a huge opening for abuse'' (Ex. 206).
He suggested limiting the use of designated areas to those situations
that existed prior to publication of this final rule, are unique to the
work such that the same work is not done at other locations using
standard methods, and when a certified safety professional or
professional engineer with experience in the work and conditions
approves use of a designated area (Ex. 206). As discussed in more
detail below (final Sec. 1910.28(b)(13)), OSHA is limiting the use of
designated areas to low-slope roofs and to work more than 6 feet from
the edge. Employers may use designated areas for work that is more than
6 feet and less than 15 feet from the edge if it is both infrequent and
temporary. If the work is not temporary or infrequent, the employer may
use a designated area if the work is more than 15 feet from the roof
edge. The Agency believes this clarification addresses Mr. Hoberg's
concerns.
Several commenters objected to the designated area approach because
it was too different from the construction standard's requirements for
residential roofs, and instead asked that OSHA synchronize the general
industry requirements with the construction standard for those roofs
(See, e.g., 124, 149, 150.). OSHA agrees in general, and the final rule
includes a new paragraph (final Sec. 1910.28(b)(1)(ii)) addressing
these concerns. Under this provision, employers may implement a fall
protection plan meeting the requirements of the construction standard
if they can demonstrate that it is not feasible or creates a greater
hazard to use guardrail, safety net, or personal fall protection
systems on a residential roof.
In addition to establishing fall protection options for specific
workplace areas and situations, final paragraph (b) also establishes
the height that triggers the employer's obligation to provide fall
protection. The final rule, like the existing and proposed rules,
generally requires that employers provide fall protection when workers
work at levels that are four feet or more above a lower level. The
final rule, like the proposal, defines ``lower level'' as an area to
which a worker could fall (Sec. 1910.21(b)). The definition also
includes examples of lower levels, including ground levels, floors,
excavations, pits, tanks, materials, water, equipment, and similar
surfaces and structures, or portions thereof.
Employers' duty to provide fall protection when workers can fall
four feet or more to a lower level is not new. As mentioned earlier,
the existing rule, which OSHA adopted in 1971, has a four-foot trigger
height (e.g., existing Sec. 1910.23(b)(1)(i), (b)(2), (b)(3), (c)(1),
(c)(2); Sec. 1910.268(g)). Pursuant to section 6(a) of the OSH Act,
OSHA adopted the 4-foot trigger from ANSI A12.1-1967, Safety
Requirements on Floor and Wall Openings, Railings and Toe Boards. As
far back as 1932, ANSI A12.1 prescribed a 4-foot trigger height. ANSI/
ASSE A1264.1-2007, Safety Requirements for Workplace Floor and Wall
Openings, Stairs and Railing Systems, also requires the use of fall
protection where there is an unprotected side or edge 4 feet or more
above a lower level (Ex. 13). Like ANSI A12.1, the ANSI/ASSE A1264.1
standard has specified the 4-foot fall protection height requirement
since its inception.
Since OSHA adopted the general industry four-foot trigger, the
Agency consistently reinforced the requirement in numerous public
statements and Agency interpretations (e.g., letters to Mr. Paul
Osborne (May 13, 1980); \43\ Mr. Anil Desai (September 14, 1990); \44\
M.O. Brown, Jr. (October 22, 1992) \45\). Moreover, as far back as
1932, the ANSI A12.1 standard included the four-foot trigger. Thus,
OSHA believes the general industry four-foot trigger is a well-
recognized requirement.
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\43\ OSHA letter to Mr. Osborne available at: http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_id=18868.
\44\ OSHA letter to Mr. Desai available at: https://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_id=20086.
\45\ OSHA letter to Mr. Brown available at: https://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_id=20899.
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In 1994, the construction fall protection standard, with some
exceptions, set a six-foot trigger height for construction work (59 FR
40672 (8/19/1994)). In 2003, when OSHA reopened the record for comment
on subpart D, comments received by the Agency indicated that some
stakeholders mistakenly believed that the general industry fall
protection trigger height is the same as the construction fall
protection standard. To address this confusion, OSHA clearly pointed
out in the 2010 proposed rule that the four-foot trigger height for
general industry ``has been standard industry practice for more than 75
years'' (75 FR 28887).
OSHA did not propose to revise the four-foot trigger height, noting
that the existing rule is a long-standing requirement and standard
industry practice. OSHA also said the results of a 1978 University of
Michigan study supported the four-foot fall protection trigger height
(Ex. OSHA-S041-2006-0666-0004). OSHA requested comment on the four-foot
trigger height, including information on any recent studies and
information that ``support or contradict'' the four-foot trigger height
(75 FR 28887).
A number of commenters supported retaining the existing four-foot
trigger height (Exs. 65; 172; 226). In particular, the American
Federation of Labor and Congress of Industrial Organizations (AFL-CIO)
stated, ``The 4-foot rule maintains a long-standing OSHA requirement
and industry practice that we believe is important for protecting
workers against fall hazards to a lower
[[Page 82589]]
level'' (Ex. 172). Martin's Window Cleaning said that ``[s]ince it has
always been OSHA's stand that [potential] falls be limited to less than
4 [feet in general industry], then it is imperative that OSHA include
requirements for . . . lifeline tie backs . . . in locations that would
limit falls to this distance'' (Ex. 65). In addition, they said, ``OSHA
should require that all fall protection systems and suspension systems
limit falls to 4 [feet]'' (Ex. 65).
The American Society of Safety Engineers (ASSE) urged OSHA to
conduct research that would support a single trigger height for fall
protection in general industry and construction, noting:
As OSHA ably recognizes in its discussion [in the proposed
rule], research supports the conclusion to maintain its current 4-
foot trigger height for general industry. In the same discussion,
however, OSHA also recognizes that a 6-foot trigger height is the
standard for construction. Despite the long-established traditions
behind these different trigger heights, we would encourage OSHA to
work with NIOSH to determine if appropriate research can be
conducted that would help lead the occupational safety and health
community to a single trigger height. If a single trigger height
could become widely accepted, ASSE believes there would be
significant gains in understanding the importance of fall
protections and ways to protect employers. Given the continued high
incidence of injuries from heights, it would be prudent to at least
examine whether a single trigger height would be helpful (Ex. 127).
ORC Mercer also supported a single fall protection trigger height
for general industry and construction, although it was ``not arguing
that OSHA should set the trigger for fall protection to six feet for
all general industry work'' (Ex. 254). However, they said OSHA needed
to provide a ``better explanation/justification for the disparity in
the trigger for fall protection in General Industry maintenance work
versus Construction work,'' stating:
The proposed rule retains the historic disparity of a 4-foot
trigger for fall protection in General Industry and a 6-foot trigger
for fall protection in Construction. Although the proposal makes a
number of arguments regarding the history of its adoption of the
four-foot trigger for General Industry work and states that the
four-foot rule has been used in consensus standards for more than 75
years, OSHA has not addressed the difficulties for employers who may
have General Industry maintenance work going on within only a few
feet of activities that meet the definition of Construction work.
The definition of what constitutes construction work versus work
that falls under the General Industry [standard] continues to
confuse employers seeking to set a consistent standard in their
workplaces. Simply telling a construction contractor (who is
performing work at a manufacturing site) that he must protect his
employees whenever they may fall more than four feet above a lower
level (because the host employer wishes that all workers on the site
to adhere to a uniform standard) is likely to be met with resistance
as the construction contractor's employees will have been trained
and equipped to work with the 6-foot trigger. Hence many employers
have simply adopted the six-foot trigger for all non-routine or
maintenance work (Ex. 254).
ORC Mercer added that ``language and guidance for determining the
feasibility of fall protection for work that is done between four and
six feet above the next lower lever is needed in both the final rule
and in any compliance documents that follow the promulgation of this
rule'' (Ex. 254).
Others stakeholders also supported a single trigger height, but
argued that the single height should be six feet instead of four feet
(Exs. 165; 202; 236). The Mechanical Contractors Association of America
(MCAA) said, ``Construction workers performing work at existing
facilities often have to comply with both standards, which creates
confusion, and therefore, opportunity for unintentional noncompliance''
(Ex. 236). MCAA added that making the general industry trigger height
consistent with the construction standard ``would eliminate the
confusion and simplify compliance requirements without compromising
worker safety,'' noting:
This section proposes to keep the previously established four
foot fall protection/prevention rule in place for general industry.
However, employers are often unclear about what OSHA considers to be
maintenance and repair, which falls under the agency's general
industry standards (29 CFR 1910), vs. construction work, which falls
under the construction standards (29 CFR 1926). In addition,
inconsistencies between the two sets of standards often require
employers to comply with both sets of standards for the same
application (Ex. 236).
Mr. Kramer, of LJB, Inc., raised concerns about the availability
and effectiveness of personal fall arrest systems in situations where
the fall hazard is only four feet, stating:
It is clear from the proposed regulation that a personal fall
arrest system can be used in situations where the fall hazard is 4
feet. I acknowledge that it is possible to rig a fall arrest system
to protect a worker from a fall where the allowable fall distance is
4 feet. However, without a direct and in-depth discussion on fall
clearance requirements, the statement by OSHA can be very
misleading. Falls occurring while attached to a horizontal lifeline
can result in total fall distances as large as 15 feet. OSHA risks
having employers simply provide their employees with a harness,
lanyard and anchorage when they are four feet above a lower level.
In this case, the employee is not protected. The stated goal of
reducing fatalities and injuries due to a fall has not been achieved
and it is clear in these circumstances that a personal fall arrest
system does not provide equivalent protection to a guarded platform
(Ex. 204).
However, other commenters said there is personal fall protection
equipment available that can limit falls to four feet. In this regard,
Capital Safety Group (CSG) and the International Safety Equipment
Association (ISEA) said:
ASSE is currently working on a standard for self-retracting
lanyards that includes a class of [self-retracting line] that when
anchored overhead is designed to protect workers in situations where
fall clearance is very limited such as the case when exposed to a 4-
foot fall. OSHA should include a reference to this standard when it
becomes available (Exs. 185; 198).
Comments and testimony submitted in this rulemaking record have not
persuaded OSHA that adopting a fall protection trigger height greater
than four feet would provide equivalent or greater protection than the
current trigger. As mentioned, existing national consensus standards
require that employers provide fall protection where unprotected sides
or edges are more than four feet above a lower level. Section 6(b)(8)
of the OSH Act specifies that OSHA follow the requirements in national
consensus standards unless the Agency can show why a rule that differs
substantially from consensus standard ``will better effectuate the
purposes'' of the OSH Act than the national consensus standard. None of
the stakeholders arguing that OSHA should change its longstanding
general industry four-foot trigger height provided any recent studies,
data, or other information to support changing the trigger height to
six feet. OSHA believes increasing the height at which employers must
provide fall protection may expose workers to additional risk of
injury, reduce worker safety, and decrease the protection afforded to
workers by OSHA's general industry fall protection standards (75 FR
28887).
With regard to comments arguing that different fall protection
trigger heights for general industry and construction would cause
confusion and non-compliance, OSHA's experience and the rulemaking
record do not bear that out. The general industry and construction fall
protection trigger heights have been in place for years. OSHA's
enforcement experience with both standards does not indicate that
employers are confused about or not been able to comply with applicable
fall protection height requirements. In addition, stakeholders did not
submit comments in this
[[Page 82590]]
rulemaking indicating that they currently are experiencing confusion.
Given that, OSHA does not believe that reaffirming the current general
industry four-foot fall protection height trigger will cause confusion
in the future. In any event, OSHA points out that employers will be in
compliance with both the general industry and construction fall
protection standards if they provide fall protection when workers are
working four feet or more above a lower level.
Final paragraph (b), like the proposal, includes the following four
exceptions \46\ from the four-foot trigger height:
---------------------------------------------------------------------------
\46\ For work on scaffolds, the final rule specifies that
employers must protect workers from falls in accordance with the
construction scaffold standards (29 CFR part 1926, subpart L). The
construction scaffold standards (Sec. 1926.451(g)(1)) require that
employers provide fall protection for workers working on a scaffold
more than 10 feet above a lower level.
---------------------------------------------------------------------------
When using motorized equipment on dockboards (final
paragraph (b)(4)(ii));
Over dangerous equipment (final paragraph (b)(6));
Around repair, service, and assembly pits (final paragraph
(b)(8)); and
On fixed ladders (final paragraph (b)(9)).
More specifically, for work performed on dockboards, the final rule
establishes a trigger height of greater than 10 feet for guardrails or
handrails when dockboards are used solely for materials-handling
operations using motorized equipment. For work performed over dangerous
equipment, the final rule, like the proposal, requires that employers
protect workers from falling onto or into dangerous equipment
regardless of the height at which the workers are working above the
dangerous equipment. For work around repair, service, and assembly
pits, the use of fall protection is not required for pits that are less
than 10 feet deep, provided the employer limits access to the edge of
the pit to trained, authorized employees, marks the floor around the
edge of the pit in contrasting colors (or places a warning line at
least 6 feet from the pit edge), and posts readily visible caution
signs around the pit that warn workers of the fall hazard. For fixed
ladders, the final rule adopts the proposed requirement that employers
must provide fall protection when the ladder extends more than 24 feet
above a lower level. (See the detailed discussion of these exceptions
below.)
As mentioned earlier, final paragraph (b) also adds a new provision
for work on low-slope roofs (final paragraph (b)(13)). In addition, the
final rule moves work on platforms used in slaughtering facilities into
a separate provision (final paragraph (b)(14)). The proposed rule
addressed these platforms as part of proposed paragraph (b)(1),
Unprotected sides and edges.
Unprotected sides and edges. Final paragraph (b)(1), like the
proposed rule, establishes fall protection requirements employers must
follow to protect workers from falling off unprotected sides and edges
of walking-working surfaces that are four feet or more above a lower
level. The final rule defines ``unprotected sides and edges'' as any
side or edge of a walking-working surface (except at entrances and
other points of access) where there is no wall, guardrail system, or
stair rail system to protect an employee from falling to a lower level
(final Sec. 1910.21(b)).
Final paragraph (b)(1)(i), similar to the construction fall
protection standard (Sec. 1926.501(b)(1)), specifies that employers
may use one or more of the following fall protection options to protect
workers from fall hazards at unprotected sides and edges:
Guardrail systems (final paragraph (b)(1)(i)(A));
Safety net systems (final paragraph (b)(1)(i)(B));
Personal fall protection systems, such as positioning,
travel restraint, and personal fall arrest systems (final paragraph
(b)(1)(i)(C)).
Final paragraph (b)(1)(i) differs from the proposed rule in two
ways. First, the final rule allows employers to use positioning
systems, in addition to using personal fall arrest and travel restraint
systems. Neither the proposed rule nor the construction fall protection
rule (Sec. 1926.501(b)(1)) included positioning systems in the list of
personal fall protection systems that employers may use. However, OSHA
believes positioning systems are effective to protect workers from
falling when they are working in a fixed location above a lower level.
OSHA notes that some employers equip their workers with both systems,
especially when the workers climb and work on fixed ladders. That is,
employers provide personal fall arrest systems to protect workers
during climbing and positioning systems to protect workers when they
work while standing on the ladder.
Second, as discussed, final paragraph (b)(1)(i) eliminates the use
of ``designated areas'' to protect workers from fall hazards on any
unprotected side or edge, which proposed paragraph (b)(1)(ii) would
have allowed. As discussed, the use of designated areas is intended for
a very few specific and limited situations rather than all unprotected
sides or edges.
General industry work on residential roofs. In final paragraph
(b)(1)(ii), which was not in the proposed rule, OSHA adds a provision
from the construction fall protection standard (Sec. 1926.501(b)(13))
that applies to construction on residential roofs. Final paragraph
(b)(1)(ii) specifies that when employers can demonstrate it is
infeasible or creates a greater hazard to use any type of conventional
fall protection system (i.e., guardrail, safety net, or personal fall
protection system) when working on a residential roof they must take
specific alternative measures to eliminate or reduce fall hazards.
Specifically, employers must develop and implement a written ``fall
protection plan,'' including other control measures, and training that
meet the requirements in the construction standard (29 CFR 1926.502(k)
and Sec. 1926.503(a) and (c); STD 03-11-002 Compliance Guidance for
Residential Construction (6/6/2011)).
At the outset, and discussed in detail below, OSHA notes that many
stakeholders, including NCSG, urged OSHA to add the construction fall
protection plan requirements to the final rule (Exs. 149; 150; 240).
These stakeholders, many of whom perform both general industry and
construction activities, said making the final rule consistent with the
construction standard would make it easier for them to protect workers
performing both types of activities. In addition, stakeholders
indicated the specific requirements of the fall protection plans give
employers a clear blueprint for protecting their workers and achieving
compliance when conventional fall protection is infeasible or creates a
greater hazard.
OSHA limits final paragraph (b)(1)(ii) to work employers perform on
``residential roofs.'' OSHA's definition of ``residential roof''
incorporates the principles established in its Compliance Guidance for
Residential Construction (STD 03-11-002 (6/6/2011)):
The Agency's interpretation of ``residential construction'' for
purposes of 1926.501(b)(13) combines two elements--both of which
must be satisfied for a project to fall under that provision: (1)
the end-use of the structure being built must be as a home, i.e., a
dwelling; and (2) the structure being built must be constructed
using traditional wood frame construction materials and methods
(although the limited use of structural steel in a predominantly
wood-framed home, such as a steel I-beam to help support wood
framing, does not disqualify a structure from being considered
residential construction). . . .
[[Page 82591]]
Recently it has become more common to use metal studs for
framing in residential construction rather than wood. . . . OSHA
will consider it within the bounds of ``traditional wood frame
construction materials and methods'' to use cold-formed sheet metal
studs in framing.
And finally, OSHA is aware that many homes and townhouses,
especially in the southern and southwestern regions of the country,
have usually been built using traditional wood frame construction
throughout the structure except for the exterior walls, which are
often built with masonry brick or block. . . . Because the same fall
protection methods are likely to be used in the construction of
homes built with wood framed and masonry brick or block exterior
walls, the Agency has decided that it is consistent with the
original purpose of 1926.501(b)(13) to treat the construction of
residences with masonry brick or block in the exterior walls as
residential construction.
In accord with the discussion above, and for purposes of the
interpretation of ``residential construction'' adopted herein,
``traditional wood frame construction materials and methods'' will
be characterized by:
Framing materials: Wood (or equivalent cold-formed sheet metal
stud) framing, not steel or concrete; wooden floor joists and roof
structures.
Exterior wall structure: Wood (or equivalent cold-formed sheet
metal stud) framing or masonry brick or block.
Methods: Traditional wood frame construction techniques.
Consistent with the construction standard, final paragraph
(b)(1)(ii) does not apply to nursing homes, hotels, and similar
facilities, even though they are homes or dwellings. As OSHA explained
in Compliance Guidance for Residential Construction:
Construction of nursing homes, hotels, and similar facilities
typically involves the use of the following materials in the
framework of the structure: precast concrete, steel I-beams (beyond
the limited use of steel I-beams in conjunction with wood framing,
described above), rebar, and/or poured concrete. These materials are
not used in traditional wood frame construction, and buildings
constructed using these materials will not be considered
``residential construction'' for purposes of Sec. 1926.501(b)(13)
(STD 03-11-002 (6/6/2011).
OSHA does not intend for final paragraph (b)(1)(ii) to apply to
low-slope residential roofs. Employers performing work on low-slope
residential roofs must comply with final Sec. 1910.28(b)(13), which
requires the use of conventional fall protection in certain locations
(within 6 feet of the roof edge) and allows employers to use designated
areas further from the roof edge. OSHA does not believe these
residential roofs pose the same types of hazards and potential
feasibility issues as work performed on residential roofs that have a
greater slope. OSHA notes that final paragraph (b)(1)(ii) applies to
the vast majority of residential roofs because they do not meet the
final rule's definition of low-slope roof: ``a roof having a slope less
than or equal to 4 in 12 (vertical to horizontal)'' (Sec. 1910.21(b)).
As mentioned, final paragraph (b)(1)(ii), like the construction
standard, requires that employers use a fall protection plan but only
where they demonstrate that all of the fall protection systems
specified in final paragraph (b)(1)(i) are infeasible or present a
greater hazard in a specific location on a residential roof. The final
rule adopts the definition of ``infeasible'' in the construction fall
protection standard, which states that ``infeasible'' means that it is
impossible to perform the construction work using a conventional fall
protection system (i.e., guardrails, safety net system, or personal
fall arrest system) or that it is technologically impossible to use any
one of those systems to provide fall protection (Sec. 1926.500(b)).
To establish that an OSHA standard creates a greater hazard, an
employer must prove, among other things, that the hazards of complying
with the standard are greater than those of not complying, and no
alternative means of employee protection are available (Bancker
Construction Corp., v. Reich, 31 F.2d 32, 34 (2d Cir. 1994); Dole v.
Williams Enterprises, Inc., 876 F.2d 186, 188 (D.C. Cir. 1989)). It is
not enough for the employer to show that complying with a standard will
create a new hazard. The Occupational Safety and Health Review
Commission (the Commission) has held that the employer must establish
that complying with a standard would be more dangerous than allowing
employees to work without compliance (Secretary of Labor v. Spancrete
Northeast, Inc., 16 O.S.H. Cas. (BNA) 1616, aff. 40 F.3d 1237 (2d Cir.
1994)) (See further discussion of greater hazard vis-[agrave]-vis
rolling stock and motor vehicles in the explanation of final Sec.
1910.21). OSHA notes that employers must document in the fall
protection plan the reasons for their determination of infeasibility or
greater hazard (Sec. 1926.502(k)(5)).
Final paragraph (b)(1)(ii), like the construction standard,
includes a note specifying there is a presumption that using at least
one of the fall protection systems final paragraph (b)(1)(i) specifies
is feasible and will not create a greater hazard. The record includes
information and examples of conventional fall protection controls that
employers currently are using or are available for work on residential
roofs (Exs. 150; 240; 347). For example, the NCSG acknowledged there
are personal fall protection anchorages available that work on
residential roofs (Ex. 150). Some of these systems have been available
and in use since OSHA issued the construction fall protection standard
in 1994 (59 FR 40694-95). Based on the rulemaking record, OSHA believes
there is substantial evidence that employers can protect workers from
falling with conventional fall protection systems in virtually all work
operations performed on residential roofs. For example, NCSG indicates
that it is feasible to use conventional fall protection in substantial
and major installation and repair jobs. Thus, OSHA believes it is
appropriate to include the note to underscore that employers have the
burden to prove in the particular roof operation all of the controls in
final paragraph (b)(1)(i) are infeasible or pose a greater hazard.\47\
If those criteria are satisfied, employers must implement:
---------------------------------------------------------------------------
\47\ Employer claims that standards are infeasible or create a
greater hazard are affirmative defenses that employers have the
burden of proving in citation cases (OSHA Field Operation Manual,
Chapter 5, Section VI).
