[Federal Register Volume 71, Number 11 (Wednesday, January 18, 2006)]
[Rules and Regulations]
[Pages 2879-2885]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-374]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF LABOR

Occupational Safety and Health Administration

29 CFR Part 1926

RIN 1218-AC14

[Docket No. S-775 A]


Steel Erection; Slip Resistance of Skeletal Structural Steel

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

ACTION: Final rule.

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

SUMMARY: This document revokes a provision within the Steel Erection 
Standard which addresses slip resistance of skeletal structural steel. 
The Agency received comments that suggest there has been no significant 
progress regarding the suitability of the test methods referenced in 
the provision for testing slip resistance or the availability of 
coatings that would meet the slip resistant requirements of the 
provision. Most significantly, there is a high probability that the 
test methods will not be validated through statements of precision and 
bias by the effective date and that ASTM, an industry standards 
association, is likely to withdraw them shortly thereafter. As a result 
employers will be unable to comply with the provision. Therefore, the 
Agency has decided to revoke it.

DATES: This final rule is effective January 18, 2006.

ADDRESSES: In compliance with 28 U.S.C. 2112(a), OSHA designates the 
Associate Solicitor for Occupational Safety and Health, Office of the 
Solicitor, Room S-4004, U.S. Department of Labor, 200 Constitution 
Avenue, NW., Washington, DC 20210, telephone (202) 693-5445, as the 
recipient of petitions for review of the final standard.

FOR FURTHER INFORMATION CONTACT: For general information and press 
inquiries, contact Kevin Ropp, OSHA Office of Communications, Room N-
3647, OSHA, U.S. Department of Labor, 200 Constitution Avenue, NW., 
Washington, DC 20210; telephone (202) 693-1999. For technical 
inquiries, contact Tressi Cordaro, Office of Construction Standards and 
Guidance, Directorate of Construction, Room N-3468, OSHA, U.S. 
Department of Labor, 200 Constitution Avenue, NW., Washington, DC 
20210; telephone (202) 693-2020.
    For additional copies of this notice, contact OSHA's Office of 
Publications, U.S. Department of Labor, Room N-3101, 200 Constitution 
Avenue, NW., Washington, DC 20210; telephone (202) 693-1888. Electronic 
copies of this notice, as well as news releases and other relevant 
documents, are available on OSHA's Web site at http://www.osha.gov.

SUPPLEMENTARY INFORMATION: References: References to documents and 
materials are found throughout this Federal Register document. 
Materials in the docket of this rulemaking are identified by their 
exhibit numbers, as follows: ``Exhibit 2-1'' means exhibit number 2-1 
and ``Exhibit 2-1-1'' means number exhibit 2-1, attachment 1 in Docket 
S-775A. A list of exhibits is available in the OSHA Docket Office, Room 
N-2625, U.S. Department of Labor, 200 Constitution Avenue, NW., 
Washington, DC 20210; telephone (202) 693-2350 (OSHA's TTY number is 
(877) 889-5627), and on OSHA's Web site at http://www.osha.gov.
    References to the Code of Federal Regulations are identified as 
follows: ``29 CFR 1926.750'' means chapter 29 of the Code of Federal 
Regulations, section 750 of part 1926.