---------------------------------------------------------------------------
A written fall protection plan that meets the requirements
of Sec. 1926.502(k), including implementing other control measures
(Sec. 1926.502(k)(6) and (8)); and
Training that meets the requirements of Sec. 1926.503(a)
and (c).
Section 1926.502(k) specifies that the employer's fall protection
plan must:
Be prepared by and have any changes approved by a
``qualified'' person (Sec. 1926.502(k)(1) and (2)). The final rule
defines qualified as a person who, by possession of a recognized
degree, certificate, or professional standing, or who, by extensive
knowledge, training, and experience has successfully demonstrated the
ability to solve or resolve problems relating to the subject matter,
the work, or the product (final Sec. 1910.21(b));
Be developed specifically for the site where the employer
will perform work on residential roofs (Sec. 1926.502(k)(1));
Be maintained up to date (Sec. 1926.502(k)(1)), which
OSHA said in the construction fall protection standard ``provides clear
notice to employers that they have an ongoing responsibility'' to
monitor conditions and address any changes or deficiencies (59 FR
40718);
Be maintained at the job site (Sec. 1926.502(k)(1) and
(3)), which gives workers the opportunity to inspect the fall
protection plan and provides them with needed reassurance that the
employer is taking appropriate measures to reduce or eliminate exposure
to fall hazards when conventional fall
[[Page 82592]]
protection cannot be used (59 FR 40719);
Be implemented under the supervision of a ``competent
person'' (Sec. 1926.502(k)(4)). The construction standard defines
competent person as a person who is capable of identifying existing and
predictable hazards in the surrounding or working conditions which are
unsanitary, hazardous, or dangerous to employees, and who has
authorization to take prompt corrective measures to eliminate them
(Sec. 1926.32(f));
Identify each location where conventional fall protection
cannot be used and document the reasons why the use of conventional
fall protection systems is infeasible or would create a greater hazard
(Sec. 1926.502(k)(5) and (7)).\48\ OSHA explained in the preamble to
the construction fall protection standard that requiring employers to
make a close examination helps to ensure their decision is justified
and has an objective basis (59 FR 40719). A closer examination also
ensures that employers have not overlooked locations or operations
where conventional fall protection can be used (59 FR 40719);
---------------------------------------------------------------------------
\48\ OSHA notes that the construction fall protection standard
requires employers to classify each location in which conventional
fall protection cannot be used as a ``controlled access zone'' and
follow the requirements for controlled access zones in Sec.
1926.502(g) (Sec. 1926.502(k)(7)). Unlike the construction fall
protection standard, the general industry final rule does not permit
the use of controlled access zones. Therefore, the final rule does
not require employers to comply with the controlled access zones
requirements in Sec. 1926.502(k)(7), such as erecting a flagged
control line around the entire length of the unprotected edge, in
locations where the employer has demonstrated that conventional fall
protection cannot be used.
---------------------------------------------------------------------------
Discuss other measures that the employer will take to
eliminate or reduce the fall hazard for workers where conventional fall
protection is infeasible or creates a greater hazard (Sec.
1926.502(k)(6));
Implement control measures to reduce or eliminate hazards
or implement a safety monitoring system that complies with Sec.
1926.502(h) (Sec. 1926.502(k)(8));
State the name or other method of identification for each
worker who works in a location where a fall protection plan is
implemented (Sec. 1926.502(k)(9)); and
Investigate the circumstances of any fall or other serious
incident that occurs to determine whether the employer needs to change
the fall protection plan and implement those changes (Sec.
1926.502(k)(10)).
In the preamble to the construction fall protection standard, OSHA
said the fall protection plan requirements gives employers a ``clear
direction'' about what they must do and how they must proceed if
conventional fall protection cannot be used (59 FR 40718). Requiring
employers to comply with all of the requirements of the fall protection
plan, including implementing other control measures, reflects the
Agency's position that any deviation from the general requirements for
fall protection must be construed as narrowly as possible'' (59 FR
40720). OSHA believes that requiring employers to strictly comply with
all of the requirements in Sec. 1926.502(k) when conventional fall
protection is not feasible or creates a greater hazard ``will provide
the best opportunity to avert employee injury and death'' (59 FR
40718).
The construction fall protection standard requires that employers
develop and implement a fall protection plan for the specific site
where they are performing work on a residential roof (Sec.
1926.502(k)(1)). OSHA notes that a fall protection plan an employer
develops for repetitive use for a particular style or model of a
residential structure will be considered site-specific for other sites,
but only if the plan ``fully addresses all issues related to fall
protection at that particular site'' (STD 02-11-002). For example,
chimney sweep companies may use a fall protection plan they develop for
a particular type of residential roof (e.g., tile, metal) for other
roofs of that type rather than developing a new plan for each
residence. Additionally, where a roof is similar to others for which
the employer has a fall protection plan, the employer may modify an
existing plan instead of developing a new one. However, where the roofs
are not the same type or involve different specifications or working
conditions, employers must develop and implement a fall protection plan
that is specific to the site.
OSHA stresses that after employers have identified where and why
conventional fall protection cannot be used (Sec. 1926.502(k)(5)), it
will not be acceptable for employers' fall protection plans to simply
state that they will not be implementing any measures to reduce or
eliminate the fall hazard in those locations. Employers must implement
other measures to reduce or eliminate fall hazards for workers in those
locations (Sec. 1926.502(k)(6)). The construction fall protection
standard identifies a number of measures employers can use to reduce
fall hazards when conventional fall protection cannot be used, such as
scaffolds, ladders, bucket trucks, and vehicle mounted platforms (Sec.
1926.502(k)(6)). To reduce the risk of falls in ``ladder to roof
transitions,'' which NCSG said was ``one of the highest hazards,''
employers can use equipment (e.g., quivers, backpacks, rope pull) to
lift materials and tools instead of carrying them up on ladders. Other
measures include safe work practices (e.g., workers positioning
themselves so their backs are not to the fall hazard, not working in
adverse weather), safety screens (59 FR 40720), scaffold platforms (Ex.
150), and fall hazard training specific to residential roofs.
Stakeholders who recommended adding the fall protection plan
provision to the final rule, indicate that they are using the measures
identified above (Exs. 150; 342). NCSG, for example, said they use
scaffolds and bucket trucks for some chimney sweep operations,
particularly significant and major repairs and installations that may
takes days to a week to complete (Ex. 329 (1/18/2011), pgs. 268-69,
278-80). Chimney sweep companies also work from ladders where possible
because, according to NCSG, doing so reduces the fall hazards
associated with transitioning from the ladder to the roof (Ex. 150).
Where no other measures can be implemented, the construction fall
protection standard requires that employers implement a safety
monitoring system that complies with Sec. 1926.502(h). In the preamble
to the construction fall protection standard, OSHA indicated that using
safety monitoring system is a last resort ``when no other, more
protective measures can be implemented'' (59 FR 40719-20 (``OSHA has
determined that the employer must do what it can to minimize exposure
to fall hazards before turning to the use of safety monitoring
systems'')).
Section 1926.502(h)(1) requires that safety monitoring systems must
designate a competent person to be the safety monitor for employees
working in areas where no other fall protection measures are used.
Section 1926.502(h)(1) also specifies, among other things, that safety
monitors must be on the same walking-working surface be within visual
sight of workers, close enough to orally communicate with the workers
they are monitoring, and not have any other responsibilities that could
take their attention away from the workers they are monitoring. In
addition, safety monitors must warn workers when it appears that the
workers are not aware of fall hazard or are acting in an unsafe manner.
OSHA believes that many employers will not use safety monitoring
systems as alternate control measures because
[[Page 82593]]
they assign one-worker jobs and a safety monitoring system requires at
least two workers at each work location. NCSG said, for instance, that
one-person jobs constitute the majority of their work (Ex. 150).
In addition to implementing other measures to eliminate or reduce
worker exposure to fall hazards, final paragraph (b)(1)(ii) also
requires that employers using fall protection plans must develop and
implement a training program and retraining for each employee who works
in a location where conventional fall protection cannot be used. The
training must meet the requirements in Sec. 1926.503(a) and (c).
Section 1926.503(a) requires that employers ensure, among other things,
their fall protection plan training program ``enables each employee to
recognize the hazards of falling and . . . train each employee in the
procedures to be followed in order to minimize the hazards'' (Sec.
1926.503(a)(1)). The retraining requirements in Sec. 1926.503(c) are
essentially the same at those in final Sec. 1910.30(c).
As stated above, OSHA believes, based on the rulemaking record and
the Agency's experience with the construction fall protection standard,
that in most, if not virtually all, jobs performed on residential roofs
employers can protect workers from falls by using conventional fall
protection systems (i.e., guardrail systems, safety net systems,
personal fall protection systems). That said, OSHA has decided to add
paragraph (b)(1)(ii) to the final rule for two reasons: (1) To make the
final rule consistent with the construction fall protection standard,
which is one of the stated goals of this rulemaking, and (2) to address
stakeholder concerns about the feasibility of conventional fall
protection in certain residential roof operations.
Allowing employers who perform both general industry and
construction activities to follow the same standard makes it easier and
more efficient for employers to safely perform both types of
activities, and thereby, facilitates compliance and reduces potential
for confusion about which standards apply to a particular operation.
Throughout this rulemaking, stakeholders have repeatedly urged OSHA
to harmonize the general industry and construction fall protection
standards, particularly with respect to the fall protection plan
requirements in the construction standard (Exs. 124; 149; 150; 240; 329
(1/18/2011, p. 279); 342; 365). For example, SBA Office of Advocacy
said small business representatives (SERs) who attended a roundtable
discussion on the proposed rule, recommended that ``OSHA should further
synchronize the proposed general industry rule with the existing
construction standard'' (Ex. 124). According to SBA Office of Advocacy,
SERs expressed concern that ``[t]wo employees could be working side by
side on similar tasks, but one could be covered by the general industry
standard and the other by the construction standard'' (Ex. 124). SBA
Office of Advocacy added that SERs were confused about ``the difference
between maintenance and repair (general industry) and construction
activities'' and ``which standards applied under what circumstances''
(Ex. 124). To illustrate, NCSG said it can be difficult to figure out
whether certain chimney sweeps operations (e.g., replacing chimney
caps, repairing roof flashing) are maintenance (general industry) or
construction activities. OSHA believes that making the general industry
and construction fall protection standards consistent resolves those
concerns.
OSHA notes the construction fall protection plan requirements have
been in place since 1994, therefore, general industry employers who
perform construction activities (e.g., chimney sweep companies) have
significant experience developing and implementing fall protection
plans, other control measures, and training in jobs where conventional
fall protection cannot be used. OSHA has not received any reports that
these employers have experienced difficulty complying with the fall
protection plans requirements in the construction standard. Rather,
these stakeholders repeatedly urged OSHA to allow them to implement
fall protection plans when they satisfy the criteria in final paragraph
(b)(1)(ii) regardless of whether the activity is general industry or
construction.
OSHA also is adopting final paragraph (b)(1)(ii) to address the
concerns stakeholders raised (e.g., Exs. 149; 150; 240). NCSG, for
instance, commented that using conventional fall protection systems on
residential roofs is ``technologically and/or economically infeasible''
``for the great majority of tasks performed by [chimney] sweeps'' and
``threatens both the continuing viability of the industry and the
availability of chimney inspection, sweeping, and repair services at
affordable prices'' (Ex. 150).
NCSG and the National Association of Home Builders (NAHB) both
argued that it is not possible to use conventional fall protection
systems on residential roofs because there are not suitable attachment
or anchorage points and it is not possible to install them (Exs. 149;
150; 342). For instance, NAHB said it is not possible to penetrate tile
or metal roofs to secure an anchor (Ex. 149). In addition, NAHB and
NCSG said homeowners would not permit contractors to nail anchorages
into the roof or install guardrails because of concern that such
installation would cause damage.
OSHA notes that NCSG's own materials suggest some flexibility in
the use of nails in particular. In their ``successful chimney sweep
training'' booklet, NCSG recommends securing ladders by ``driv[ing] a
nail into the roof and secur[ing] the ladder with rope. If you choose
this method, remember to remove the nail and to seal the hole before
leaving the rooftop'' (Ex. 342). NCSG offers no explanation as to why
homeowners would allow ladders to be secured to the roof with nails but
not roof anchorages. In addition, CSG and ISEA said temporary roof
anchors can be mounted to common roof structural materials by clamps or
screws, which would not damage the roof (Exs. 185; 198).
OSHA recognizes that, where homeowners will not allow employers to
install temporary or permanent anchors or other fall protection (e.g.,
guardrails) and all other conventional fall protection systems are
infeasible, implementing a fall protection plan, other measures to
eliminate or reduce fall hazards, and training ``will provide the best
opportunity to avert employee injury and death'' (59 FR 40718). That
said, OSHA notes that attaching personal fall protection systems to a
roof anchorage may not be the only available method of anchoring those
systems. However, to the extent other types of anchors or attachment
devices are or become available, employers would have to demonstrate
that those devices are infeasible in order to satisfy the criteria in
final paragraph (b)(1)(ii).
As mentioned, stakeholders, including NCSG, have argued they should
be allowed to use fall protection plans and other control measures
where they demonstrate conventional fall protection would create a
greater hazard. NCSG said requiring the use of conventional fall
protection would result in extended exposure to fall hazards, and
thereby create a greater hazard, because it may take longer to install
and remove fall protection (e.g., roof anchors for personal fall
protection) than to perform the work. NCSG said chimney cleaning and
inspection involves accessing the roof for only 5 to 20 minutes and
minor repairs (e.g., replacing a chimney cap, minor flashing repair)
typically requires the chimney
[[Page 82594]]
sweep to work on the roof for 20 minutes to 2 hours (Ex. 150). By
contrast, they said installing anchors would take 45 to 90 minutes (Ex.
150). However, Tom Wolner, of CSG, said that employers can install
temporary nail-on roof anchors in ``probably less than 10 minutes''
(Ex. 329 (1/18/2011, p. 107)).
Stakeholders also said requiring the use of conventional fall
protection in residential rooftop operations would create a greater
hazard because workers would have to carry extra equipment to the roof,
which they said would ``increase the number of ground to roof trips''
(Ex. 150). NCSG pointed out that chimney cleaning and inspection
typically is done in one climb; however, they also acknowledged that
fall protection can be brought to the roof during the initial climb and
even minor repairs and installations can involve multiple climbs (Ex.
150). As the examples above illustrate, rooftop work varies widely in
the duration and climbs. Employers will have to demonstrate that using
conventional fall protection in the specific operation makes it more
dangerous for workers than working without that protection.
Some commenters opposed allowing any exemptions from using
conventional fall protection systems (Exs. 185; 198; 329 (1/18/2001),
pgs. 82-83, 107). For example, Tom Wolner, of CSG, said:
Certain segments within general industry have requested that
OSHA provide broad exemptions from proposed fall protection
regulations, by citing things such as hardships that the use of fall
protection would create, safe work histories or feasibility
concerns. Capital Safety is opposed to granting such general
exemptions within the regulation. It is our opinion that it is
feasible and practical to provide workers with active or passive
means of fall protection in nearly every work situation. A variety
of all fall protection equipment available today, combined with our
ability and the ability of others like us within the fall protection
industry to customize or tailor fall protection equipment to
specific needs often eliminates the need for exemptions (Ex. 329 (1/
18/2011, pgs. 82-83)).
OSHA agrees with Mr. Wolner that it is feasible for employers to
provide workers with conventional fall protection systems in ``nearly
every work situation.'' However, OSHA does not agree with Mr. Wolner
that final paragraph (b)(1)(ii) is an overly broad exemption or
unprecedented. In enforcement action, employers always are permitted to
raise affirmative defenses, such as a claim that the required controls
are not feasible or pose a greater hazard.
Final paragraph (b)(1)(iii), similar to proposed paragraph
(b)(1)(vi), excepts employers from providing the fall protection
specified in final paragraph (b)(1)(i) when employers can demonstrate
that it is not feasible for workers to use fall protection on the
working side of platforms used at loading racks, loading docks, and
teeming platforms. The ``working side'' is the side of the platform
where workers are in the process of performing a work operation. The
final rule, similar to the proposed rule, specifies that the working
side exception to providing fall protection only applies when the
employer demonstrates infeasibility and:
The work operation for which fall protection is infeasible
is in process (final paragraph (b)(1)(iii)(A));
The employer limits access to the platform to
``authorized'' workers (final paragraph (b)(1)(iii)(B)), which the
final rule defines as a worker who the employer assigns to perform a
specific type of duty, or allows to be in a specific location or area
(final Sec. 1910.21(b)); and
The employer trains authorized workers in accordance with
final Sec. 1910.30 (final paragraph (b)(1)(iii)(C)). Section 1910.30
requires, among other things, that employers train workers, including
authorized workers, to recognize fall hazards and the procedures to
follow to minimize them.
OSHA notes that, in limited cases, it may not be possible for
workers to perform work operations if fall protection, such as
guardrails, interferes with access to the work operation. However, as
the final rule specifies, the issue of blocking access to the work
operation is a concern only when workers are in the process of
performing the work operation. As a result, fall protection, such as
guardrails, must be in place or used when workers are not performing a
work operation on the working side of a platform. OSHA believes that
fall protection does not interfere with performing tasks such as
maintenance, cleaning, and similar tasks; therefore, when workers are
performing these tasks, employers must provide fall protection.
Final paragraph (b)(1)(iii) differs from the proposal in two
respects. First, the final rule deletes the proposed exception for the
``working side'' of slaughtering facility platforms (proposed paragraph
(b)(1)(iv)). Based on evidence in the record, OSHA decided to regulate
those platforms separately in final paragraph (b)(14).
Second, the exception in the final rule only applies when the
employer demonstrates that no fall protection system is feasible. The
proposed rule applied the exception when the employer demonstrates
guardrail systems are not feasible (proposed paragraph (b)(1)(vi)).
Therefore, to the extent fall protection systems other than guardrails
are feasible, such as travel restraint or personal fall arrest systems,
the employer would have to provide those systems and the exception
would not apply.
Stacked materials. In the proposed rule, OSHA raised an issue about
whether there is a need to promulgate specific requirements to address
the use of fall protection when employees work and climb four feet or
more above a lower level on stacked materials, such as stacks of steel
and precast concrete products that are being stored or loaded onto
motor vehicles and rail cars for transport (75 FR 28868). OSHA noted in
the proposed rule that the Agency uses Sec. 1910.23, Sec. 1910.132
and the general duty clause (29 U.S.C. 654(a)(1)) to protect workers
who climb and stand on stacked materials from falling (75 FR 28868).
By 2004, the American Iron and Steel Institute (AISI) and Precast/
Prestressed Concrete Institute (PCI) had raised the issue of fall
protection on stacked materials (75 FR 28868; Exs. 5; 41). In general,
they both said using fall protection, such as ``guardrails or tie-off
protection,'' on stacked materials was infeasible or creates a greater
hazard (75 FR 28868). AISI said workers at steel and steel product
companies ``need to stand on `stacks' of product that have a large
surface area in order to rig bundles for crane lifts and similar
activities'' or ``[load] products onto truck trailers and railcars''
(Ex. 5, AISI's comments on the Office of Management and Budget ``Draft
Report to Congress on the Costs and Benefits of Federal Regulations'').
They characterized the solutions OSHA recommended to protect those
workers (i.e., guardrails around stacked materials, magnet cranes, and
safety lines around vehicle trailers and rail cars) as ``not feasible''
and ones that could ``create its own serious safety hazard.'' For
example, AISI said safety lines would interfere with movement of the
product and magnet cranes cannot connect to single bundles.
PCI, in a January 3, 2000, letter requesting an exception from
existing fall protection requirements for loading/unloading precast
concrete products on motor vehicles and for stacking, storing, and
loading/unloading precast concrete products in the plant, said workers
need to access the top of concrete products for only ``very short
periods of time'' to connect/disconnect lifting devices or rigging (Ex.
41). They said installing a fall protection system, by contrast, would
expose employees to fall hazards for ``an extended period of time''
and,
[[Page 82595]]
therefore, poses a greater hazard (Ex. 41). PCI also pointed out that
the OSHA construction fall protection standard does not require that
workers use fall protection when unloading precast concrete at
construction sites (Ex. 41).\49\
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\49\ OSHA notes that the definition of ``walking-working
surface'' in the construction fall protection standard does not
include rolling stock and motor vehicles (29 CFR 1926.500(b)).
---------------------------------------------------------------------------
AISI and PCI recommended that OSHA allow employers to use
alternative measures, such as safe work practices and training,
including a ``mentor system hands-on process for training'' (Exs. 5;
41). AISI said OSHA should require guardrails or tie-off protection
only ``where practical'' and be permitted to use an ``alternative
practice'' and provide training where it is not (Ex. 5). However, AISI
did not identify any alternative practices that would provide adequate
protection for employees working on stacked materials. PCI said
employers should be allowed to provide ``individual instruction as well
as have a mentor system hands on training process'' instead using fall
protection systems on stacked materials (Ex. 41). PCI also recommended
that employees perform ``corrective and detail work'' at the ground
level or from a ladder or mobile-elevating work platform instead of on
the stacked materials.
OSHA received a number of comments in response to the proposed
rule, most of which supported requiring the use of fall protection on
stacked materials (Exs. 127; 155; 161; 185; 198; 205; 238). For
example, ASSE stated:
ASSE cannot agree with ``some commentators (who) have
recommended that OSHA allow the use of safe work practices by
trained employees in lieu of conventional fall protection for
certain activities,'' . . . . If employers are going to ask
employees to climb on stacked materials where there are fall hazards
and, typically, exposure to falls off the sides to lower levels,
employers have the duty to warn, train and protect workers from
falls. In our members' experience, this is not infeasible or
unreasonable to ask (Ex. 127).
The Society of Professional Rope Access Technicians (SPRAT) said
``the prevalence of incidents that have occurred in these situations''
warrants a requirement to use ``fall protection of some sort'' on
stacked materials (Ex. 205). SPRAT recommended allowing employers to
use industrial rope access systems (IRAS) to protect employees because
they said it would mitigate any difficulty or impossibility of using
``measures previously recognized by OSHA as being `conventional' ''
(Ex. 205). SPRAT further recommended:
[I]f OSHA's language toward protection against falls were less
method-specific and more results-oriented, competent and qualified
persons would have greater latitude in creating protective systems
that would be very protective without having to use a proscribed
method. OSHA would be well-advised to permit use of such systems so
long as they are approved by a Qualified Person, created by a
Competent Person, and appropriate training [is] provided to the
Authorized Person (Ex. 205).
OSHA did not propose to cover IRAS and the final rule clarifies
that IRAS are not rope descent systems (Sec. 1910.21(b)). Given that,
OSHA is not adopting SPRAT's recommendations.
Several commenters said fall protection systems to protect
employees working on stacked materials are feasible and currently in
use in general industry (Exs. 155; 185; 198). For instance, ISEA and
CSG said fall protection manufacturers have developed and are supplying
employers with such systems, including ``trailer-mounted systems, A-
frames, rope grab systems, and ropes at tie-off points'' (Exs. 185;
198). They added that manufacturers also create custom fall protection
systems (Exs. 185; 198). Ellis Fall Safety Solutions (Ellis) said that
temporary and permanent wheeled and fork[hyphen]lifted devices with
railed personal fall protection anchorages are available for loading/
unloading operations and should be required for stacked materials (Ex.
155; see also 148; 158; 198; 355-2). Ellis also pointed out that these
systems can provide fall protection over a large surface area (i.e.,
``up to 30 ft.'') (Ex. 155).
PCI and the International Sign Association (ISA), in response to
the proposed rule, submitted comments opposing any requirement for fall
protection on stacked materials (Exs. 161; 238). PCI said in the 14
years since their request for an exception from the existing fall
protection requirements they had ``not learned of any system or
device'' that would change their position that requiring the use of
fall protection on stacked materials is infeasible and would create a
greater hazard (Ex. 238).
ISA, like PCI and AISI, argued that it is infeasible to require the
use of fall protection on stacked cargo and motor vehicles (Ex. 161).
In particular, ISA said permanent attachment of fall protection
equipment to motor vehicles is not feasible because the area of the
truck bed normally available for walking or working is usually quite
small and such equipment would interfere with the utility of trucks as
cargo-carrying vehicles. Like PCI and AISI, ISA also recommended that
OSHA ``should provide flexibility for employers in terms of
implementing alternative practices, appropriate training, or both''
(Ex. 161).
ISA also appeared to suggest that installing fall protection for
employees working on stacked materials would create a greater hazard.
ISA said employees stand or work on stacked materials only
``occasionally'' and ``temporarily'' to perform operations that ``are
strictly associated with rigging of cargo items for hoisting,''
implying that rigging stacked cargo only exposes employees to fall
hazards for a very brief period of time compared to the time necessary
to install fall protection systems (Ex. 161).
After reviewing the rulemaking record, OSHA does not agree that
requiring fall protection on stacked materials is infeasible or could
create a greater hazard. OSHA finds there is substantial evidence
showing that a number of fall protection systems for stacked materials
are available and already are in use in general industry (Exs. 155;
185; 198). For example, commenters said wheeled, trailer-mounted and
fork-lifted overhead anchor and retractable line systems are available
and in use to protect employees working on stacked materials (Exs. 155;
185; 198. See also, e.g., Exs. 148; 158; 355-2; OSHA-S029-2006-0662-
0373). These stand-alone systems can be used for stacking, storing, and
loading/unloading stacked materials in open yards and plants as well as
for loading/unloading stacked materials on rolling stock and motor
vehicles (e.g., Ex. 355-2). In addition, the record shows that other
fall protection systems employers use for loading/unloading stacked
cargo on rolling stock and motor vehicles also work for materials that
are stacked or stored in yards or plants. These systems include mobile
work platforms, scissor lifts and stairs equipped with railings/
guardrails that allow workers to access stacked materials without
standing on them (e.g., Exs. 63; 124; 169; 181; 335; OSHA-S029-2006-
0662-0208; OSHA-S029-2006-0662-0227; OSHA-S029-2006-0662-0350; OSHA-
S029-2006-0662-0373).
Finally, OSHA also concludes that the final rule does not need to
include specific or separate requirements addressing stacked materials.
OSHA believe that final Sec. 1910.28(b)(1) (Unprotected sides and
edges) and (b)(15) (Walking-working surfaces not otherwise addressed)
adequately address fall protection on stacked materials.
Hoist areas. Final paragraph (b)(2), like the proposed rule,
establishes fall
[[Page 82596]]
protection requirements for workers who work in hoist areas that are
four feet or more above a lower level. The final rule defines a ``hoist
area'' as an elevated access opening to a walking-working surface
through which equipment or materials are loaded or received (final
Sec. 1910.21(b)).
Final paragraph (b)(2)(i) requires employers to protect workers in
hoist areas from falls by:
Guardrail systems (final paragraph (b)(2)(i)(A));
Personal fall arrest systems (final paragraph
(b)(2)(i)(B)); or
Travel restraint systems (final paragraph (b)(2)(i)(C)).
The construction fall protection standard includes a similar
provision requiring that employers provide guardrail or personal fall
arrest systems to protect workers in hoist areas that are six feet or
more above a lower level (Sec. 1926.501(b)(3)). This final rule
provides greater control flexibility than the construction standard
because it also allows employers to provide travel restraint systems to
protect workers. OSHA received no comments on the proposed provision
and it is finalized as discussed.
Final paragraph (b)(2)(ii), like the proposed and construction
rules (Sec. 1926.501(b)(3)), requires that, if removing any portion of
a guardrail system, gate, or chains and if the worker leans through or
over the edge of the access opening to facilitate hoisting, the
employer must protect the worker from falling by a personal fall arrest
system. The proposed rule required that employers provide ``grab
handles'' on each side of a hoist area opening, in addition to a
personal fall arrest system, if removing the guardrail, gate, or chains
and if the worker leans out the access opening. The existing rule does
not have a specific provision addressing hoist areas. However, the
existing provisions on wall openings and holes requires that both sides
of openings and holes have grab handles if the rail, half door, or
other equivalent barrier is removed (existing Sec. 1910.23(b)(1)). In
addition, where the structure has extension platforms onto which
employers may place hoisted materials, the existing rule requires that
employers provide side rails or equivalent guards to protect workers
(existing Sec. 1910.23(b)(ii)). OSHA notes that it adopted the
existing rule in 1971, before personal fall arrest systems were widely
available.
OSHA only received one comment on the proposed provision. Ameren
recommended that OSHA define what would qualify as a grab handle to
ensure the final rule does not result in confusion or misinterpretation
(Ex. 189). After further consideration, OSHA believes it is not
necessary for employers to provide grab handles in addition to personal
fall arrest systems if removing guardrails, gates, or chains and if
workers look through or over the edge of an access opening to
facilitate hoisting. OSHA believes that personal fall arrest systems
provide adequate worker protection, and better protection than grab
handles, therefore, OSHA does not carry forward the proposed
requirement on grab handles. Of course, employers are free to provide
grab handles or other handholds in addition to personal fall arrest
systems in those situations. OSHA believes that the revisions in the
final rule address Ameren's concern and the provision is finalized as
discussed.
Final paragraph (b)(2)(iii), specifies that if grab handles are
installed at hoist areas, they must meet the requirements of Sec.
1910.29(l). Employers are not required to install grab handles at hoist
areas; however, if they do install grab handles, the handles must meet
the criteria specified in Sec. 1910.29(l). Although OSHA believes it
is not necessary to install grab handles at hoist areas when workers
use a personal fall arrest system, the Agency recognizes grab handles
can provide some security when workers must lean out from a hoist area.
In those cases, OSHA believes it is important for grab handles to be of
a certain size, have sufficient clearance, and be capable of
withstanding the forces placed on them.
Holes. Final paragraph (b)(3) consolidates the proposed
requirements to protect workers from falls associated with holes
(proposed paragraph (b)(3)) and floor holes (proposed paragraph
(b)(14)), and requires that employers protect workers from falling into
or through any hole, including skylights, stairway floor holes,
ladderway floor holes, hatchway and chute-floor holes, and other holes
on roofs. The final rule defines a ``hole'' as a gap or open space in a
floor, roof, horizontal walking-working surface, or other similar
surface that is at least 2 inches in its least dimension (final Sec.
1910.21(b)). Although skylights may be covered by screens or other
material, for the purposes of this definition and the final rule, OSHA
classifies skylights as holes. Falling into a hole or tripping and
possibly falling due to a hole in a walking-working surface may injure
or kill a worker.
OSHA believes that consolidating the requirements for protecting
workers from falling into or tripping on a hole is appropriate because
the hazards generally associated with these conditions, and the methods
to address these hazards, are the same. Moreover, consolidating the
provisions makes the final rule easier to understand and follow, which
will enhance employer compliance.
In the final rule, OSHA moved the proposed requirement (proposed
paragraph (b)(3)(iii)) to protect workers on walking-working surfaces
from being hit by objects falling through overhead holes to final
paragraph (c), Protection from falling objects. The final rule
consolidates all requirements addressing falling object hazards in
final paragraph (c).
OSHA received one general comment on the proposed requirements to
protect workers from falling or stepping into, or tripping on, holes.
Ellis Fall Safety Solutions (Ellis) said the final rule should require
that employers not leave holes exposed or uncovered for more than two
minutes and assign a ``standby person'' to be present to warn workers
about the hole until employers cover or barricade the hole (Ex. 155).
Ellis also said the final rule should require that employers use two
means to protect employers from falling into holes as a way ``to
safeguard the next trade or planned work'' (Ex. 155). For example,
Ellis suggested that employers cover the hole with a plywood board as
the primary means of protection and, as the secondary protection,
attach a net to a bar joist underneath the hole using a scissor lift.
OSHA believes the final rule provides a reasonable and appropriate
level of protection. Any of the fall protection systems specified by
the final rule will protect workers from falling, tripping, or stepping
into holes. OSHA believes the final rule already ensures the ``next
trade'' is safeguarded from holes. The final rule requires that all
employers in any trade must conduct inspections of walking-working
surfaces and maintain those surfaces in a safe condition before
allowing workers to work there (final Sec. 1910.22(d)(1)). OSHA notes
that employers are free to use more than one measure to protect workers
from hazards associated with holes.
Final paragraph (b)(3)(i) requires that employers ensure workers
are protected from falling through any hole (including skylights) that
is four feet or more above a lower level using one or more of the
following:
A cover over the hole (paragraph (b)(3)(i)(A));
A guardrail system around the hole (paragraph
(b)(3)(i)(B));
A travel restraint system (paragraph (b)(3)(i)(C)); or
A personal fall arrest system (paragraph (b)(3)(i)(D)).
Final paragraph (b)(3)(i) is the same as the proposed rule, and
provides greater
[[Page 82597]]
control flexibility than the existing general industry and construction
fall protection rules (existing Sec. 1910.23(a)(4), (8), and (9), and
Sec. 1926.501(b)(4)). The existing general industry rule only allows
employers to guard holes using standard railings (guardrails) or, in
some situations, a cover. The construction rule does not include travel
restraint systems as a fall protection option to protect workers from
falling into holes (Sec. 1926.501(b)(4)(i)).
Final paragraph (b)(3)(ii) requires that employers ensure workers
are protected from tripping into or stepping into or through any hole
that is less than four feet above a lower level by covers or guardrail
systems. The final rule differs from the proposal in two ways. First,
final paragraph (b)(3)(ii) clarifies that OSHA intended that the
proposed requirement only applied to holes that are less than four feet
above a lower level. Where a hole is four feet or more above a lower
level, the requirements in final paragraph (b)(3)(i) apply and ensure
that workers do not step or trip into the hole or fall into it. Second,
final paragraph (b)(3)(ii) provides greater control flexibility than
the proposal and the construction fall protection standard because it
adds guardrail systems as an alternative option employers may use to
protect workers from tripping or stepping into holes. Proposed
paragraph (b)(3)(ii) and the construction standard (Sec.
1926.501(b)(4)(ii)) only permit employers to use covers to prevent
stepping or tripping into holes.
Final paragraph (b)(3)(iii), like the existing standard (Sec.
1910.23(a)(1)) and the proposed rule (proposed paragraph (b)(14)(i)),
requires that employers ensure workers are protected from falling into
stairway floor holes by a fixed guardrail system erected on all exposed
sides, except at the stairway entrance. The final rule also carries
forward, with revisions, the existing and proposed exception for
stairways when (1) used less than once a day and (2) traffic across the
opening prevents the use of a fixed guardrail system (e.g., stairway
floor hole located in store aisle). In that situation, employers may
protect workers from falling using a hinged floor-hole cover that meets
the criteria in Sec. 1910.29 plus a removable guardrail system on all
exposed sides except the stairway entrance. The exception in the final
rule is consistent with ANSI/ASSE A1264.1-2007, Safety Requirements for
Workplace Walking/Working Surfaces and Their Access; Workplace, Floor,
Wall and Roof Openings; Stairs and Guardrails Systems (ANSI/ASSE
A1264.1-2007).
OSHA also clarifies the ``infrequently used'' language in the
existing exception by incorporating the language in a note in the
proposed rule stating that ``infrequently used'' means using the
stairways ``on less than a daily basis.'' The exception in the final
rule also clarifies the language in the existing and proposed rules
requiring that the hinged floor-hole cover be of ``standard strength
and construction'' by specifying that the cover must meet the criteria
in final Sec. 1910.29, specifically Sec. 1910.29(e). OSHA believes
the language in the final rule will make the rule easier for employers
to understand and follow. For example, requiring that the hinged floor-
hole cover meet the requirements in Sec. 1910.29 ensures that they
will support, without failure, at least twice the maximum intended load
that may be imposed on the cover (final Sec. 1910.29(e)(1)). This is
important because a hinged floor-hole cover, like all covers, need an
adequate margin of safety to ensure they are capable of supporting
intended loads, and to account for the possibility of unforeseen
traffic across the cover.
In addressing stairways used less than once a day, OSHA requested
information and comment in the proposed rule on using automatically
rising railings that come into position when a load-bearing hinged
floor-hole cover opens (75 FR 28892). Explanatory paragraph E3.1 in
ANSI/ASSE A1264.1-2007 states that the removable guardrail system
required for infrequently used stairways should be ``hinged or
otherwise mounted so as to come into position automatically with the
opening of the [hinged floor-hole] cover.'' Ameren commented, ``As long
as the automatic rising railings are an option and not the only method
of protection this provision would be feasible'' (Ex. 189). OSHA did
not receive any comments supporting making automatically rising
guardrails mandatory, and the final rule does not include such a
requirement.
Final paragraph (b)(3)(iv), similar to the existing (Sec.
1910.23(a)) and proposed (proposed paragraph (b)(14)(ii)) rules,
requires that employers ensure they protect workers from falling into
ladderway floor holes or ladderway platform holes by providing a
guardrail system and toeboards on all exposed sides, except at the hole
entrance. In addition, the final rule requires that employers protect
the access opening in the guardrail system by using a ``self-closing''
gate or an offset so workers cannot walk or step into the hole.
Final paragraph (b)(3)(iv) substitutes ``self-closing'' gate for
``swinging'' gate language in the existing and proposed rules. The
purpose of these gates, when open, is to provide a means of access to
ladderway floor holes and, when closed, to provide guardrail protection
that meets of all the criteria in final paragraph (b). The term
``swinging'' gate, as used in the existing and proposed rules, refers
to gates that automatically swing back into a closed position when the
opening is not being used for access to prevent workers from falling
into the ladderway hole. These are sometimes called ``safety gates''
(Ex. 68). If gates do not swing automatically into a closed position,
they do not provide the required guardrail protection.
OSHA is aware that, in addition to swinging gates, there are
automatically closing sliding gates that are currently manufactured,
readily available, and in use to protect workers from falling into
ladderway floor and platform holes. OSHA believes these sliding gates
provide protection that is as effective as the protection swinging
gates provide. Therefore, to give employers the flexibility to use the
type of automatically closing gate that works best for them, OSHA uses
the term ``self-closing'' gates in final paragraph (b)(3)(iv).
OSHA received one comment on the proposed requirement. Edison
Electric Institute (EEI) recommended that OSHA allow employers to use
double chains ``around holes used as points of access (such as
ladderways)'' (Ex. 207). ``Many industrial facilities use double chains
instead of swinging gates or guardrails at the top of fixed ladders,''
EEI said. ``These have been effective for a number of decades'' (Ex.
207). EEI also pointed out that the 1990 proposed rule would have
allowed the use of chains, in addition to swinging gates and offsets,
at the access openings in the guardrail systems.\50\
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\50\ See also Letter to Mr. Stephen Hazelton (5/23/2005) that
states:
[T]he [1990] proposed paragraph at 1910.28(b)(6) permits the use
of movable guardrail sections such as gates, chains, and other
means, which, when open, provide a means of access and, when closed,
provide the guardrail protection that meets the proposed paragraphs
1910.28(b)(1) through (b)(5). An employer's compliance with the
proposed rule, in lieu of compliance with an existing rule
[1910.23(a)(2)], is considered as a de minimis violation.
This letter available on OSHA's website at:
https://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_id=25100.
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OSHA has not adopted EEI's recommendation. In the preamble to the
2010 proposed rule, OSHA said the new proposed rule replaces the 1990
proposal (75 FR 28863). Unlike the 1990 proposal, proposed paragraph
(b)(14)(ii)
[[Page 82598]]
did not permit employers to use double chains in place of self-closing
gates or offsets. As mentioned, OSHA believes that chains less
protective than self-closing gates or off sets. Self-closing gates and
offsets are passive fall protection methods that automatically restore
guardrail protection as soon as the worker passes through the opening
or offset area. Neither method requires the worker to take any action
to restore that protection. However, if employers provide double chains
at entrances to ladderway floor or platform holes, their employees
would have to remove the chains and reattach them once they pass
through the opening. If workers forget or fail to reattach the chains,
they and others in the area could fall through the hole. Workers also
are at increased risk of falling through the hole once they enter the
area inside the guardrails to climb down the ladder because they have
to turn around and away from the hole to reattach the chains and risk
falling backward into the hole. If workers avoid this risk by not
reattaching the chains, it exposes other workers to the risk of a fall
when they approach the opening in the guardrail system. OSHA believes
that double chains do not fully protect workers from falls at hole
entrances, and therefore, is adopting the existing and proposed
requirements that entrances to ladderway floor and platform holes have
a self-closing gate or be offset to prevent workers from falling.
Final paragraph (b)(3)(v), like proposed paragraph (b)(14)(iii),
requires that employers ensure workers are protected from falling
through hatchway and chute-floor holes by one of the following:
A hinged floor-hole cover and a fixed guardrail system
that leaves only one exposed side.\51\ When the hole is not in use, the
employer must ensure the cover is closed or a removable guardrail
system provided on all exposed sides (final paragraph (b)(3)(v)(A));
---------------------------------------------------------------------------
\51\ OSHA used the term ``permanently attached'' guardrail
system in the proposal. In the final rule, OSHA uses the term
``fixed'' guardrail systems, which OSHA considers to be equivalent
to, but clearer than, the proposed term.
---------------------------------------------------------------------------
A removable guardrail system and toeboards on not more
than two sides of the hole and a fixed guardrail system on all other
exposed sides. The employer must ensure the removable guardrail system
remains in place when the hole is not in use (final paragraph
(b)(3)(v)(B)); or
A guardrail system or travel restraint system when the
work operation necessitates passing material through a hatchway or
chute floor hole (final paragraph (b)(3)(v)(C)).
With one exception (final paragraph (b)(3)(v)(C)), the final rule
generally is consistent with existing Sec. 1910.23(a)(3) and A1264.1-
2007 (Section 3.1). Final paragraph (b)(3)(v)(C) adds a requirement
that employers provide a guardrail system or travel restraint system
when workers need to pass materials through a hatchway or chute-floor
hole. The existing and ANSI rules only state that ``protection shall be
provided to prevent a person from falling through the opening,'' but do
not specify what protection is needed. OSHA believes the final rule is
more protective and clearer than these rules because it specifies how
employers must protect workers. OSHA adopts final paragraph (b)(3) as
discussed.
Dockboards. Final paragraph (b)(4) adds fall protection
requirements to protect workers on dockboards. The final rule defines a
``dockboard'' as a portable or fixed device for spanning a gap or
compensating for the elevation difference between a loading platform
and a transport vehicle. Dockboards include, but are not limited to
bridge plates, dock plates, and dock levelers. (final Sec.
1910.21(b)).
Final paragraph (b)(4)(i), like the proposal, requires that
employers ensure each worker on a dockboard is protected from falling
four feet or more to a lower level by a guardrail system or handrails.
The final rule limits the fall protection options that employers may
use. OSHA believes guardrails and handrails will provide adequate
protection for workers. In addition, employers can use them on
dockboards while other options may not work. For example, it may not be
possible to install anchorages on dockboards that would support the use
of personal fall arrest systems.
OSHA notes that in some situations there may be insufficient space
between the dock and the transport vehicle for a worker to fall and,
therefore, no fall hazard would exist. In that situation, final
paragraph (b)(4)(i) would not apply.
Final paragraph (b)(4)(ii), like the proposal, includes an
exception specifying that employers do not have to provide a guardrail
system or handrails when:
Using the dockboard solely for materials-handling
operations using motorized equipment (final paragraph (b)(4)(ii)(A));
Workers engaged in motorized material-handling operations
are not exposed to fall hazards greater than 10 feet (final paragraph
(b)(4)(ii)(B)); and
Employers train those workers in accordance with Sec.
1910.30 (final paragraph (b)(4)(ii)(C)).
Final paragraph (b)(4)(ii)(C) does not include the proposed
language identifying the subjects that training must address. The
requirements in final Sec. 1910.30 cover all of the topics OSHA
proposed, thus, OSHA does not believe it is necessary to repeat them in
this provision.
OSHA believes the exception in final paragraph (b)(4)(ii) is
appropriate. Employers often use motorized equipment to move large and
heavy material across dockboards. However, such equipment may not fit
on a dockboard that has guardrails or handrails. Preventing workers
from using motorized equipment to move the material may expose them to
other hazards, such as risk of injury associated with lifting and
carrying heavy materials. OSHA did not receive any comments on the
proposed dockboard requirements, and finalizes the provisions as
discussed.
Runways and similar walkways. Final paragraph (b)(5) specifies the
fall protection systems that employers must provide to protect workers
from falling off runways and similar walkways. The proposed and final
rules define a ``runway'' as an elevated walking-working surface (Sec.
1910.21(b)). For purposes of the final rule, runways include catwalks,
foot walks along shafting, and elevated walkways between buildings.
Final paragraph (b)(5)(i), like the proposed rule, retains the
existing requirement (Sec. 1910.23(c)(2)) that employers must protect
workers on runways or similar walkways from falling four feet or more
to a lower level by a guardrail system. The final rule generally is
consistent with the construction fall protection standard (Sec.
1926.501(b)(6)). Like dockboards, the final rule limits the fall
protection options employers may use. OSHA believes that guardrails
will provide adequate protection from falls, and that other options may
not work on runways. For example, it may not be possible for employers
to install anchorages and other components of personal fall protection
systems that would protect workers from falling off runways while still
allowing them to walk on the runway.
Final paragraph (b)(5)(i) no longer includes the existing and
proposed requirement that employers provide toeboards on both sides of
runways if workers are likely to use tools, machine parts, or other
objects on the runway. The primary purpose of requiring toeboards is to
prevent objects from
[[Page 82599]]
falling onto workers on a lower level. As mentioned earlier, OSHA
consolidated all requirements addressing falling object hazards in
final paragraph (c), and, therefore, does not repeat them here.
Final paragraph (b)(5)(ii), which is similar to the proposed rule,
addresses runways used exclusively for special purposes, such as
filling tank cars. The final paragraph requires that when the employer
can demonstrate that it is not feasible to have guardrails on both
sides of special purpose runways, the employer may omit the guardrail
on one side, provided the employer:
Ensures that the runway is at least 18 inches wide (final
paragraph (b)(5)(ii)(A)); and
Provides each worker with, and ensures that each worker
uses, a personal fall arrest system or travel restraint system (final
paragraph (b)(5)(ii)(B)).
The final rule clarifies two points in the proposed rule. First,
the final rule clarifies that guardrails may be omitted from a special
purpose runway only when the employer can demonstrate that it is not
feasible to have guardrails on both sides of the runway. Feasibility is
the standard test of whether employer action is possible, and OSHA
believes employers are familiar with, and understand, it.
Second, final paragraph (b)(5)(ii)(B) clarifies the language in the
proposed rule requiring that employers ensure ``the proper use of
personal fall arrest systems or travel restraint systems.'' This
provision means that employers may omit a guardrail on one side of a
special purpose runway only when the employer both provides and ensures
that each worker properly uses a personal fall arrest system or travel
restraint system.
OSHA notes that the final rule provides greater protection for
workers than both the existing rule (Sec. 1910.23(c)(2)) and A1264.1-
2007 (Section 5.2). Although these standards specify that employers may
omit a guardrail on one side of a special use runway only if they use a
runway that is at least 18 inches wide (consistent with final paragraph
(b)(5)(ii)(A)), the standards do not require that employers provide,
and ensure that workers use, personal fall arrest or travel restraint
systems while on those runways.
OSHA received no comments on the proposed runway requirements, and
adopts them with the revisions discussed above.
Dangerous equipment. Final paragraph (b)(6) addresses the hazards
associated with working above dangerous equipment. Final Sec.
1910.21(b) adopts the definition of ``dangerous equipment'' in the
construction fall protection standard (Sec. 1926.500(b)). The
definition also specifies that such equipment includes vats, tanks,
electrical equipment, machinery, machinery with protruding parts, or
similar units that, because of their function or form, may harm a
worker who falls into or onto the equipment. The existing rule in Sec.
1910.23(c)(3) also provides examples of equipment OSHA considers to be
dangerous, including pickling or galvanizing tanks and degreasing
units. The definition of dangerous equipment in this final rule
includes similar equipment. OSHA added a definition of dangerous
equipment to the final rule in response to Northrup Grumman
Shipbuilding's (NGS) recommendation that OSHA define the term so that
employers understand what equipment the final rule covers (Ex. 180).
This final rule, like the proposed rule, includes requirements for
protecting workers who are working less than four feet above dangerous
equipment. OSHA believes it is necessary to protect workers from
falling onto or into dangerous equipment regardless of how far above
the equipment they are working. Falling less than four feet into or
onto equipment that has sharp, protruding, or moving parts could kill
or seriously injure a worker.
When workers are less than four feet above dangerous equipment,
final paragraph (b)(6)(i), like the proposed rule, requires that
employers protect workers from falling into or onto the dangerous
equipment using a guardrail system or a travel restraint system, unless
the equipment is covered or guarded to eliminate the hazard. The
existing rule in Sec. 1910.23(c)(3) requires that, regardless of
height, employers must protect workers who are working above dangerous
equipment using guardrails and toeboards. The construction fall
protection standard contains a provision requiring guardrails or
equipment guards when workers are working less than six feet above
dangerous equipment (Sec. 1926.501(b)(8)).
OSHA believes final paragraph (b)(6)(i), which allows employers to
protect their workers by providing either guardrails or travel
restraint systems, but does not require toeboards, provides greater
control flexibility than the existing rule without compromising worker
safety. OSHA believes that either guardrails or travel restraint
systems provide sufficient protection for workers above dangerous
equipment. Therefore, OSHA does not believe that toeboards, which
primarily protect workers from falling objects from higher levels, are
necessary. Accordingly, OSHA deleted the existing toeboard requirement,
but notes that final paragraph (c)(1) of this section requires that
employers provide toeboards to protect workers from objects falling
from higher levels and hitting them.
OSHA notes that the final rule does not permit employers to use
safety nets or personal fall arrest systems when workers are less than
four feet above dangerous equipment. At these heights, safety nets and
personal fall arrest systems may not be safe to use because there may
not be sufficient stopping distance to prevent a falling worker from
making contact with the dangerous equipment.
Final paragraph (b)(6)(i), like the proposal, does not require
employers to use guardrails or travel restraint systems if the employer
covers or guards dangerous equipment and the worker is less than four
feet above the equipment. OSHA believes that covering or guarding
dangerous equipment that is less than four feet below workers
adequately eliminates the hazard.
When workers are four feet or more above dangerous equipment, final
paragraph (b)(6)(ii), like the proposed rule, requires that employers
protect workers from falling by providing:
Guardrail systems (final paragraph (b)(6)(ii)(A));
Safety net systems (final paragraph (b)(6)(ii)(B));
Travel restraint systems (final paragraph (b)(6)(ii)(C));
or
Personal fall arrest systems (final paragraph
(b)(6)(ii)(D)).
Final paragraph (b)(6)(ii) provides more control flexibility for
employers than the existing rule, which requires that employers protect
workers from falling onto or into dangerous equipment by providing a
guardrail system. OSHA believes that allowing employers to use a range
of fall protection options ensures that employers will be able to
select the fall protection option that best fits the particular
workplace situation and conditions.
OSHA received two comments on the proposed provision. Verallia
recommended that OSHA delete the requirement because they said the
proposal was ``too subjective and vague'' and ``could be interpreted
differently'' (Ex. 171). However, Verallia did not provide examples or
further explain its recommendation. As mentioned earlier, this final
rule adds a definition of dangerous equipment, which also includes
examples of specific equipment OSHA considers to be dangerous. The
final rule specifically
[[Page 82600]]
and clearly identifies what constitutes dangerous equipment, what
protections employers must provide at specific heights, and when and at
what height employers can protect workers from falling using fall
protection options other than guardrails or travel restraint systems.
Moreover, OSHA believes the examples of equipment OSHA defines as being
dangerous specifically clarifies, in objective terms, under what
conditions employers must comply with the final rule and, therefore,
reduces the possibility of conflicting interpretations.
The second commenter, NGS, said the proposed rule was not as
protective as the existing rule and would not provide an equivalent
level of protection from ``open pits, vats, etc.'' as existing Sec.
1910.22(c) (Ex. 180). NGS recommended that ``standard guardrails be
required around open tanks'' and ``vats that contain hazardous
substances that pose an immediate threat to life'' (Ex. 180). OSHA does
not believe including NGS's recommendations are necessary in this final
rule. First, although final paragraph (b)(6) does not retain existing
Sec. 1910.22(c) as a separate provision, OSHA incorporated into the
final definition of dangerous equipment all of the equipment Sec.
1910.22(c) covers, including the equipment NGS mentioned. The final
rule does not leave any dangerous equipment unaddressed, and,
therefore, the Agency believes the final rule provides protection
equivalent to that in existing Sec. 1910.22(c).
Second, the final rule allows employers to use controls that
provide equivalent or greater protection than the controls specified in
existing Sec. 1910.22(c). OSHA believes that giving employers
flexibility in choosing what protection to use will enable them to
select the measure that works best, and is the most effective, in the
particular work situation. Third, the final rule recognizes that it may
not be possible to use guardrails in a particular situation and
provides employers with alternatives that will protect their workers in
those cases.
Fourth, where dangerous equipment is not covered or guarded, final
paragraph (b)(6)(i) requires that employers use guardrails or travel
restraint systems to protect workers from falling onto the dangerous
equipment, when the height of the fall is less than four feet. OSHA
notes that employers are free to use guardrails when an employee works
at any height above dangerous equipment.
Openings. Final paragraph (b)(7), similar to the proposed rule,
requires that employers protect workers from falling through openings.
Final Sec. 1910.21(b), like both the proposed and construction (Sec.
1926.500(b)) rules, defines an ``opening'' as a gap or open space in a
wall, partition, vertical walking-working surface, or similar surface
that is at least 30 inches high and at least 18 inches wide through
which a worker can fall to a lower level.
The final rule requires that employers protect workers on walking-
working surfaces near openings (including openings with a chute
attached) if the inside bottom edge of the opening is less than 39
inches above the walking-working surface and the outside bottom edge of
the opening is four feet or more above a lower level. The employer must
protect workers from falling through those openings by providing:
Guardrail systems (final paragraph (b)(7)(i));
Safety net systems (final paragraph (b)(7)(ii));
Travel restraint systems (final paragraph (b)(7)(iii)); or
Personal fall arrest systems (final paragraph (b)(7)(iv)).
The final rule, unlike the proposal (proposed paragraph
(b)(7)(ii)), does not allow employers to use designated areas instead
of providing conventional fall protection to protect workers from
falling through openings. As discussed above, the final rule limits the
use of designated areas to the limited and specific situation of work
on low-slope roofs. Deleting the option of designated areas from final
paragraph (b)(7) makes the provision consistent with the construction
standard, which also does not allow the use of designated areas to
protect workers from falling through openings (Sec. 1926.501(b)(14)).
The final rule simplifies, updates, and increases the control
flexibility of the existing rule. For example, the final rule
establishes one set of requirements that apply to all openings, while
the existing rule, in Sec. 1910.23(b), contains different provisions
for different types of wall openings (e.g., chute-wall, window-wall,
and temporary wall openings). The final rule also incorporates new fall
protection technology (e.g., personal fall arrest systems, travel
restraint systems, safety net systems) in place of some of the measures
listed in the existing rule (e.g., rail, roller, picket fence, half
door, standard slats, standard grill work). OSHA believes that allowing
employers to use new technology will enhance worker protection.
Finally, in several ways the final rule provides more flexibility
than the existing rule. First, the final rule only requires employers
to provide fall protection when the inside bottom edge of the opening
is less than 39 inches above the floor or other type of walking-working
surface, while the existing rule, with one exception, generally
requires employers to protect wall openings regardless of the height of
the bottom inside edge of the opening.\52\ OSHA does not believe that
it is necessary to provide fall protection when the bottom inside edge
of openings are 39 inches or higher than the walking-working surface on
which the worker is standing; in such cases, OSHA believes the wall or
partition itself usually provides adequate protection against falling
though the opening. Second, the final rule allows employers to use a
wider range of fall protection options than the existing rule to
protect workers near wall openings. OSHA believes the increased
flexibility will ensure that workers have the most effective protection
because employers will be able to select the fall protection option
they determine works best in the particular situation. Finally,
paragraph (b)(7) of the final rule, unlike the existing rule in Sec.
1910.23(b)(1)) and (e)(10), does not require that employers install
grab handles on each side of wall openings. OSHA believes that the fall
protection options specified by final paragraph (b)(7) provide adequate
protection from falls through wall openings, and therefore, grab
handles are not necessary.
---------------------------------------------------------------------------
\52\ OSHA notes the existing provision (Sec. 1910.23(b)(3)) for
window wall openings at stair landings, floors, platforms, or
balconies did not require fall protection if the bottom edge of the
opening is three feet or more above the landing, floor, platform, or
balcony.
---------------------------------------------------------------------------
As discussed in the preamble to the proposed rule, when work
operations require that workers reach through wall openings to
facilitate hoisting materials, OSHA considers the opening to be a
``hoist area'' covered by final paragraph (b)(2), and not a wall
opening. OSHA believes this distinction is important. Final paragraph
(b)(7) allows employers to use guardrail, personal fall arrest, travel
restraint, or safety net systems to protect workers from falling
through wall openings. However, it is not always possible to use a
safety net system to protect workers from falling when they are
hoisting materials through an opening because a safety net system may
interfere with materials being hoisted or may not provide a sufficient
stopping distance to prevent a falling worker from making contact with
the lower level. Accordingly, final paragraph (b)(2) specifies that
employers must protect workers using only a guardrail, personal fall
arrest, or travel restraint systems. Moreover, when workers need to
lean out or over the edge of the hoist area, final paragraph (b)(2)
requires that employers protect workers with personal fall arrest
[[Page 82601]]
systems. Final paragraph (b)(7) does not contain the protective
limitations specified by final paragraph (b)(2). OSHA did not receive
any comments on proposed paragraph (b)(7), and adopts it as discussed.
Repair, service and assembly pits (pits) less than 10 feet deep.
Final paragraph (b)(8), like the proposed rule, adds a new provision
addressing fall hazards associated with repair, service, and assembly
pits that are less than 10 feet deep. Employers use these pits
primarily to provide access to the underside of vehicles to perform
work, such as vehicle maintenance. Typically, a worker drives a vehicle
over the pit and uses stairs to get into the pit. The final rule
specifies that employers do not have to provide fall protection systems
for service, repair, or assembly pits that are less than 10 feet deep,
provided the employer:
Limits access within six feet of the pit edge to
authorized workers trained in accordance with final Sec. 1910.30
(final paragraph (b)(8)(i));
Applies floor markings or warning lines and stanchions, or
a combination thereof, at least six feet from the pit edge. Floor
markings must be a color that contrasts with the surrounding area and
warning lines and stanchions must be capable of resisting, without
tipping over, a force of at least 16 pounds that is applied
horizontally against the stanchion at a height of 30 inches (final
paragraph (b)(8)(ii)); and
Posts readily visible caution signs that state ``Caution--
Open Pit'' and meet the requirements of Sec. 1910.145, Specifications
for Accident Prevention Signs (final paragraph (b)(8)(iii)).
Final paragraph (b)(8) only applies to service, repair, and
assembly pits that are less than 10 feet deep. For deeper pits,
employers must provide a conventional fall protection system specified
in final paragraph (b)(1), Unprotected sides and edges.
Neither the existing nor construction fall protection rules contain
a similar provision on service, repair, and assembly pits.
Historically, OSHA addressed these hazards through Section 5(a)(1)
(General Duty Clause) of the OSH Act (29 U.S.C. 654).
The final rule recognizes that protecting workers from falling into
service, repair, and assembly pits can present some unique issues. For
example, for vehicle service and repair pits, the fall hazard is
present only when a vehicle is not over the pit. Driving a vehicle over
the pit normally eliminates the fall hazard. In addition, conventional
fall protection systems may not work at service, repair, and assembly
pits. For instance, using guardrails can interfere with driving
vehicles over or away from a pit, and personal fall arrest and travel
restraint systems may prevent workers from reaching the area where they
need to perform work. Finally, it is OSHA's understanding that workers
are unlikely to be near service, repair, and assembly pits when they
are not working on vehicles.
OSHA believes the final rule strikes an appropriate balance between
protecting workers and ensuring that they can repair, service, or
assemble vehicles. The Agency believes that establishing well-marked
areas (that is, floor markings or warning lines and stanchions, or
both), along with posting caution signs, will be effective in warning
authorized workers that they are about to enter a hazardous area, and
other workers that they need to keep out of the area. In addition,
limiting access within six feet of pits to those workers who the
employer specifically assigns or allows to be in the area, and who, as
a result of training, recognize the applicable fall hazards, will keep
worker exposure to these hazards to a minimum.
OSHA received comments on the proposed provision from the American
Trucking Associations, Inc. (ATA) and the American Truck Dealers
Division of the National Automobile Dealers Association (NADA). Both
organizations supported the proposed rule (Exs. 181; 187). NADA said,
``These proposed requirements should serve to adequately address the
potential for fall hazards related to motor vehicle service pits'' (Ex.
181).
OSHA added a sentence to the final rule addressing the situation
where two or more pits are in a common area and are not more than 15
feet apart. It specifies that OSHA employers may comply with final
paragraph (b)(8)(ii) if they place contrasting floor markings at least
six feet from the pit edge around the entire area of the pits. OSHA
added the sentence to respond to a comment from ATA, which stated:
OSHA should include a provision stating that when two or more
pits are in a common area, a perimeter marking and the posting of
appropriate warnings around the entire area will meet the
requirements of this section. In addition, when the distance from a
building entrance to the pit is less than 6 feet, a floor marking
and warning sign at the entrance will satisfy the requirements (Ex.
187).
ATA also noted, ``In some large motor carrier facilities, there may be
two or more adjacent pits in one area of the shop,'' that ``[t]he
distance between pits can vary from 12 to 15 feet,'' and that ``the
distance from the doorway to the closest portion of the pit . . . is
less than six feet'' (Ex. 187). OSHA believes the added sentence in the
final rule addresses ATA's concerns and finalizes the provision as
discussed.
Fixed ladders (that extend more than 24 feet above a lower level).
Final paragraph (b)(9) establishes fall protection requirements for
fixed ladders that extend more than 24 feet above a lower level. Final
Sec. 1910.21(b), like the proposed rule, defines ``fixed ladder'' as a
ladder with rails or individual rungs that is permanently attached to a
structure, building, or equipment. Fixed ladders include individual
rung ladders, but not ship stairs, step bolts, or manhole steps.
Final paragraph (b)(9), like the proposal, only requires that
employers provide fall protection to those fixed ladders that extend
more than 24 feet above a lower level. The existing rule (Sec.
1910.27(d)(1)(ii)) requires that fixed ladders more than 20 feet above
a lower level be equipped with cages or wells. Changing the fall
protection trigger height to 24 feet makes the final rule consistent
with ANSI/ASC A14.3-2008 and OSHA's construction ladder standard (Sec.
1926.1053(a)(18) and (19)), which is one of the Agency's goals in this
rulemaking. This change allows workers who perform both general
industry and construction activities to use fixed ladders with the same
fall protection trigger height.
Siebe North, Inc., a manufacturer of ladder safety systems and
personal fall arrest systems, supported the proposed change in the fall
protection trigger height for fixed ladders (Ex. OSHA-S041-2006-0666-
0198). CSG and ISEA, on the other hand, argued that OSHA should require
fall protection on fixed ladders from the ground up (Exs. 185; 198). As
discussed above, limiting fall protection to fixed ladders that extend
more than 24 feet above a lower level makes the final rule consistent
with both OSHA's construction rule and the long-standing ANSI standard
(A14.3). In any event, OSHA does not believe the change from the
existing rule will affect worker safety substantially because fixed
ladders that extend more than 24 feet must have fall protection systems
that protect workers from the ground up even if workers climb the
ladder less than 24 feet above the lower level.
In final paragraph (b)(9)(i), OSHA revises the existing fall
protection requirements for fixed ladders. The final rule requires that
employers equip fixed ladders with ladder safety systems or personal
fall arrest systems to protect workers from falling to a lower level,
which could result in death or serious injury. Final paragraph
(b)(9)(i) establishes a new framework to protect
[[Page 82602]]
workers from fall hazards on fixed ladders that allows employers to
gradually, over 20 years, phases in ladder safety systems/personal fall
arrest systems and phase out the use of cages and wells as a means of
fall protection. After this 20-year period ends, the final rule
requires that employers must ensure all fixed ladders are equipped with
either ladder safety or personal fall arrest systems to protect workers
from fall hazards. The final rule establishes the following phase-in/
phase-out schedule:
For existing fixed ladders (that is, for ladders erected
before November 19, 2018)--employers have up to 20 years to install
ladder safety or personal fall arrest systems (final paragraph
(b)(9)(i)(A));
For new fixed ladders (that is, for new ladders erected on
or after November 19, 2018)--the employer must equip the new ladder
with a ladder safety or personal fall arrest system (final paragraph
(b)(9)(i)(B));
For ladder repairs and replacements--when an employer
replaces any portion of a fixed ladder the replacement must be equipped
with a ladder safety or personal fall arrest system (final paragraph
(b)(9)(i)(C)); and
The final deadline for all fixed ladders--on and after
November 18, 2036 all fixed ladders must be equipped with a ladder
safety or personal fall arrest system (final paragraph (b)(9)(i)(D)).
(See further discussion of phase-out schedule below.)
The gradual phasing out of cages and wells means that employers may
continue to use existing fixed ladders during the 20-year phase-out
period, even if the existing fixed ladders are equipped only with cages
and wells. However, during the 20-year phase out period, when employers
install new fixed ladders or replace a portion of a section on an
existing fixed ladder, final paragraphs (b)(9)(i)(B) and (C) require
them, respectively, to install a new fixed ladder equipped with a
ladder safety or personal fall arrest system (when replacing the entire
ladder) or equip the replacement section (e.g., a ladder with multiple,
offset sections) with a ladder safety system or personal fall arrest
system (when replacing a portion of an existing fixed ladder). At the
end of 20 years, final paragraph (b)(9)(i)(D) specifies that all fixed
ladders must be equipped with ladder safety or personal fall arrest
systems. (OSHA notes that after the 20-year phase out period ends
employers may still have or equip fixed ladders with cages and wells,
but OSHA will not consider them to be a means of fall protection.)
The proposed rule would have allowed employers to use cages, wells,
ladder safety systems, or personal fall arrest systems when the length
of a climb is less than 24 feet regardless of the height of the ladder
(proposed Sec. 1910.28(b)(9)(i)). When the total length of a climb on
a fixed ladder is at least 24 feet, the proposed rule would have
allowed employers to equip the fixed ladder with a ladder safety
system, personal fall arrest system, cage or well (proposed Sec.
1910.28(b)(9)(ii)). OSHA is phasing in the requirement to equip fixed
ladder with ladder safety systems/personal fall arrest systems and
phasing out the use of cages and wells as a means of fall protection
because there is wide recognition in general industry that cages and
wells neither prevent workers from falling off ladders nor protect them
from injury when a fall occurs (e.g., Exs. OSHA-S041-2006-0666-0198;
113; 155; 185; 198; 329 (1/21/2011), pgs. 18-19, 259). In general,
stakeholders said cages and wells simply ``contain employees in the
event of a fall and direct them to a lower landing'' rather than
preventing them from hitting a lower level (Ex. 113; see also Exs.
OSHA-S041-2006-0666-0198; 155; 185; 198; 329 (1/21/2011), pgs. 18-19,
259)). In addition, they also said fixed ladder cages and wells may
result in severe injury or fatality and increase the severity of fall
injuries (Ex. 113; 185; 198; OSHA-S041-2006-0666-0198). Therefore, they
said OSHA should require that fixed ladders be equipped with ladder
safety systems or personal fall arrest systems (Exs. OSHA-S041-2006-
0666-0198; OSHA-S041-2006-0666-0354; 113; 155; 185; 198; 329 (1/21/
2011), pgs. 18-19, 259).
As far back as 1990, when OSHA first raised the question about the
effectiveness of cages and wells as a means of fall protection on fixed
ladders, Siebe North, Inc., a manufacturer of ladder safety and
personal fall protection systems, said OSHA should require that fixed
ladders be equipped with ladder safety systems or personal fall arrest
systems:
Except to the extent that a cage or well will change the
trajectory of a fall so that the victim falls directly to the base
of the ladder, we are unaware of any empirical or other data which
suggests that a cage or well will otherwise result in a fall which
is not a free fall--or, more importantly, a fall likely to result in
less severe injury than would be caused by a free fall of the same
distance. (Indeed, most falls of any significant distance in cages,
and probably in wells as well, are likely to add to the victim's
trauma due to impacts with the cage or well during the course of the
fall.)
* * * * *
As already noted, except to the extent that it directs the
victim's falling body to the base of the ladder, a cage or well
provides no protection for the falling climber. On the other hand,
where a ladder safety device is used, a climber's fall is stopped in
2 feet or less, with no trauma from this short fall. When a fall
occurs, a ladder safety device alone will both save a life and
prevent injury, no matter where in the climb the fall begins. On the
other hand, a cage or well will do neither. If the ladder is
equipped with only a cage or well, whether a falling climber dies or
merely lives with severe injury depends entirely on the length of
the fall since the cage or well will have no protective effect (Ex.
OSHA-S041-2006-0666-0198) (emphasis in original).
In response to the 2010 proposed rule, a number of commenters also
agreed that employers need to equip fixed ladders with ladder safety
systems/personal fall arrest systems because cages and wells are not
effective fall protection measures (Exs. 113; 185; 198; 329 (1/18/
2011), p. 96; 329 (1/21/2011), p. 259). For example, CSG said:
[C]ages should not be used as an individual method of fall
protection, but only in conjunction with a personal fall arrest/
cable-and-rail system or a twin-leg lanyard. CSG recognizes that a
cage system allows a measure of security. However, if a person does
fall in a cage, OSHA is correct that the cage will direct the person
to the ground, likely resulting in a severe injury or fatality (Ex.
198).
ISEA agreed with CSG (Ex. 185). The Oregon Department of
Transportation (DOT) added:
Ladder cages are an old technology used for decades before
ladder safety systems were ever developed . . . [C]ages and wells
are designed to ``. . . contain employees in the event of a fall and
direct them to a lower landing.'' Cages provide little fall
protection and no fall prevention. They do give a sense to the
climber of being contained, and do provide a surface to rest against
for a winded climber, but will not prevent a fall. Falls in cages
can be very gruesome with the faller entangling themselves in the
cage as they fall, sometimes tearing off body parts (Ex. 113).
Similarly, Ellis testified that OSHA should prohibit the use of
cages and wells for fall protection because he said they are
ineffective:
[T]his may be the time to withdraw cages since they are
ineffective. I refer to the [Health and Safety Executive] Report on
their website relating to cages and the testing that's being done to
show that they're incapable of stopping falls. It may not be OSHA's
best move to keep citing a device that fails to work which most
people would admit that you're not get stopped in a fall. The best
that happens in a fall inside a cage is to be a--have a feeling of
being contained. . . . (Ex. 329 (1/21/2011, p. 259)).
The Health and Safety Executive (HSE) report Ellis cited was
[[Page 82603]]
``Preliminary investigation into the fall-arresting effectiveness of
ladder safety hoops'' (Research Report 258-2004).\53\
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\53\ The HSE Report is available at http://www.hse.gov.uk/research/rrpdf/rr258.pdf.
---------------------------------------------------------------------------
The Executive Summary states:
After studying the information from the references, the survey,
from the accident database and the results from testing, it seems
clear that caged ladders cannot provide positive fall-arrest
capability, especially in the case of the three-upright design which
was tested as part of this research. There is every possibility of a
fall down the cage to the ground or other platform.
There would appear, or so it seems, a possibility to stop the
fall of a worker in certain circumstances, but this depends upon the
attitude of the worker both before the fall and during the fall, and
whether or not the worker manages to catch part of his or her body
in one of the cage apertures, or manages to trap themselves in the
cage some other way. In any event, it is a chance occurrence, and
the opinion is that even if the worker could be caught by the cage,
it could lead to significant if not fatal injury.
The accidents reviewed indicate that workers fall down cages to
the next level and are rarely caught. Injuries have been reported.
Even if a fall is halted by limb entanglement within a cage, rescue
would be extremely difficult process to carry out successfully (Ex.
392).
OSHA believes there is substantial evidence in the rulemaking
record to support eliminating the use of cages and wells as a means of
fall protection on fixed ladders. Therefore, for the reasons discussed
above, OSHA is phasing out their use and requiring that employers equip
fixed ladders with ladder safety systems or personal fall arrest
systems according to the schedule established in final paragraph
(b)(9)(i).
OSHA believes that gradually phasing out the use of cages and wells
as a means of fall protection over 20 years and requiring employers to
provide ladder safety systems/personal fall arrest systems
prospectively (that is, when installing new fixed ladders or replacing
a portion of an existing fixed ladder section) is a safe, cost-
effective way to increase worker protection beyond the existing and
proposed rules, and will not pose difficulties or undue burdens for
employers. For example, ladder safety and personal fall arrest systems
generally are less costly and easier to install on fixed ladders than
cages and wells. OSHA believes that providing 20 years to phase out
cages and wells gives employers ample time to plan and carry out this
transition as part of their normal business and replacement cycles,
instead of retrofitting fixed ladders. According to the FEA, the useful
life of a large majority of fixed ladders will be exhausted within 20
years.
Several stakeholders specifically recommended that OSHA
prospectively require new fixed ladder be equipped with ladder safety
systems/personal fall arrest systems (Exs. OSHA-S041-2006-0666-0198;
113; 329 (1/21/2011), p. 18-19). For example, Siebe North supported
installing ladder safety systems/personal fall arrest systems ``in the
design stage'' because ``ladder safety devices can be engineered into
and installed as part of the original ladder installation without any
extra hazardous exposure to the installation workers,'' adding that
``well or cage installations hazards will always be significantly
greater than the installation hazards for ladder safety devices'' (Ex.
OSHA-S041-2006-0666-0198). The American Wind Energy Association said:
Technology in fall protection has developed to the point where
suitable solutions exist for the protection of climbers for fixed
ladders. At a minimum, new installation of fixed ladders, that meet
the trigger heights and length listed, should include falling-object
for workers regardless of the industry. The wind industry is an
example of a new industry that has embrace ladder-climbing systems
across-the-board (Ex. 329 (1/21/2011), pgs. 18-19).
Siebe North also indicated that requiring employers to install
ladder safety systems/personal fall arrest systems instead of cages/
wells was cost effective, ``For a 50-foot climb, a ladder safety device
would cost about $500 installed, but a case or well would cost in
excess of $1,500'' (Ex. OSHA-S041-2006-0666-0198). Clear Channel
Outdoor indicated that equipping billboard ladders with ladder safety
systems/personal fall arrest systems would cost significantly less than
installing cages and wells (Ex. 329 (1/18/2011), pgs. 134-35). Ameren
Corporation recommended grandfathering in all existing ladders ``due to
the potential financial impact'' (Ex. 189).
As mentioned, OSHA believes the prospective application of the
requirement to equip fixed ladders with ladder safety systems or
personal fall arrest systems will not pose financial hardship on
employers. According to CSG, it is ``common'' for fixed ladders
manufactured today to be equipped with ladder safety systems (Ex. 329
(1/18/2011), p. 104).
As mentioned, final paragraph (b)(9)(i) also establishes the cage
and well phase-out dates for existing, new, replacement, and eventually
all fixed ladders (i.e., a final deadline when employers may no longer
use cages and wells as a means of fall protection on any fixed ladder):
Existing fixed ladders.\54\ Final paragraph (b)(9)(i)(A) requires
that employers ensure existing fixed ladders are equipped with at least
one of the following four devices no later than November 19, 2018:
---------------------------------------------------------------------------
\54\ For purposes of final paragraph (b)(9)(i)(A), the term
``existing fixed ladder'' includes any fixed ladder installed before
November 19, 2018.
---------------------------------------------------------------------------
A cage;
A well;
A ladder safety system; or
A personal fall arrest system.
Although the existing rule requires that employers already must
have installed cages or wells on fixed ladders, the record indicates
some have not. Therefore, OSHA is giving employers two years to come
into compliance with the existing rule (existing Sec. 1910.27).
Providing two years will ensure that employers have adequate time to
order and install devices on fixed ladders and will reduce costs for
employers who have ordered and not yet installed new fixed ladders
equipped with cages or wells. Although the final rule is phasing out
the use of cages and wells as a fall protection device, final paragraph
(b)(9)(i) allows employers to continue to use existing fixed ladders
that have a cage or well, but not ladder safety or personal fall arrest
system, until:
The fixed ladder, cage, or well, of portion of it is
replaced (final paragraph (b)(9)(i)(C)); or
November 18, 2036 (final paragraph (b)(9)(i)(D)),
whichever comes first.
This means that employers may not have to install ladder safety or
personal fall arrest systems on their existing fixed ladders for up to
20 years. However, OSHA believes that many employers already have
installed ladder safety systems and personal fall arrest systems or
will install those systems long before the 20-year deadline comes due.
Like final paragraph (b)(9)(i)(A), ANSI/ASC A14.3-2008 (Section
1.6.1) generally permits employers to use existing fixed ladders
without change. The requirements of ANSI/ASC A14.3-2008 do not apply to
existing fixed ladders, provided that the ladder was in compliance with
a Federal, state, or national consensus standard at the time it was
installed and there is documentation available to substantiate that
(Section 1.6.1(1)), or a person competent in structural design
determines that any differences in the existing ladder are such that
its performance ``will not substantially deviate from the
requirements'' of ANSI/ASC A14.3-2008 (Section 1.6.1(2)).
[[Page 82604]]
OSHA believes that most fixed ladders, except for some used in
outdoor advertising, already have at least one of the four devices
final paragraph (b)(9)(i)(A) requires and, therefore, will be able to
continue using those ladders under the final rule. At a minimum, OSHA
believes that most existing fixed ladders have cages or wells, which
the existing rule (Sec. 1910.27(d)(1)(i)) has required since the
Agency adopted it pursuant to section 6(a) of the OSH Act (29 U.S.C.
655(a)). Evidence discussed in the FEA also indicates that a
significant percentage of employers already have ladder safety or
personal fall arrest systems on existing fixed ladders.
For fixed ladders that do not have any fall protection, which
appears to be the case in the outdoor advertising industry, final
paragraph (b)(9)(i)(A) requires that employers install a cage, well,
ladder safety system, or personal fall arrest system before November
19, 2018. OSHA believes that most of those employers will install
ladder safety or personal fall arrest systems during that time. First,
according to the FEA, those systems generally are less expensive than
cages or wells. Second, even ANSI/ASC A14.3-2008 requires the use of
ladder safety systems for some climbs (Sections 4.1.3, 4.1.4, 4.1.4.2).
However, the Agency notes that employers also will be in compliance if
they install cages or wells on existing fixed ladders during the first
two years after the final rule is published.
One commenter, Ameren, said OSHA should make allowances for
employers who have ordered fixed ladders but not yet received and
installed them (Ex. 189). They said that it may take up to one year to
receive a fixed ladder after placing the order. Final paragraph
(b)(9)(i)(A) gives employers two years to install fall protection
devices on their fixed ladders. As mentioned, OSHA considers ladders
installed during this two-year period to be ``existing fixed ladders,''
which means employers may install any of the four devices specified in
final paragraph (b)(9)(i)(A). Thus, employers will not have to change
their orders if they purchased fixed ladders equipped with a well or
cage. That said, OSHA believes many employers will change their orders
to ladder safety or personal fall arrest systems which are less
expensive than cages and wells and brings employers into compliance
with final paragraph (b)(9)(i)(D) without having to make changes when
the final phase-out deadline comes due.
New fixed ladders. Final paragraph (b)(9)(i)(B) requires that
employers ensure new fixed ladders they install on and after November
19, 2018 are equipped with a ladder safety system or personal fall
arrest system. Requiring that new fixed ladders, rather than existing
fixed ladders, be equipped with ladder safety or personal fall arrest
systems makes the final rule primarily prospective. OSHA believes that
employers should not have any difficulty complying with this approach.
OSHA believes virtually all new fixed ladders manufactured and
installed today are available with ladder safety and personal fall
arrest systems. Allowing employers two years to begin equipping new
fixed ladders with ladder safety or personal fall arrest systems gives
employers adequate time to identify companies that manufacture fixed
ladders equipped with these systems. OSHA notes that the 2-year phase-
in also gives ladder manufacturers time to ensure their ladder safety
and personal fall arrest systems comply with the personal fall
protection system criteria in the final rule (final Sec. 1910.29).
OSHA points out that final paragraph (b)(9)(i)(B) does not prohibit
employers from also installing cages and wells on new fixed ladders in
addition to ladder safety or personal fall arrest systems. Cages and
wells can provide a way for workers to rest while they are climbing and
working on fixed ladders. However, OSHA stresses that employers may not
use cages and wells instead of providing ladder safety and personal
fall arrest systems. In addition, employers must ensure that the cages
and wells are compatible with and do not interfere with the ladder
safety or personal fall arrest systems. (See final paragraph (b)(9)(iv)
for further discussion.)
Unlike final paragraph (b)(9)(i)(B), ANSI/ASC A14.3-2008 does not
require that employers ensure new fixed ladders they install are
equipped with ladder safety systems or personal fall arrest systems;
but rather allows employers to install new ladders that only have cages
or wells in some situations. For example, that standard allows
employers to install new fixed ladders equipped with only cages where
the length of any climb is less than 24 feet even though the top of the
ladder is at a distance greater than 24 feet above a lower level
(Section 4.1.2). Similarly, A14.3-2008 allows employers to install only
cages or wells on new multiple-section fixed ladders that do not have a
single length of climb exceeding 24 feet, provided each ladder section
is offset horizontally from adjacent sections and there is a landing
platform for safe access/egress (Section 4.1.4.1). That standard only
requires employers to use ladder safety systems when a single length of
climb exceeds 24 feet (Section 4.1.3) or the length of climb on
multiple section ladders exceeds 50 feet (Section 4.1.4.2).
Final paragraph (b)(9)(i)(B) does not adopt the approach in ANSI/
ASC A14.3-2008. As discussed above, evidence in the record shows that
cages and wells do not prevent workers from falling off ladders or
protect workers from injury if they fall (e.g., Exs. 113; 155; 185;
198; OSHA-S041-2006-0666-0198). OSHA believes the final rule, requiring
that employers ensure new fixed ladders are equipped with ladder safety
systems or personal fall arrest systems, is more protective than ANSI/
ASC A14.3-2008. In addition, OSHA believes the final rule is easier to
understand and follow than specifying the type of fall protection
employers must provide based on the length of the worker's climb, as
A14.3-2008 requires.
Replacement. Final paragraph (b)(9)(i)(C) requires that employers
ensure when a fixed ladder, cage, or well, or any portion of a section
thereof is replaced, a personal fall arrest system or ladder safety
system is installed in at least that section of the fixed ladder, cage,
or well where the replacement is located. Unlike final paragraph
(b)(9)(i)(B), which does not become effective until November 19, 2018,
any replacement installed after the final rule becomes effective, which
is January 17, 2017, must be equipped with a ladder safety system or
personal fall arrest system.
Final paragraph (b)(9)(i)(C) does not require that employers
install ladder safety or personal fall arrest systems when they make
minor repairs to fixed ladders, cages, or wells, such as replacing a
bolt or repairing a weld on a cage. However, when employers determine
that they cannot simply make a repair to a section or a portion of a
section of a fixed ladder, cage, or well but must replace that portion
or section, employers must ensure the replacement is equipped with a
ladder safety or personal fall arrest system. OSHA believes the
inspection requirement in final Sec. 1910.22(d) will help employers
identify when simple repairs or corrections will be adequate and when
the situation, such as a condition that affects the structural
integrity of the fixed ladder, cage, or well, necessitates replacement
of the fixed ladder, cage, or well section.
OSHA also notes that when ``a portion of a section'' of a fixed
ladder, cage, or well needs replacement, the final rule only requires
the employer to install a ladder safety or personal fall arrest system
in that ``section of the fixed ladder, cage, or well where the
replacement is located.'' The final rule
[[Page 82605]]
does not require employers to install a ladder safety or personal fall
arrest system on the entire fixed ladder when a portion of one section
needs replacement. For example, only part of a 50-foot section of a
cage, well or multi-section ladder might need replacement because of
damage. Final paragraph (b)(9)(i)(C) only requires that the employer
replace that 50-foot section of the ladder, cage, or well with a ladder
safety system or personal fall arrest system, not all sections. OSHA
believes that a ``section'' of a fixed ladder equipped with a cage or
well most likely will not exceed 50 feet. In this regard, ladder
sections are the length of ladder between landings or platforms, and
final paragraph (b)(9)(iii) requires that fixed ladders that have cages
or wells must have landing platforms at least every 50 feet.
The approach ANSI/ASC A14.3-2008 follows when existing fixed
ladders are replaced, modified, or repaired differs from the final rule
in two respects. First, when existing fixed ladders are replaced,
modified, or repaired, the ANSI/ASC standard specifies that employers
may install cages or wells instead of ladder safety systems or personal
fall arrest systems in some situations (see discussion of final
paragraph (b)(9)(i)(B)). Second, the ANSI/ASC standard requires that
employers only have to install cages, wells, or ladder safety systems
when they make repairs to more than 25 percent of the whole ladder.
OSHA believes that requiring employers to install personal fall arrest
or ladder safety systems when repairs necessitate replacement of a
portion of a fixed ladder, cage, or well is more protective than
allowing employers to wait until more than 25 percent of the fixed
ladder is in need of repair. In fact, the final rule prohibits that
approach. Section 1910.22(d)(2) requires that hazardous conditions be
repaired immediately and, if that is not possible, guarded so workers
cannot use the walking-working surface until it is fixed (final Sec.
1910.22(d)(2)). Moreover, as discussed above, the record indicates that
installing ladder safety systems or personal fall arrest systems
instead of cages or wells also is more protective.
Again, this provision does not prohibit employers from keeping
those portions of a cage or well that are functioning properly, or
installing a new cage or well, provided the employer also installs a
personal fall arrest or ladder safety system as final paragraph
(b)(9)(i)(B) requires, and the cage or well does not interfere with the
fall protection system.
Final deadline. Finally, final paragraph (b)(9)(i)(D) establishes
the final deadline for employers to ensure that all fixed ladders that
extend more than 24 feet above a lower level are equipped with ladder
safety or personal fall arrest systems, which, as mentioned, is 20
years after OSHA publishes the final rule. By that date (November 18,
2036), and thereafter, employers must ensure that all fixed ladders are
equipped with personal fall arrest or ladder safety systems, even if
the ladders have cages or wells.
OSHA set the extended phase-out period to take into account normal
replacement and average useful life of fixed ladders, cages, and wells.
After 20 years, OSHA estimates that the large majority of fixed ladders
will have been replaced or in need of replacement. Even ANSI/ASC A14.3-
2008 notes that while ``[fixed] ladders are designed for extended
service,'' they ``are neither designed nor intended to possess an
infinite safe useful life'' (Section 9.1.3).
OSHA also believes the extended phase-out lessens the compliance
burden on employers, provides a smooth transition to update ladder
systems, and allows employers to install ladder safety and personal
fall arrest systems according to normal replacement schedules. In
addition, OSHA believes that, through replacement and new
installations, the vast majority of fixed ladders will have ladder
safety or personal fall arrest systems before the time the final
deadline arrives.
Final paragraph (b)(9)(ii) adds new requirements for one-section
fixed ladders that are equipped with personal fall arrest systems or
ladder safety systems and fixed ladders equipped with those systems on
more than one ladder section. For these ladders, the final rule
requires that employers ensure:
The personal fall arrest or ladder safety system provides
protection throughout the entire vertical distance of the ladder,
including all ladder sections (final paragraph (b)(9)(ii)(A)); and
The ladder has rest platforms provided at least every 150
feet (final paragraph (b)(9)(ii)(B)).
In final paragraph (b)(9)(ii)(A), OSHA clarified the proposed
language (``vertical distance'') so the Agency could eliminate the need
for the proposed note to paragraph (b)(9). OSHA stresses that the
entire vertical distance of a fixed ladder includes all sections of a
ladder, as well as any vertical distance in between ladder sections
(sometimes referred to as ``entire length of climb''). This means that
employers must protect workers for the entire vertical distance of
fixed ladders equipped with ladder safety or personal fall arrest
systems. The final provision also addresses the hazard of attempting to
connect to a ladder safety or personal fall arrest system part way
through a climb (i.e., at 24 feet), which would require that the worker
release one hand from the ladder, and thereby increase the risk of
falling. This requirement is consistent with the construction fall
protection standard and ANSI A14.3-2008 (Section 7.1.6).
OSHA notes that final paragraph (b)(9)(ii)(A) does not apply when
only one section of a multiple-sectioned fixed ladder has a personal
fall arrest system or ladder safety system and the other sections have
only cages or wells. In this case, final paragraph (b)(9)(i)(C)
applies, and employers need only ensure that the ladder safety or
personal fall arrest system protects the worker during that section of
the climb. However, when one-section fixed ladders and multiple
sections of a fixed ladder have a ladder safety or personal fall arrest
system, final paragraph (b)(9)(ii)(A) applies, and the employer must
ensure the system protects the worker throughout the entire climb. The
Agency does not believe that complying with final paragraph
(b)(9)(ii)(A) should pose difficulties for employers. Rather, OSHA
believes that if employers must install a ladder safety or personal
fall arrest system, it is likely they will install the system on the
entire fixed ladder (including all ladder sections). This is
particularly true if the employer anticipates that other sections of
the fixed ladder, cage, or well also will need replacement at some
point.
Paragraph (b)(9)(ii)(B), like the proposal, requires that employers
ensure fixed ladders that have personal fall arrest or ladder safety
systems also have landing platforms at intervals of at least every 150
feet. This final provision generally is consistent with OSHA's
construction ladder standard and ANSI A14.3-2008. OSHA's ladder
standard for construction requires that fixed ladders with self-
retracting lifelines have rest platforms every 150 feet, while the ANSI
standard requires that fixed ladders equipped with ladder safety
systems have rest platforms at the same intervals (Section 4.1.4.2).
OSHA received no comments on the proposed provision and finalizes it as
discussed.
Final paragraph (b)(9)(iii), like proposed paragraph (b)(9)(ii)(C),
applies during the gradual phase out of cages and wells. The final rule
requires that employers ensure ladder sections that have cages or
wells:
[[Page 82606]]
Are offset from adjacent sections (final paragraph
(b)(9)(iii)(A)); and
Have landing platforms provided at maximum intervals of 50
feet (final paragraph (b)(9)(iii)(B)).
Final paragraph (b)(9)(iii) is the same as the ladder standard for
construction (Sec. 1926.1053(a)(19)(iii)). ANSI/ASC A14.3-2008
requires that each section of multiple section ladders equipped with
only cages or wells be horizontally offset from adjacent sections and
have landing platforms to provide safe access/egress (Section 4.1.4.1).
Figure 5a in the A14.3 standard specifies platform landings at
intervals of at least 50 feet. The existing rule in Sec.
1910.27(d)(2), however, requires landing platforms at 30-foot intervals
if the fixed ladder has a cage or well, and at 20-foot intervals when
there is no cage or well. OSHA based the existing rule on the ANSI
A4.13-1956 rule in effect at the time. OSHA believes that making final
paragraph (b)(9)(iii) consistent with the construction ladder
requirements and the current ANSI A14.3-2008 standard will allow
workers who perform both general industry and construction activities
to use the same fixed ladders while cages and wells are being phased
out. OSHA notes that once employers equip fixed ladders with a ladder
safety or personal fall arrest system this provision no longer applies,
even if the ladder also still has the cage or well.
David Hoberg, with DBM Consultants, supported the provision
requiring that fixed ladders have landing platforms, stating:
[H]aving climbed ladders of up to 125 feet and supervised
persons using them, you would not believe the difference a landing
makes. A hand cramping stops the climb. And try climbing a ladder as
a first responder wearing 100 lbs. of gear where there is no landing
to stage equipment or rest or take action (Ex. 206).
The provision is finalized with minor reorganization for clarity.
Final paragraph (b)(9)(iv) is a new provision OSHA added to the
final rule that allows employers to use cages and wells in combination
with personal fall arrest and ladder safety systems, provided the cages
and wells do not interfere with the operation of the system. The
proposed rule did not specifically address this issue, but ANSI A14.3-
2008 (Section 4.1.6) allows the use of ladder safety systems in
combination with a cage. OSHA is adding this provision to clarify that
employers do not have to remove cages or wells when they install a
required ladder safety or personal fall arrest system, provided the
cage or well does not interfere with the operation of the required
ladder safety or fall protection system. If a cage or well prevents a
personal fall arrest or ladder safety system from operating properly,
then the employer must remove the cage or well to protect workers from
falling or otherwise incurring an injury.
OSHA received one comment about using ladder safety or personal
fall arrest systems in combination with cages or wells. Ellis urged
that OSHA prohibit the use of ladder safety devices inside ladder cages
because the rear bars of ladder cages can ``pitch the body forward
which is tantamount to free fall'' (Ex. 155). The Agency believes that
the language addressing interference in final paragraph (b)(9)(iv)
resolves Ellis' concern without limiting employer flexibility or
compromising worker safety.
Outdoor advertising. Final paragraph (b)(10) addresses fall hazards
on fixed ladders used in outdoor advertising (billboards). Final
paragraph (b)(10), in combination with final paragraph (b)(9), revises
the proposed rule to require that employers ensure their workers use
fall protection while climbing fixed ladders that extend more than 24
feet above a lower level. This provision ensures that workers in
outdoor advertising will have the same protection from fall hazards as
other general industry workers who climb fixed ladders.
The effect of the final rule is to phase out the fall protection
exception that OSHA established in the 1991 Gannett variance (56 FR
8801 (3/1/1991)) and the 1993 directive extending the variance to the
entire outdoor advertising industry (Fixed Ladders Used on Outdoor
Advertising Structures/Billboards in the Outdoor Advertising Industry,
STD 01-01-014 (1/26/1993)). (Hereafter, the Gannett variance and OSHA
directive are collectively referred to as ``outdoor advertising
directive.'') The outdoor advertising directive excepted that industry
from complying with existing requirements that fixed ladders have cages
or wells (existing Sec. 1910.27(d)(1)(ii)), and landing platforms
(existing Sec. 1910.27(d)(2)). The effect of the directive is that
workers in the outdoor advertising industry may climb fixed ladders, in
some situations, without conventional fall protection (e.g., cages,
wells, and ladder safety and personal fall arrest systems), provided
employers ensure that:
Each worker wears a safety belt or harness with an
appropriate 18-inch rest lanyard when climbing up to 50 feet or heights
up to 65 feet from grade on a combination ladder consisting of a
portable ladder and a fixed ladder;
Each worker keeps both hands free of tools or materials
when climbing;
Each worker uses a ladder safety system for climbs on
fixed ladders that exceed 50 feet or when the ladder ascends to heights
that exceed 65 feet above grade;
Each worker who climbs fixed ladders equipped with ladder
safety devices uses those devices properly and follows appropriate
procedures for inspection and maintenance of those devices;
The employer ensures proper maintenance and use of ladder
safety devices that are installed on fixed ladders;
Each worker uses an appropriate fall protection system
after reaching the work position; and
Each qualified climber receives training and demonstrates
the physical capability to perform necessary climbs safely. In this
regard, the employer must ensure that: The worker's physical condition
is such that climbing will not impair the worker's health or safety;
the worker completes training consisting of classroom training,
observing an experienced qualified climber, and actual climbing under
close supervision using redundant safety equipment; and the worker
works without fall protection only after demonstrating the necessary
ability and skill in climbing (STD 01-01-014).
The proposed rule would have codified the specifications contained
in the outdoor advertising directive, thus allowing outdoor advertising
workers to continue climbing fixed ladders without fall protection so
long as they complied with all of the provisions the directive
included.
The final rule, however, does not adopt the proposal. Instead,
final paragraph (b)(10)(i) specifies that the fall protection
requirements for fixed ladders in final paragraph (b)(9) also apply to
fixed ladders used in outdoor advertising. This means that outdoor
advertising employers must ensure, in accordance with final paragraph
(b)(9)(i)(A), that fixed ladders are equipped with a ladder safety
system, personal fall arrest system, cage, or well before November 19,
2018. In addition, they must follow the schedule in final paragraph
(b)(9)(i) for gradually phasing in the installation of ladder safety
and personal fall arrest systems on fixed ladders.
Final paragraph (b)(10)(i) also requires that employers in outdoor
advertising follow other provisions in revised subparts D and I, such
as the inspection and maintenance requirements in final Sec. 1910.22,
the training requirements in final Sec. 1910.30, and the criteria for
personal fall protection systems in Sec. 1910.140.
[[Page 82607]]
Final paragraph (b)(10)(ii) establishes the requirements that
outdoor advertising employers must follow during the phase-in period
(two years) they have to install a cage, well, ladder safety system or
personal fall arrest system. During this period when outdoor
advertisers have not yet installed fall protection, employers must
ensure that each worker:
Receives training and demonstrates the physical capability
to perform the necessary climbs in accordance with final Sec.
1910.29(h) (final paragraph (b)(10)(ii)(A));
Wears a body harness equipped with an 18-inch rest lanyard
(final paragraph (b)(10)(ii)(B));
Keeps both hands free of tools or material while climbing
the fixed ladder (final paragraph (b)(10)(ii)(C)); and
Is protected by a fall protection system upon reaching the
work position (final paragraph (b)(10)(ii)(D)).
The requirements in final paragraph (b)(10)(ii) are limited and
temporary. First, they only apply to fixed ladders used in outdoor
advertising that are not equipped with any type of fall protection.
Once a fixed ladder used for outdoor advertising is equipped with one
of these systems, the requirements in final paragraph (b)(10)(ii) no
longer apply. Instead, the requirements in final paragraphs (a) and
(b)(9), final Sec. 1910.29, and final Sec. 1910.140 apply to outdoor
advertising employers and fixed ladders used in outdoor advertising.
Second, final paragraph (b)(10)(ii) is only a temporary provision.
It is applicable only before November 19, 2018. As of November 19,
2018, final paragraph (b)(9)(i)(A) requires that employers must ensure
all existing fixed ladders, including those used for outdoor
advertising activities, are equipped with a cage, well, ladder safety
system, or personal fall arrest system. Thus, as of November 19, 2018,
the requirements in final paragraph (b)(10)(ii) no longer apply and the
provision, in essence, expires. In their place, as stated above, the
requirements in paragraphs (a) and (b)(9), as well as other fall
protection system requirements in the final rule, apply to outdoor
advertising employers. OSHA notes that the requirements in final Sec.
1910.29(h), which apply when workers climb fixed ladders without fall
protection to perform outdoor advertising activities, also are
temporary. As of November 19, 2018, the requirements in Sec.
1910.29(h) no longer will apply since, in accordance with final
paragraph (b)(9)(i)(A), all fixed ladders used for outdoor advertising
will be required to be equipped with a personal fall arrest system,
ladder safety system, cage, or well.
Final paragraph (b)(10)(ii)(A) requires that outdoor advertising
employers ensure that each worker who climbs a fixed ladder that is not
equipped with a personal fall arrest system, ladder safety system,
cage, or well, receives training and demonstrates the physical ability
to climb fixed ladders. Employers may comply with the training final
paragraph (b)(10)(ii)(A) requires by ensuring that workers have
completed a training or apprenticeship program, provided the program
includes hands-on training on climbing ladders safely, performance
observation combined with formal classroom or on-the-job training, and
retraining as necessary (final Sec. 1910.29(h)(2) and (3)).
OSHA notes that employers must ensure the requirement in final
paragraph (b)(10)(ii)(A) to demonstrate physical capability must
include either a physical examination or observation of the worker
performing actual climbing activities (final Sec. 1910.29(h)(1)).
Final Sec. 1910.29(h) discusses in detail the training and physical
capacity requirements in final paragraph (b)(10)(ii)(A). OSHA notes
that this training is in addition to the training outdoor advertising
employers must provide to their workers under final Sec. 1910.30.
Final paragraph (b)(10)(ii)(B) requires that outdoor advertising
employers ensure workers who climb fixed ladders without fall
protection wear body harnesses equipped with an 18-inch rest lanyard.
OSHA's intention in requiring that outdoor advertising workers wear
body harnesses with rest lanyards is that employers must ensure workers
tie off to the fixed ladder when they need to rest during the climb.
The final rule differs from proposed (b)(10)(i) and outdoor
advertising directive, both of which permit outdoor advertising
employers to provide a body harness or body belt for workers to use for
resting during a climb. However, as discussed in final Sec. 1910.140,
the final rule does not permit the use of body belts as a part of a
personal fall arrest system; thus, OSHA deleted body belts from final
paragraph (b)(10)(ii)(B). This revision also makes the final provision
consistent with OSHA's construction industry rule, which also does not
allow use of body belts for personal fall arrest (Sec. 1926.502(d)).
Final paragraph (b)(10)(ii)(C) requires employers to ensure that
workers engaged in outdoor advertising keep both hands free of tools or
material when climbing fixed ladders. This requirement ensures that
workers use their hands exclusively for climbing and not carrying tools
and material up and down fixed ladders. When workers climb fixed
ladders without fall protection, it is essential that they maintain
balance and body control. Carrying tools and materials in their hands
while they climb may cause workers to lose their balance, which could
result in a fall. Both the proposed rule at paragraph (b)(10)(vi) and
the outdoor advertising directive include this requirement. In
addition, it is consistent with final paragraphs Sec. 1910.23(b)(12)
and (13), the construction standard (Sec. 1926.1053(b)(21) and (22)),
and ANSI A14.3-2008 (Section 9.2.1 and 9.2.2).
Final paragraph (b)(10)(ii)(D), like the proposed rule at paragraph
(b)(10)(vii) and the outdoor advertising directive, requires outdoor
advertising employers to provide workers who climb fixed ladders with,
and ensure that they use, a fall protection system once they reach the
work position/platform. Thus, when workers step onto the work platform,
they must be tied off or otherwise protected from falling (e.g.,
guardrails). OSHA believes this requirement is necessary because
outdoor advertising employers typically install platforms at great
heights. The final provision allows employers to use any type of fall
protection system specified by final paragraph (b)(1) to protect
workers from falling off an unprotected side or edge, including
guardrail, safety net, travel restraint, positioning, or personal fall
arrest systems.
OSHA requested comment in the proposed rule about eliminating the
qualified climber exception for the outdoor advertising industry and
instead require fixed ladders used in outdoor advertising to be
equipped with the same fall protection as other fixed ladders under the
general industry standard (75 FR 28869). In response, OSHA received
many comments. A number of commenters, including several fall
protection equipment manufacturers, safety organizations, and safety
professionals who provide fall protection services, opposed retaining
the qualified climber exception in the final rule (Exs. 155; 185; 198;
250). For several reasons, these commenters opposed including in the
final rule a qualified climber exception for any industry. These
reasons included the dangers of climbing without fall protection; the
questionable need for the qualified climber exception in the outdoor
advertising industry when compared to other industries; and the ready
availability of feasible and easy to use fall protection (e.g., Exs.
155; 185; 198; 205; 250). For example, American Society of Safety
Engineers (ASSE) said:
[[Page 82608]]
The idea that it is somehow acceptable to climb high distances
without fall protection contradicts OSHA's proposed fixed ladder
standard requiring a ladder safety system or a cage/well when the
total length of a climb exceeds 24 feet. Our members fail to
understand why fixed ladders between 24-50 feet in height used in
outdoor advertising should be different than other industry ladders
used at the same heights. Further, the technology is readily
available to provide protections for the fixed ladder (Ex. 127).
ISEA and CSG also voiced opposition to a qualified climber
exception for outdoor advertising:
Their situation is not unique. Right now there are many systems
available to provide fall arrest as soon as these workers leave the
ground. In fact, this type of equipment is used today, so the burden
on employers is slight.
OSHA asks about technological and economic feasibility of fall
protection for this type of work. Because this industry is
constantly improving its offerings and developing new solutions for
employers and employees, it is safe to say there has been marked
improvement in ladder systems over the past 20 years. In addition,
ladder climbing systems are becoming increasingly common.
Finally, Assistant Secretary Michaels has been speaking about
fostering a greater culture of safety in U.S. workplaces. Providing
an exemption from use of fall protection for those working at
dangerous heights seems to run counter to this message (Exs. 185;
198).
The Society of Professional Rope Access Technicians (SPRAT) agreed,
saying:
[I]n light of advances in technology and accepted practices for safe
alternatives such as Rope Access, twin lanyards, and lead climbing,
elimination of the Qualified Climber provision may be timely and
appropriate. Variations on these concepts are already accepted
methodologies in international fall protection regulations,
including ISO, BSA, and Australia. Granted, a 100% tie-off approach
may be onerous to implement all at once, but implementation could be
phased over several years to help ameliorate the impact (Ex. 205).
Ellis made a similar comment:
This concept of a safe climber who does not need fall protection
on ladders or step bolts for climbing towers is a timeworn concept
whose day has passed. Protection should be required. Use of rope
access teams for work at heights . . . and always using fall
protection is what has already arrived in many countries of the
world including most of Europe, Australia and South Africa (Ex.
155).
Finally, Damon, Inc., opposed the qualified climber exception
because it suggests that older, experienced workers climb better with
age while data actually shows that ``older workers have a
disproportionate share of fatal falls from ladders'' (Ex. 250).
Many commenters, primarily those in the outdoor advertising
industry (Exs. 121; 260; 359; 369) and employees of Lamar Advertising
(Lamar) (e.g., Exs. 75; 80; 81; 82; 83; 84; 85; 86; 87; 88; 89; 90; 91;
92; 93; 94; 95; 99; 104; 105; 106; 128), supported codifying the
outdoor advertising directive for fixed ladders used in outdoor
advertising. For example, Clear Channel Outdoor, Inc. (CCO), and the
Outdoor Advertising Association of America (OAAA) supported codifying
the outdoor advertising directive because the industry has been
operating under it for over two decades (Exs. 121; 329 (1/18/2011, pgs.
113-116)). Many Lamar employees also said they followed the
requirements of the outdoor advertising directive for more than two
decades and are familiar with the requirements. In this regard, Joseph
Shopshear, a Lamar operations manager, said Lamar based its worker
safety programs on the Gannett variance, and that ``[t]he Gannett
Variance is a very important first step in our safety program and other
safety related programs and has been since my employment began with
Lamar'' (Ex. 81). Similarly, William DeVine, another Lamar operations
manager, said the Gannett variance is the ``forefront'' of the
company's safety meetings, the qualified climber qualifications, and
the ``backbone'' of their training program (Ex. 94). Therefore, he:
[U]rge[s] OSHA to allow this variance to remain in effect. Any other
legislation could immediately affect my job and others around me . .
. I do support the Gannet[t] Variance wholeheartedly and request
that it remain permanent in the newest legislation . . . The Gannett
Variance as written will continue to protect me and my fellow
climbers and provide the safest of work environments . . . (Ex. 94)
Several commenters said that OSHA should codify the qualified
climber exception for outdoor advertising because they have not
experienced any fatalities related to climbing fixed ladders without
fall protection, and falls are ``extremely rare'' (Exs. 106; 260; 329
(1/18/2011, pgs. 113-19); 369). For example, Mike Gentile, another
Lamar operations manager, said, ``There has been over a million climbs
made by all billboard personnel in California in the past ten (10)
years on fixed ladders. To date, I am not aware of one single fall''
(Ex. 106). CCO, which asserted in its comments on the proposed rule
that ``CCO employees simply do not fall from fixed ladders'' (Ex. 121),
expanded on this assertion in its post-hearing comments, stating:
The past eighteen years has clearly established that the Gannett
Variance works very well for this industry. There have been zero
fatalities and industry is aware of only one fall from a fixed
ladder, one, despite literally millions of climbs. The hard evidence
proves that the variance works and the numbers could only get worse
if the variance is not codified into the new regulations (Ex. 369).
OAAA, reporting on information from industry members, said, ``From
a safety standpoint, our companies report that no deaths due to falls
from fixed ladders have occurred in the past five years; of the
15,840,000 climbs over the past 5 years, our companies are aware of
only one fall from a fixed ladder'' (Ex. 260). OAAA estimated that its
members, which it said comprise 90 percent of the market, have a total
of 1,800 climbers.
The International Sign Association (ISA) also supported retaining
the qualified climber exception because of the industry's safety
record, noting, ``It is our understanding that the safety record of
outdoor advertising professionals has been excellent over the last
decade, and that changing the rule would impose unnecessary costs and
technical requirements'' (Ex. 161).
CCO said it would be too costly to retrofit fixed ladders with fall
protection (Exs. 121; 369). They claimed that it would cost the company
in excess of $80 million to retrofit its 60,000 existing structures
(Ex. 121).\55\ In its post-hearing comments, CCO revised and
supplemented its cost information on retrofitting fixed ladders with
fall protection, noting, ``[T]he installation of cages and wells would
cost approximately $1,400 for first 20 feet and $1,050 for each twenty
foot section after. Accordingly the cost depends upon the height of the
unit'' (Ex. 369). CCO stated further:
---------------------------------------------------------------------------
\55\ CCO submitted a pre-hearing comment, Ex. 121, and a post-
hearing comment, Ex. 369. In the earlier of CCO's two comments, the
company appeared to be describing compliance costs for the entire
set of billboard ``faces'' owned and operated by the company (60,000
structures, $80 million), whereas in the later comment the company
appeared to be restricting its cost discussion to 20,000 billboard
structures that reach elevations above a certain height and require
a compliance response.
Clear Channel Outdoor is one of the largest outdoor advertising
businesses in the USA. Many of the remaining companies are very
small ``mom and pop'' types of operations. While Clear Channel has
always met or exceeded regulatory requirements, the additional cost
to comply would not only be a significant impact on the company, it
could potentially put the smaller operations out of business due to
additional financial burden to meet the new requirements.
Clear Channel Outdoor has in excess of 20,000 structures
domestically. If one were to remove the structures greater than
fifty feet that were address[ed] earlier in these
[[Page 82609]]
questions you would be left with approximately 16,000 structures. If
one were to divide that number in half to allow for structures less
than twenty-four feet of ladder climber and specialty structures
without ladders, there would still be around 8,000 structures that
would be affected by the proposed codification of the Gannett
Variance with heights in excess of twenty-four feet of climb
(twenty-five feet is the typical average mentioned in question 1).
To install cages on this number of structures would be approximately
$12,000,000. To install vertical fall protection would be
approximately $2,200,000. While looking at the percentage of cost on
new builds individually may not appear to be that much, to retrofit
structures that are already in existence to meet new requirements
would be extremely expensive.
Additionally, guardrails, cages and wells could potentially
obscure advertising copy. This could result in a diminishment of
sales and possibly have a catastrophic financial impact on all
outdoor advertisers (Ex. 369).
Citizens for a Scenic Wisconsin, Inc. (CFSW), raised a similar
concern about requiring fall protection on fixed ladders used for
outdoor advertising. CFSW pointed out that the Federal Highway
Administration allows catwalks or handrails for non-conforming
billboards, and the Highway Beautification Act (HBA) of 1965 allows
non-conforming billboards to remain in place until they are destroyed,
abandoned, discontinued, or removed. CFSW concluded, ``If existing non-
conforming billboards cannot be safely serviced then their advertising
message will eventually become obsolete or so weathered and worn that
it will become discontinued or abandoned, and ordered removed without
compensation as the HBA intended'' (Ex. 217).
Two commenters supported applying the qualified climber option to
industries other than outdoor advertising. For example, Verallia said
limiting the qualified climber option only to outdoor advertising was
``too restrictive,'' and recommended that OSHA expand the qualified
climber provision to other industries, stating:
There are many other tasks that are routinely performed in
general industry that are comparable. Without attempting to provide
a comprehensive list of such tasks, one example is the infrequent,
but not uncommon, need to climb a ``smoke stack'' in order to
perform emissions testing. The ``stack tester'' is only at the
elevated level for a relatively short amount of time. This task, and
surely many others, are comparable to that of the ``outdoor
advertiser'' and should also come within the proposed standard at
1910.28(b)(10) (Ex. 171).
OSHA notes that neither CCO nor OAAA supported allowing existing
fixed ladders used for outdoor advertising to remain in place and
prospectively applying the fall protection requirements to fixed
ladders erected in the future. OAAA said, ``It could be difficult to
support a grandfather provision due to the fact that a new regulatory
requirement could foster inconsistent application of climbing methods
which ultimately could increase overall risk to climbers. Essentially a
double standard is created'' (Ex. 359). OAAA stated further that
``[t]here is concern that two training systems will be required in the
future, one for grandfather structures and another separate program for
new structures and fixed ladders. Thus, this can be costly as well as
potentially strain overall company safety efforts'' (Ex. 359). Finally,
OAAA noted that ``[w]e concur with the use of new technologies to
protect our workers and professional climbers,'' but ``recommend that
OSHA not list specific equipment in the standard so as to give
employers the flexibility to use new technologies as they become
available'' (Ex. 260). A number of Lamar employees agreed, saying that
listing fall protection system in the final rule would make the rule
``outdated as soon as it was published'' (e.g., Exs. 75; 92; 93; 99;
101).
For a number of reasons, OSHA believes that it is necessary and
appropriate to eliminate the qualified climber exception in the outdoor
advertising industry. First, workers are at risk of death and injury
climbing to elevated heights on fixed ladders without fall protection
(no matter how often) and OSHA believes employers in outdoor
advertising are aware of these risks. For example, CCO, one of the
largest companies in the outdoor advertising industry, said they
already have equipped a number of fixed ladders with fall protection
systems (Ex. 369). CCO added that the average height at which those
fall protection systems protect their workers is 18 feet, which is well
below the height at which fall protection is required in the outdoor
advertising directive. OSHA also notes that the outdoor advertising
industry did not oppose the proposal's requirement that fixed ladders
used in outdoor advertising be equipped with ladder safety systems or
personal fall arrest systems when those ladders exceed 50 feet or for
climbs that exceed 65 feet, which is an acknowledgement that workers
climbing fixed ladders without fall protection are exposed to great
risk.
As demonstrated in the FEA, falls from ladders are a significant
cause of worker deaths and injuries. The FEA indicates that on average,
falls kill 47 general industry workers and injure 10,716 workers each
year. OAAA said their member companies reported no deaths and only one
fall involving their 1,800 climbers for the years 2005 to 2010 (Ex.
260). OSHA's Integrated Management Information System (IMIS) data
indicate that since the 1991 Gannett Variance there have been at least
three falls from fixed ladders in the outdoor advertising industry, one
of which resulted in death.\56\
---------------------------------------------------------------------------
\56\ OSHA derives IMIS data from investigations of employer
accident reports. Since OSHA only requires that employers report
accidents that involve a fatality or the hospitalization of three or
more workers, the Agency believes that IMIS data may understate the
number of non-fatal injuries. IMIS Fatality and Catastrophe
Investigation Summaries are found on OSHA's Web site at: http://www.osha.gov/pls/imis/accidentsearch.html.
The referenced falls are in Ex. 393 under the following
inspection numbers: 310696489; 126063924; and 126062694.
---------------------------------------------------------------------------
The IMIS data also show a large number of falls, in servicing
outdoor advertising structures; however, the data do not identify the
location of the workers on the structures when they fell (Ex. 393).
Therefore, OSHA cannot determine definitively whether the falls were
from fixed ladders. However, OSHA believes that at least some of these
falls could have occurred while workers were climbing the fixed ladder
or transitioning from the fixed ladder to the work platform because the
incident narratives state that workers were not using fall protection
(or were not tied off) when they fell. Since the outdoor advertising
directive requires that employers ensure their workers use fall
protection at all times when they are on work platforms, OSHA believes
that workers may have been on fixed ladders or transitioning from fixed
ladders to the work platform when they fell. As such, OSHA believes
that there may actually be more than the three falls (noted above)
related to climbing without fall protection.
Second, OSHA believes that requiring outdoor advertising employers
to ensure their workers use ladder safety systems or personal fall
arrest systems when they are on fixed ladders will reduce the risk of
falls when workers are transitioning from fixed ladders to work
platforms (or from the work platform to the fixed ladder).
Stakeholders, including many Lamar Advertising workers, admitted that
transitioning from fixed ladders to work platforms is an ``important''
safety concern (e.g., Exs. 85; 86; 90; 92; 103; 104; 105. See also, Ex.
329 (1/18/2011), p. 333). OAAA agreed, saying the final rule must
ensure ``safe transitions'' from fixed ladders to landing surfaces (Ex.
260). IMIS data show falls occurred in the outdoor advertising industry
when workers were
[[Page 82610]]
transitioning between the fixed ladder and the landing/work platform
(Ex. 393). As such, OSHA finds that qualified climber training programs
have not adequately addressed the significant risk associated with
transitioning to/from fixed ladders without work platforms and the
requirement that employers ensure workers use ladder safety systems or
personal fall arrest systems while climbing fixed ladders is needed.
Requiring that workers must be tied off at all times (both on the fixed
ladder and work platform) will reduce the risk of worker falls during
fixed ladder/platform transitions. For example, when workers leave the
work platform they can slip or lose their balance when turning to climb
back down the ladder. At this point the workers may not see the first
rung on the ladder and must feel for a foothold as they transition from
the platform to the fixed ladder. If workers are tied off, falls will
be stopped even if their balance is lost, their foot slips off a ladder
rung, or they lose their grip on the ladder or other hand hold.
Third, OSHA believes that requiring outdoor advertising employers
to use fall protection on fixed ladders will help to ensure that their
workers also continue to use fall protection (i.e., be tied off) at all
times when they are on outdoor advertising work platforms, which will
reduce fatal falls from those platforms. The outdoor advertising
directive, issued in 1993, requires that employers ensure their workers
use fall protection at all times while on work platforms. However, IMIS
data from 1993-2010 indicate that 23 falls from outdoor advertising
work platforms occurred during that time because either employers did
not provide fall protection for workers or did not ensure workers were
properly tied off. Of those falls, 13 resulted in worker deaths (Ex.
393). OSHA believes if employers must provide and ensure workers use
fall protection when they start climbing fixed ladders to work
platforms that those workers will be more likely to remain tied off
when they reach, and work on, the platforms.
OSHA notes that requiring that workers in outdoor advertising use
fall protection when they climb fixed ladders makes the final rule
consistent with the construction ladder standard (Sec.
1926.1053(a)(18) and (19)) and other standards the Agency recently
revised (Sec. Sec. 1910.269 and 1926.954). Those standards require
that workers, including specially trained workers similar to qualified
climbers in outdoor advertising, use fall protection while climbing
fixed ladders, poles, towers, and similar structures. For example, the
construction ladder standard requires that employers provide workers
climbing fixed ladders above 24 feet with, and ensure that they use,
ladder safety devices, self-retracting lifelines (i.e., personal fall
arrest system), cages, or wells (Sec. 1926.1053(a)(19)).
OSHA's revised general industry (Sec. 1910.269) and construction
(29 CFR part 1926, subpart V) electric power generation standards added
a requirement that qualified employees must use fall protection while
climbing or changing locations on poles, towers, or similar structures,
unless the employer can demonstrate that fall protection is not
feasible or presents a greater hazard to the employees (Sec. Sec.
1910.269(g)(2)(iv)(C)(3) and 1926.954(b)(3)(iii)(C))(79 FR 20315 (4/11/
2014)). As originally adopted, Sec. 1910.269 (adopted by OSHA in 1994)
did not require that qualified employees use fall protection when
climbing poles, towers, and similar structures unless conditions (e.g.,
ice, high winds, presence of contaminants) could cause workers to lose
their grip or footing. However, because of the incidence of fall
fatalities and ready availability of personal fall protection systems
(e.g., personal fall arrest systems, pole straps), OSHA added a
provision to Sec. 1910.269 specifically requiring that qualified
employees use fall protection (Sec. 1910.269(g)(2)(iv)(C)(3))(79 FR
20399-20401). OSHA believes the rationale for eliminating the qualified
employee exception from Sec. 1910.269 also is applicable to outdoor
advertising.
OSHA is requiring that outdoor advertising employers provide fall
protection on fixed ladders because it is clear that, like the utility
industry, there are technologically feasible means of fall protection
available that are currently in use to protect workers in outdoor
advertising. Indeed, since 1993 the outdoor advertising directive has
required that employers install ladder safety systems, and ensure that
workers use them, when climbs on fixed ladders exceed 50 feet or when
the fixed ladder ascends to a height of more than 65 feet above grade.
During the period since OSHA issued the directive, manufacturers
developed new types of personal fall protection systems, specifically
personal fall arrest systems, for climbing fixed ladders, and these
systems are readily available, effective, and easy to use (e.g., Exs.
127; 185; 198). OSHA included these systems in the construction fall
protection standard issued in 1994, and their use is commonplace today.
As mentioned, OSHA also required the use of fall protection systems,
such as personal fall arrest systems, in the 2014 revisions to Sec.
1910.269 and Sec. 1926.954. OSHA also notes that, in the current
rulemaking, several stakeholders submitted information to the record
about fall protection systems that are readily available and effective
in protecting workers climbing fixed ladders (Exs. 127; 155; 185; 198;
205).
The record also shows that it is economically feasible for the
outdoor advertising industry to comply with the final requirement to
ensure that employers provide and ensure their workers use fall
protection systems while climbing fixed ladders in outdoor advertising.
Many, if not most, fixed ladders manufactured today have ladder safety
systems or personal fall arrest systems (i.e., self-retracting line or
cable) that meet the requirements of final paragraph (b)(9) of this
section and final Sec. 1910.29. The FEA and the record for this
rulemaking indicate that these systems are reasonably priced and
economically feasible. In the FEA, OSHA estimates that the cost of
purchasing and installing a ladder safety system or personal fall
arrest system is about $1,050. In their post-hearing comments, CCO's
cost estimates for installing ladder safety or personal fall arrest
systems are lower than OSHA's cost estimates, suggesting that OSHA's
estimate is conservative (Ex. 369).
OSHA also believes the fall protection requirement is economically
feasible because the FEA estimates that employers will need to equip
only a small percentage of existing outdoor advertising structures with
fall protection. OAAA estimates there are approximately 450,000
existing structures (Exs. 260; 359; 369). Employers in outdoor
advertising will not have to install fall protection on fixed ladders
that do not extend more than 24 feet above a lower level (final
paragraph (b)(9)(i)(A)) or that already are equipped with fall
protection. As such, in the FEA, OSHA estimates that employers will
need to equip only about 21,000 existing outdoor advertising structures
with a fall protection system by November 19, 2018. In the Preliminary
Economic Analysis (PEA) of the proposed rule, OSHA included a similar
estimate (i.e., 20,490 outdoor advertising structures extend more than
20 feet above a lower level); OAAA provided this estimate to OSHA based
on their member comments and a survey (Ex. OSHA-2007-0072-0046, p. A-
9). Neither OAAA nor any other employer in the outdoor advertising
industry challenged OSHA's estimate. In fact, OAAA's and CCO's comments
generally support OSHA's conclusion that employers will need to equip
only
[[Page 82611]]
a small percentage of existing outdoor advertising structures with fall
protection systems (Exs. 260; 359; 369).
The framework of the final rule, when read in the context of final
paragraph (b)(9)(i) of this section, provides employers with
substantial control flexibility, which further ensures the final rule
is economically feasible. Specifically, the final rule allows outdoor
advertising employers to equip existing ladders (that have no fall
protection) with a cage, well, ladder safety system, or personal fall
arrest system (final paragraph (b)(9)(i)(A)), while the existing rule,
absent the outdoor advertising directive, would require outdoor
advertising employers to equip the fixed ladders with cages or wells
(existing Sec. 1910.27(d)(1)(ii)). As mentioned earlier in this
preamble, this flexibility allows employers to equip fixed ladders with
the least costly fall protection system, which the record indicates are
ladder safety or personal fall arrest systems (Ex. 369; see also FEA).
OSHA notes that CCO, one of the largest outdoor advertising companies,
said it would cost approximately $12 million to install cages or wells
on 8,000 existing fixed ladders, but only $2.2 million to install
ladder safety systems or personal fall arrest systems (i.e., ``vertical
fall protection'') on those fixed ladders (Ex. 369).
In addition, giving employers in outdoor advertising two years to
install a fall protection system on fixed ladders lessens the economic
impact of the final rule and further shows the requirement is economic
feasible. For example, it gives employers time to identify and evaluate
various types of fall protection systems, negotiate with manufacturers
and vendors to select the most cost-effective system that best
satisfies their needs, and train workers in the use of that equipment.
Moreover, OSHA notes that the final rule gives outdoor advertising
employers two years to comply with the requirement that their workers
use fall protection while climbing fixed ladders while revised Sec.
1926.954 gave employers only one year to comply with the fall
protection requirement.
Gradually phasing in over 20 years the requirement that fixed
ladders be equipped with ladder safety systems or personal fall arrest
systems also significantly lessens the economic impact on employers,
including those in outdoor advertising. To illustrate, if outdoor
advertising employers currently use fixed ladders equipped only with
cages or wells, the final rule gives these employers 20 years to
install ladder safety or personal fall arrest systems. This extended
phase-in period allows employers to install fall protection systems as
part of their normal replacement or business cycles rather than
retrofitting fixed ladders immediately. In sum, OSHA believes the
combination of flexibility to use controls that are less expensive than
those the existing rule required, extended compliance time, and gradual
phase-in of ladder safety systems and personal fall arrest systems
ensures the final rule is economically feasible and will not threaten
the industry's ``long-term profitability'' or substantially alter its
competitive structure. (Forging Indus. Ass'n v. Secretary of Labor, 773
F.2d 1436, 1453 (4th Cir. 1985) (en banc) (Noise)).
Finally, OSHA believes requiring employers in outdoor advertising
to provide and ensure that workers use fall protection when climbing
fixed ladders is reasonable and appropriate because, as a number of
commenters said, the outdoor advertising industry and the fixed ladders
it uses are not unique with regard to fall protection (Exs. 155; 185;
198). Therefore, OSHA believes that it is no longer necessary or
warranted for it to except the outdoor advertising industry from the
requirements to use fall protection while climbing fixed ladders.
Stakeholders in the outdoor advertising industry did not argue that the
elevated heights encountered in outdoor advertising are not dangerous,
or that fall hazards or work conditions in outdoor advertising are
unique compared to other industries. Moreover, they did not argue that
the fall protection systems used by workers in other industries when
climbing fixed ladders will not work, or are not a feasible means of
worker protection, in the outdoor advertising industry.
Regarding comments recommending that OSHA not list specific fall
protection systems in the final rule because such a list would soon
become outdated, OSHA notes that the Agency has dealt with issues like
this in the past. If an employer has information about a new method of
fall protection that will provide worker protection equivalent to the
protection afforded to workers by the final rule, it can approach the
Agency and seek permission to use it through a request for
interpretation or a variance.
Stairways. Final paragraph (b)(11), which generally is consistent
with existing Sec. Sec. 1910.23(d)(1) and 1910.24(h) and proposed
paragraph (b)(11), requires that employers protect workers from falling
off stairway landings and the exposed sides of all stairways.
Stairways, as defined in the final rule in Sec. 1910.21(b)), include
standard stairs, ship stairs, spiral stairs, and alternating tread-type
stairs.
Final paragraph (b)(11)(i), like the proposal, requires that
employers ensure each worker exposed to an unprotected side or edge of
a stairway landing that is four feet or more above a lower level is
protected by a guardrail \57\ or stair rail system.\58\ The final
requirement is consistent with the requirements for stairway landings
specified by the existing general industry standard in Sec. 1910.24(h)
and the construction standard in Sec. 1926.1052(c)(12). The final
provision is also consistent with A1264.1-2007 (Section 7.1), the
National Fire Protection Association (NFPA) Life Safety Code--NFPA 101-
2012 (Section 7.1.8), and the International Code Council International
Building Code (IBC)--IBC-2012 (Section 1013.2). OSHA notes that NFPA
and IBC require guards on open-sided walking surfaces located more than
30 inches above the floor or grade below. Unlike final paragraph
(b)(1), which allows employers to protect workers using one of several
fall protection options, final paragraph (b)(11)(i) requires that
employers provide guardrails or stair rails on unprotected sides and
edges of stairway landings and stairways. OSHA believes that limiting
the fall protection options to stair rails or guardrails is necessary,
because the other fall protection options in final paragraph (b)(1)
(i.e., safety net, travel restraint, and personal fall arrest systems)
are not appropriate or practical to use on stairways, which workers use
regularly and routinely to access workplace areas. Using the other
options could prevent, or significantly encumber or impede, workers
from using the stairways and freely moving around the worksite. By
contrast, guardrail and stair rail systems provide continuous
protection while allowing workers to freely access stairs and
worksites.
---------------------------------------------------------------------------
\57\ The final rule defines guardrail system as a barrier
erected along an unprotected side, edge or other walking-working
surface to prevent workers from falling to a lower level (final
Sec. 1910.21(b)).
\58\ The final rule defines stair rail or stair rail system as a
barrier erected along the exposed or open side of stairways to
prevent workers from falling to a lower level (final Sec.
1910.21(b)).
---------------------------------------------------------------------------
Final paragraph (b)(11)(ii), consistent with existing Sec.
1910.23(d)(1) and proposed paragraph (b)(11)(ii), requires that
employers ensure each flight of stairs having at least three treads and
at least four risers is equipped with a stair rail system and handrails
as specified in Table D-2. Table D-2 specifies the type and number of
stair rails and handrails employers must provide based on the width and
configuration of the stairs.
[[Page 82612]]
NFPA commented on the proposed table, saying that it was
potentially misleading (Ex. 97). In particular, NFPA said the third
column (``One open side'') did not clearly specify that, in addition to
providing a handrail on the ``one open side,'' employers also must
provide a handrail on the ``enclosed side'' (Ex. 97). NFPA noted that
OSHA should not expect employers to know that they must meet the
requirements for both the ``enclosed side'' and for ``one open side''
to be in compliance with the final rule. NPFA, therefore, made the
following two recommendations to revise the third column of the
proposed table: (1) For stairways that are 44-88 inches wide, NFPA
recommended, ``One stair rail system with handrail on open side and one
handrail on enclosed side''; and (2) for stairways that are greater
than 88 inches, NFPA recommended, ``One stair rail system with handrail
on open side, one handrail on enclosed side, and one intermediate
handrail located in the middle of the stair.'' OSHA agrees that NFPA's
recommendations clarify the information provided in the proposed table,
and incorporates them in final Table D-2.
Final paragraph (b)(11)(iii), like the proposal, requires that
employers ensure ship stairs and alternating tread-type stairs are
equipped with handrails on both sides. Both of those types of stairs
have slopes that are 50 to 70 degrees from the horizontal, and OSHA
believes that workers need handrails on both sides to safely climb
those stairs. This requirement is consistent with IBC-2012 (Section
1009.13 and .14) and NFPA 101-2012 (Section 7.2.11). OSHA did not
receive any comments on the proposed provision and adopts paragraph
(b)(11) with only minor changes for clarity.
Scaffolds and rope descent systems. Final paragraph (b)(12), like
the proposal, requires that employers protect workers from falls who
are working on scaffolds and who are using rope descent systems. The
final rule defines a scaffold in part as a temporary elevated or
suspended platform and its supporting structure, including anchorage
points, that support workers, equipment, materials, and other items
(final Sec. 1910.21(b)). As defined in the final rule, a rope descent
system, also known as controlled descent equipment or apparatus, is a
suspension device that allows the worker to descend in a controlled
manner, usually in a chair (seatboard) (final Sec. 1910.21(b)).
Final paragraph (b)(12)(i), like the proposal, makes the general
industry standard consistent with the construction standard by
requiring the employer to ensure that workers on scaffolds are
protected from falling in accordance with 29 CFR part 1926, subpart L.
The final rule deletes the existing general industry scaffold
provisions and, instead, requires that employers comply with the
requirements in the construction scaffold standards. The requirements
in the construction scaffold standard are more comprehensive and up to
date than the existing rule, which OSHA adopted in 1971. OSHA notes the
existing rule, like the construction standard, requires that employers
provide fall protection when workers on scaffolds are 10 feet or more
above a lower level (see e.g., existing Sec. 1910.28(b)(15), (c)(14),
(d)(7), (f)(15), (g)(5), (h)(8), (k)(5), (m)(7), (o)(2), (p)(7); Sec.
1926.451(g)(1)).
Final paragraph (b)(12)(ii), like the proposal, requires that
employers ensure workers using rope descent systems four feet or more
above lower levels are protected from falling by a personal fall arrest
system. OSHA reminds employers that if they use vertical lifelines to
protect workers using RDS, the lifeline must be attached to a separate
anchorage (see final Sec. 1910.140(c)(12)). The construction fall
protection standard includes a similar requirement (Sec.
1926.502(d)(15)). OSHA did not receive any comments on the proposed
provision and finalizes it with only minor editorial change.
Work on low-slope roofs. Final paragraph (b)(13) is a new provision
that establishes fall protection requirements when employees perform
work on low-slope roofs. OSHA is adding this provision to make the
general industry standard more consistent with the construction fall
protection standard, which includes a provision addressing roofing work
performed on low-slope roofs (Sec. 1926.501(b)(10)). Many stakeholders
urged OSHA to incorporate the construction provision in the final rule
(see e.g., Exs. 121; 124; 164; 171; 180; 189; 192; 207; 226; 251).
The final rule defines low-slope roof as ``a roof having a slope
less than or equal to 4 in 12 (vertical to horizontal)'' (Sec.
1910.21(b); see also Sec. 1926.500(b)). A ``4 in 12'' slope means, for
example, the slope does not exceed a 4-foot vertical rise for every 12
feet in the horizontal length of the roof.\59\
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\59\ In the preamble to the proposed rule, OSHA mistakenly
indicated that a ``4 in 12'' slope is a slope that is 10 degrees or
less. NIOSH noted correctly in its comments that ``[a] slope of 10
degrees or less from the horizontal requires a slope of 2 in 12 (9.5
degrees)'' (Ex. 164). Therefore, for the purposes of this final
rule, a low-slope roof has a slope of 4 in 12 or less, which is a
slope of less than 20 degrees.
---------------------------------------------------------------------------
Under paragraph (b)(13), the type of fall protection measures
employers must use on low-slope roofs depends upon the distance they
work from the roof edge.\60\ The final rule divides work on low-slope
roofs into three zones:
---------------------------------------------------------------------------
\60\ OSHA notes that final paragraph (b)(13) only applies to
unprotected ``edges'' of low-slope roofs. As such, employers must
protect workers from holes on roofs, including skylights, in
accordance with final paragraph (b)(3).
---------------------------------------------------------------------------
Work performed less than 6 feet from the roof edge;
Work performed 6 feet to less than 15 feet from the roof
edge; and
Work performed 15 feet or more from the roof edge.
Work performed less than 6 feet from the roof edge--Final paragraph
(b)(13)(i), like the construction standard (Sec. Sec. 1926.501(b)(10)
and 1926.502(f)) requires that employers use conventional fall
protection systems (i.e., guardrail systems, safety net systems,
personal fall protection systems) when they work less than 6 feet from
the edge of a low-slope roof. OSHA believes that using a conventional
fall protection system is necessary to protect workers from falling
when they work that close to the roof edge, including the edge of low-
slope roofs. Without conventional fall protection, an inadvertent slip
or trip this close to the edge could propel the worker off the roof.
Work performed 6 feet to less than 15 feet from the roof edge--
Final paragraph (b)(13)(ii), which applies when employees work at least
6 feet but less than 15 feet from the roof edge, requires that
employers protect workers from falling by using:
A conventional fall protection system; or
A designated area, but only when the employer is
performing work ``that is both infrequent and temporary.''
The final rule defines ``designated area'' as ``a distinct portion
of a walking-working surface delineated by a warning line in which
employees may perform work without additional fall protection'' (final
Sec. 1910.21(b)). The definition of designated area is similar to the
construction standard's ``warning line system,'' defined as a barrier
erected on a roof to warn employees that they are approaching an
unprotected roof side or edge, and which designates an area in which
roofing work may take place without the use of guardrail, body belt, or
safety net systems to protect employees in that area (Sec.
1926.500(b)).
In the preamble to the construction fall protection standard, OSHA
explained how warning line systems work:
[[Page 82613]]
[A] warning line ``serves to warn and remind employees that they
are approaching or working near a fall hazard by providing direct
physical contact with the employee. The contact attracts the
employee's attention, enabling the employee to stop in time to avoid
falling off the roof'' (59 FR 40672, 40689 (8/9/1994)).
OSHA intends the use of designated areas and warning lines in the final
rule to work in the same way.
The use of designated areas in the final rule is very limited.
Final paragraph (b)(13)(ii), like the construction standard, only
allows employers to use designated areas for work performed at least
six feet from the roof edge. When work that is at least 6 feet from the
edge of a low-slope roof, OSHA believes the use of fall protection
alternatives is appropriate in certain situations. As far back as the
1990 proposed rule, OSHA said that working a ``six foot (1.8m) distance
[from the edge of a low-slope roof] is sufficient to allow an employee
to stop moving toward the fall hazard after realizing the perimeter has
been contacted'' (55 FR 13360, 13376 (4/10/1990)).
That said, working as close as 6 feet from the edge of a roof, even
a low-slope roof, may pose some risk of falling. To address that risk,
the final rule further limits the use of designated areas at that
distance to work that is ``both infrequent and temporary'' (final Sec.
1910.28(b)(13)(ii)). The proposed rule limited designated areas to work
``of a temporary nature'' (proposed Sec. 1910.29(d)(1)(ii)). In the
preamble to the proposed rule, OSHA said, ``Designated areas may only
be used for temporary, relatively infrequent work'' (75 FR 28895). OSHA
believes the language in the final rule more clearly expresses OSHA's
proposed intent.
For purposes of the final rule, ``temporary'' means that the
duration of the task the worker performs is brief or short. Temporary
and brief or short tasks generally include those that a worker is able
to perform in less time than it takes to install or set up conventional
fall protection. When the duration of a task is this short and the work
is performed at least 6 feet from the edge of a low-slope roof, OSHA
believes worker exposure to fall hazards is very limited. OSHA agrees
with stakeholders who said that requiring employers to install
conventional fall protection in these instances could increase worker
exposure substantially (e.g., Exs. 165). Conversely, when it takes more
time to complete a job than it takes to install or set up conventional
fall protection (e.g., personal fall protection system), OSHA believes
that the use of conventional fall protection is necessary because the
duration of and potential for exposure to fall hazards is more
significant; such exposure is extensive and prolonged.
Temporary tasks also include those that workers are able to
complete at one time rather than repeatedly climbing up or returning to
the roof or requiring more than one workshift to complete. When jobs
take that long to complete or involve repeated exposure, OSHA believes
the risk of falls increases significantly. For purposes of the final
rule, OSHA intends that ``temporary'' tasks generally are limited to
``simple'' tasks and ``short-term . . . scheduled maintenance or minor
repair activities'' (Ex. 165). OSHA agrees with SMACNA's comment that
temporary and simple tasks are those that do not require ``significant
equipment, personnel, and other resources'' or a level of exposure that
``long-term'' or ``complicated'' maintenance and repair work does (Ex.
165).
Although the final rule does not place a specific time limit on
what constitutes a temporary task, OSHA agrees with SMACNA that short
duration tasks generally are those that take less than ``1-2 hours'' to
complete (Ex. 165; see also Exs. 124; 171; 236). Examples of temporary
tasks include changing a filter in a roof-top HVAC system, replacing a
part on a satellite dish, caulking or resealing the flashing around a
skylight, or sweeping a chimney.
The term ``infrequent,'' for purposes of the final rule, means that
the task or job is performed only on occasion, when needed (e.g.,
equipment breakdown), on an occasional basis, or at sporadic or
irregular intervals. Infrequent tasks include work activities such as
annual maintenance or servicing of equipment, monthly or quarterly
replacement of batteries or HVAC filters, and responding to equipment
outage or breakdown. In these instances, the frequency of exposure to
fall hazards is very limited.
By contrast, tasks performed or repeated on a daily, routine or
regular basis are not infrequent activities within the meaning of the
final rule. Infrequent jobs also do not include those that workers
perform as a primary or routine part of their job or repeatedly at
various locations during a workshift. A task may be considered
infrequent when it is performed once a month, once a year, or when
needed.
The designated area provision in final paragraph (b)(13)(ii)
generally is modelled on the construction fall protection standard,
which allows employers to use ``warning line systems'' when they
perform roofing work at least six feet from the edge of a low-slope
roof (Sec. 1926.501(b)(10)). However, the final rule also differs from
the construction standard in several respects. The construction
provision is limited to ``roofing work,'' which that standard defines
as ``the hoisting, storage, application, and removal of roofing
equipment and materials, including related insulation, sheet metal and
vapor barrier work, but not the construction of roof decks''
(Sec. Sec. 1926.500(b)). Roofing jobs typically take a significant
amount of time to complete (hours or days). As a result, workers have
prolonged exposure to fall hazards. Therefore, the construction
standard requires that employers performing roofing work as close as 6
feet from the roof edge must use conventional fall protection systems,
warning line systems used in combination with conventional fall
protection, or warning line systems in combination with safety
monitoring systems. The construction standard included alternative fall
protection options for roofing work because the ``Agency recognized
[conventional fall protection] systems could pose feasibility problems
during roofing work; therefore, the rule allows other choices of fall
protection methods'' (Letter to Mr. Anthony O'Dea (12/15/2003); 59 FR
40688-89).\61\ Some stakeholders said the same feasibility issues are
present in general industry (Exs. 192; 226; 236). Southern Company, for
instance, said there are no suitable anchorage points for securing
personal fall protection systems on some roofs (Ex. 192).
---------------------------------------------------------------------------
\61\ OSHA letter to Mr. O'Dea available at: http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_id=24682.
---------------------------------------------------------------------------
OSHA is including the designated area provision in final paragraph
(b)(13)(ii) for work that is both temporary and infrequent primarily
for other reasons. First, as mentioned, adding the designated area
provision for work on low-slope roofs makes the final rule more
consistent with the construction fall protection standard, which is one
of the main goals of this rulemaking. In addition, making the general
industry and construction standards more consistent will make
compliance easier for employers who perform both general industry and
construction activities. Many stakeholders supported including the
designated area provision for this reason (e.g., Exs. 121; 124; 164;
165; 171; 180; 189; 192; 195; 207; 226; 236; 251; 254).
Second, when the slope of the roof is low, workers are at least 6
feet from the
[[Page 82614]]
roof edge, and their time in the area is both brief and infrequent,
OSHA believes there is very limited exposure to fall hazards. As far
back as the 1990 proposed rule, OSHA said ``it would be unreasonable to
require employers to install guardrail systems in a designated area''
(55 FR 13375).
Third, when the duration of the task is very short, OSHA believes
the physical reminder that warning lines provide can effectively alert
and remind workers that they are approaching the roof edge and must not
get any closer. Fourth, OSHA agrees with stakeholders that requiring
employers to spend the time installing conventional fall protection in
instances when the task is brief and infrequent may pose a greater risk
of falling than the task itself (Exs. 124; 165; 171).
Fifth, allowing employers to use designated areas instead of
conventional fall protection when they perform tasks that require less
time to complete than installing conventional fall protection
significantly limits the duration of the job, thereby increasing
efficiency and cost-effectiveness. Allowing employers to use designated
areas reduces the cost of the job and also makes it easier for them to
assign one-person jobs, which a number of stakeholders do (e.g., Exs.
150; 165).
Finally, the final rule allows the use of designated areas only in
very limited situations. The proposed rule would have allowed greater
use of designated areas. OSHA believes that the limitations
incorporated in final paragraph (b)(13)(ii) (i.e., work that is
performed on low-slope roofs, that is performed at least 6 feet from
the edge and that is both temporary and infrequent) ensures that
designated areas are used only where the duration and frequency of
exposure is extremely limited. In these situations, OSHA believes that
the use of designated areas provides adequate protection and does not
compromise worker safety.
OSHA believes the designated area provision in the final rule also
is more protective than the construction standard. As mentioned, the
construction standard allows employers to use warning line systems in
combination with a safety monitoring system when performing roofing
work (i.e., work that involves prolonged exposure to fall hazards) 6
feet or more from the roof edge (Sec. 1926.501(b)(10)). The
construction standard does not limit the use of warning line systems to
work that is both temporary and infrequent. It also does not require
employers to demonstrate that all conventional fall protection systems
are infeasible in order to use a safety monitoring system. By contrast,
the final rule does not permit employers to use safety monitoring
systems unless the employer first demonstrates that all conventional
fall protection systems are infeasible.
OSHA notes that some commenters (Exs. 124; 165; 171) opposed
requiring employers to establish designated areas (i.e., erect warning
lines) for short duration jobs performed within 15 feet from the roof
edge could (Ex. 171). Some stakeholders supported excepting work that
is both temporary and infrequent from the requirement to use warning
lines for work performed 6 feet to less than 15 feet from the roof edge
(Exs. 165; 207). For example, SMACNA said:
Where is the hazard if the HVAC work does not require the worker
to be within 15 feet of the roof edge . . . and the worker is only
on the roof for a specific purpose (repair or maintain equipment)
and for a short time . . . ? (Ex. 165).
OSHA disagrees with SMACNA. When employers perform any work,
including work that is both temporary and infrequent in nature, as
close as 6 feet from the edge of a low-slope roof, the Agency believes
that some protection is necessary because there is or may be some risk
of falling.
SBA Office of Advocacy said requiring employers to erect warning
lines for short duration tasks could ``present an independent hazard''
(Ex. 124). They reported, ``[Small business representatives] expressed
concern about situations where employees are working on rooftops during
simple, short-duration projects and would be required to construct
physical barriers as `Designated Areas' that may actually increase the
risk of falls and introduce other safety hazards'' (Ex. 124; see also
Ex. 171).
OSHA's experience with warning line systems in the construction
industry does not support SBA Office of Advocacy's claim that using
designated areas for brief tasks poses a greater hazard and the
commenter did not provide any evidence to support their claim.
Moreover, SBA Office of Advocacy recommended that OSHA make the final
rule consistent with the construction fall protection standard, which,
as mentioned, does not exempt ``short duration projects'' from
providing any fall protection (conventional or designated areas) at
this distance from the edge of low-slope roofs the requirements to
provide fall protection. That said, OSHA believes the allowances that
final paragraphs (b)(13)(ii) and (iii) include for employers who
perform work that is both infrequent and temporary, provides
substantial flexibility and should not pose any significant compliance
difficulties.
Work performed 15 feet or more from the roof edge--Final paragraph
(b)(13)(iii), which applies to work performed 15 feet or more from the
edge of a low-slope roof, requires that employers protect workers from
falling by:
Using a conventional fall protection system or a
designated area. If, however, the work is both infrequent and
temporary, employers do not have to provide any fall protection (final
paragraph (b)(13)(iii)(A)); and
Implementing and enforcing a work rule prohibiting
employees from going within 15 feet of the roof edge without using fall
protection in accordance with final paragraphs (b)(13)(i) and (ii)
(final paragraph (b)(13)(iii)(B)).
Final paragraph (b)(13)(iii) generally is consistent with OSHA's
longstanding enforcement policy regarding construction work performed
at least 15 feet from the edge of low-slope roofs (see e.g., letter to
Mr. Anthony O'Dea (12/15/2003); \62\ letter to Mr. Keith Harkins (11/
15/2002); \63\ letter to Mr. Barry Cole (5/12/2000) \64\). OSHA set
forth its policy in the letter to Mr. Barry Cole:
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\62\ OSHA letter to Mr. O'Dea available at: http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_id=24682.
\63\ OSHA letter to Mr. Harkins available at: https://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_id=24552.
\64\ OSHA letter to Mr. Cole available at: https://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_id=24802.
At 15 feet from the edge [of a roof] . . . , a warning line,
combined with effective work rules, can be expected to prevent
workers from going past the line and approaching the edge. Also, at
that distance, the failure of a barrier to restrain a worker from
unintentionally crossing it would not place the worker in immediate
risk of falling off the edge. Therefore, we will apply a de minimus
policy for non-conforming guardrails 15 or more feet from the edge
under certain circumstances. Specifically, we will consider the use
of certain barriers that fail to meet the criteria falling-object a
guardrail a de minimus violation of the guardrail criteria in Sec.
1926.502(b) where all of the following are met:
1. A warning line is used 15 feet or more from the edge;
2. The warning line meets or exceeds the requirements in Sec.
1926.502(f)(2);
3. No work or work-related activity is to take place in the area
between the warning line and . . . the edge;
4. The employer effectively implements a work rule prohibiting
the employees from going past the warning line.
[[Page 82615]]
In one respect, final paragraph (b)(13)(iii) differs from and
provides more flexibility than the construction enforcement policy.
When employers perform work that is both temporary and infrequent at
least 15 feet from the roof edge, the final rule does not require them
to provide any fall protection (using conventional fall protection or
warning lines). OSHA believes this limited exception eases compliance
for employers without compromising worker safety.
Comments in the record support an exception for work that is
temporary and infrequent and performed at least 15 feet from the roof
edge (Exs. 165; 207). For example, SMACNA said:
[A] work procedure such as a simple filter change or belt adjustment
to an HVAC system, especially if the unit is in the middle of a
large roof does not warrant placement of a physical warning line
(Ex. 165).
EEI noted, ``Some flat roofs in general industry settings could be
the size of several football fields'' (Ex. 207). OSHA agrees that
requiring employers to erect a warning line in that situation could
take more time than simply performing a very brief task.
Many stakeholders supported the use of the use of designated areas
``where work is performed away from the immediate fall hazard, such as
in the center of the rooftop'' (Ex. 180; see also Exs. 171; 207; 226).
Verallia concurred, noting that less is needed to protect or warn
workers the further the work area is from the roof edge (Ex. 171). EEI
also said conventional fall protection was not necessary when workers
are not near the roof edge, ``OSHA should not require protection from
fall hazards on large flat roofs when the hazard can be controlled by
keeping all workers a specified distance away from the roof edge'' (Ex.
207). AFSCME agreed, saying that air-handling systems and other
equipment often are located in the middle of the roof (Ex. 226).
Other stakeholders, however, said OSHA should not require any fall
protection, including a warning line, for any task performed ``a safe
distance'' from the edge of a low-slope roof (Exs. 165; 207; 236; 254).
For example, MCAA, whose member companies construct, install, and
service mechanical systems (e.g., HVAC systems), said:
Most of the time, [HVAC] units are a safe distance from the edge
of the roof and/or skylights, and can be accessed and serviced
safely without the use of a ``designated area'' or other fall
protection/prevention systems. Under this proposed rule . . . HVAC
technicians would have to erect a temporary, designated area
perimeter line to comply with the standard. MCAA believes that this
requirement would create unintended hazards, which would be much
more likely to cause injury or death to workers (Ex. 236).
MCAA's argument is not persuasive. MCAA did not provide any data or
other information to support its claim that requiring employers to
erect a warning would be more likely to cause injury or death than
working without any protection. Moreover, MCAA recommended that OSHA
make the final rule consistent with the low-slope roof provision in the
construction standard. That provision requires employers to use
designated area perimeter lines for all roofing work if the employer
does not use conventional fall protection.
In conclusion, OSHA believes that the limitations on the use of
designated areas in final paragraphs (b)(13)(i), (ii) and (iii), taken
together, provide appropriate protection from fall hazards while
affording employers greater control flexibility.
Slaughtering facility platforms. Final paragraph (b)(14) specifies
new requirements OSHA added to the final rule addressing fall
protection for work performed on the unprotected working side of
platforms in slaughtering facilities. As mentioned in the discussion of
final paragraph (b)(1)(ii) earlier in this preamble, the working side
is the side of the platform where workers are in the process of
performing a work operation.
Final paragraph (b)(14)(i) requires that employers protect workers
from falling off the unprotected working side of slaughtering facility
platforms that are four feet or more above a lower level. Employers
must protect those workers by providing:
A guardrail system (final paragraph (b)(14)(i)(A)); or
A travel restraint system (final paragraph (b)(14)(i)(B)).
The proposed rule in Sec. 1910.28 addressed slaughtering facility
platforms, as well as the working sides of loading racks, loading
docks, and teeming platforms, in paragraph (b)(1). Proposed paragraph
(b)(1)(vi) required that employers provide guardrail systems on the
working side of slaughtering house platforms unless they could
demonstrate that providing guardrail systems was infeasible. If an
employer could demonstrate infeasibility, workers could work on the
working side of these platforms without guardrails or any other fall
protection when: the work operation on the working side is in progress
(see proposed paragraph (b)(1)(vi)(A)); the employer restricts access
to the platform to authorized workers (proposed paragraph
(b)(1)(vi)(B)); and the employer trained the authorized workers in
accordance with proposed Sec. 1910.30(b)(1)(vi)(C).
OSHA proposed the exception for the working sides of these
platforms because information available to the Agency at the time
indicated that there may be technological feasibility issues with using
guardrail systems while workers are working on certain platforms. OSHA
requested comment on this issue, including whether there are other
feasible means to protect workers working on the unprotected side of
platforms (see 75 FR 28889).
Commenters said employers often use travel restraint systems on the
working side of slaughtering facility platforms, and, therefore, OSHA
should not provide an exception. For example, Damon, Inc., said, ``I
have worked with several packing houses that have successfully
implemented restraint systems'' (Ex. 251). Likewise, the representative
of the United Food and Commercial Workers Union (UFCW) commented:
My gravest concern is with 1910.28(b)(vi), specifically OSHA's
proposed exception to the requirement for guardrails or other fall
protection on the working side of platforms in slaughtering
facilities. This exception is inappropriate and not protective of
the thousands of workers who would be affected. Work platforms in
the meatpacking industry are becoming increasingly common and are
built to greater heights. Many employers, including Cargill Meat
Solutions in Dodge City, KS have successfully implemented travel
restraint systems for use on these platforms. Just as there is no
question about the feasibility of these systems, there should be no
question about the compelling need for them. There is a compelling
need in meatpacking plants. Falls from platforms in slaughtering
facilities are especially dangerous because of the universal use of
knives and other sharp instruments (Ex. 159).
These comments and other information in the record convince OSHA
that using fall protection on the working side of slaughtering facility
platforms is feasible. Therefore, to eliminate any confusion, OSHA
decided to specify fall protection requirements for slaughtering
facility platforms in a separate provision in the final rule.
Final paragraph (b)(14)(ii) specifies that when the employer can
demonstrate it is infeasible to use guardrail or travel restraint
systems, they can perform the work on slaughtering facility platforms
without a guardrail or travel restraint system, provided:
The work operation for which fall protection is infeasible
is in process (final paragraph (b)(14)(ii)(A));
The employer restricts access to the platform to
authorized workers (final paragraph (b)(14)(ii)(B)); and
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The employer ensures authorized workers receive training
in accordance with final Sec. 1910.30 (final paragraph
(b)(14)(ii)(C)).
The language in final paragraph (b)(14)(ii) is the same as the
language in the exception for working sides of loading rack, loading
dock, and teeming platforms (final paragraph (b)(1)(ii)).
Walking-working surfaces not otherwise addressed. Final paragraph
(b)(15), like proposed paragraph (b)(13), applies to walking-working
surfaces that other paragraphs in final Sec. 1910.28(b) do not address
specifically, such as ramps. Final paragraph (b)(15), like final
paragraph (b)(1)), requires that employers must protect each worker on
a walking-working surface not addressed elsewhere in final paragraph
(b) or other subparts in 29 CFR part 1910 from falling four feet or
more to a lower level using:
Guardrail systems (final paragraph (b)(15)(i));