I. Background

    On January 18, 2001, OSHA published a new construction standard for 
steel erection work, 29 Code of Federal Regulation Subpart R (Sections 
1926.750 through 1926.761 and Appendices A through H) (``2001 final 
rule'') (66 FR 5196). It was developed through negotiated rulemaking, 
together with notice and comment under section 6(b) of the Occupational 
Safety and Health Act of 1970 (OSH Act) (29 U.S.C. 655) and section 107 
of the Contract Work Hours and Safety Standards Act (Construction 
Safety Act) (40 U.S.C. 3704). In the course of that rulemaking, OSHA 
received evidence that workers were slipping and falling when working 
on painted or coated structural steel surfaces that were wet from rain 
or condensation. The Agency decided that requiring such coatings to be 
slip-resistant would help to address the falling hazard. During the 
rulemaking, OSHA received evidence both in support of and in opposition 
to the technical feasibility of such a requirement.
    The relevant provisions of the 2001 final rule are 29 CFR 
1926.754(c)(3) and appendix B of subpart R of part 1926. Paragraph 
(c)(3) of Sec.  1926.754 establishes a slip-resistance requirement for 
the painted and coated top walking surface of any structural steel 
member installed after July 18, 2006.
    Appendix B to subpart R is entitled ``Acceptable Test Methods for 
Testing Slip-Resistance of Walking/Working Surfaces (Sec.  
1926.754(c)(3)). Non-Mandatory Guidelines for Complying with Sec.  
1926.754(c)(3).'' The Appendix lists two acceptable test methods: 
Standard Test Method for Using a Portable Inclineable Articulated Strut 
Slip Tester (PIAST) (ASTM F1677-96); and Standard Test Method for Using 
a Variable Incidence Tribometer (VIT) (ASTM F1679-96).
    The crux of the slip resistance requirement in Sec.  1926.754(c)(3) 
is that the coating used on the structural steel walking surface must 
have achieved a minimum average slip resistance of 0.50 (when wet) when 
measured by an English XL tribometer or by another test device's 
equivalent value, using an appropriate ASTM standard test method. In 
the preamble to the final rule, OSHA noted that the two ASTM standard 
test methods listed in Appendix B (ASTM F1677-96 and ASTM F1679-96) had 
not yet been validated through statements of precision and bias. (A 
precision and bias statement is documentation that the test method, in 
laboratory tests, has been shown to have an acceptable degree of 
repeatability and reproducibility). In addition, representatives of the 
coatings industry indicated that it would take time to develop new 
coatings to meet the requirement. For these reasons, the Agency delayed 
the provision's effective date until July 18, 2006, because the 
evidence in the record indicated that it was reasonable to expect these

[[Page 2880]]

developments to be completed by that date (66 FR 5216-5218).
    The slip-resistance provision was challenged in the U. S. Court of 
Appeals for the D.C. Circuit by the Steel Coalition and the Resilient 
Floor Covering Institute. On April 3, 2003, OSHA entered into a 
settlement agreement with those petitioners. In that agreement, OSHA 
agreed to provide the petitioners and other interested parties with a 
further opportunity to present evidence on the progress that has been 
made on slip resistant coatings and test methods. OSHA agreed to then 
evaluate the evidence in the expanded record on these topics and, based 
on the entire rulemaking record issue a final rule, not later than 
January 18, 2006, reaffirming, amending, or revoking the requirements 
in Sec.  1926.754(c)(3).
    Pursuant to the terms of the settlement agreement, on July 15, 2004 
(69 FR 42379), OSHA published a notice announcing a limited reopening 
of the record for Sec.  1926.754(c)(3). This reopening specifically 
sought information regarding:
    (1) Whether the test methods identified in Sec.  1926.754(c)(3) and 
Appendix B to subpart R--or any other test methods that are available, 
or reasonably can be expected to be available by July 18, 2006--are 
suitable and appropriate to evaluate the slip resistance of wetted, 
coated skeletal structural steel surfaces on which workers may be 
expected to walk in connection with steel erection activities; and
    (2) Whether skeletal structural steel coatings that comply with the 
slip resistance criterion of the Standard when tested under the 
identified method(s) are commercially available--or reasonably can be 
expected to be commercially available--by July 18, 2006, and whether 
the use of such coatings will be economically feasible.
    The record closed on October 13, 2004. During the reopening of the 
record, a total of 18 comments were submitted. Comments were received 
from DOW Chemical Company; the Associated General Contractors of 
America (AGC); the American Society of Safety Engineers (ASSE); 
International Association of Bridge, Structural, Ornamental and 
Reinforcing Iron Workers; Ironworker Employers Association; Resilient 
Floor Covering Institute (RFCI); the OSHA/SENRAC Steel Coalition; the 
Society for Protective Coatings (SSPC) co-signed by the American 
Institute of Steel Construction, Metal Building Manufacturers 
Association, National Paint and Coatings Association, Paint & 
Decorating Contractors of America and the Steel Joist Institute; as 
well as individual members of the public.

II. Reasons for Withdrawal/Revocation of 1926.754(c)(3)

    In the original rulemaking, the Agency agreed with the Steel 
Erection Negotiated Rulemaking Advisory Committee's (SENRAC) 
recommendation to address slippery walking, working and climbing 
surfaces on skeletal structural steel (66 FR 5214). The purpose of 
Sec.  1926.754(c)(3) is to help prevent falls by reducing the chance of 
slipping on coated structural steel surfaces when wet. This provision 
was designed to augment other requirements in Subpart R that 
collectively form a strategy for reducing fatalities and injuries due 
to falls. For example, there are fall protection requirements (e.g., 
personal fall arrest) (Sec.  1926.760), and structural steel stability 
requirements (Sec.  1926.754-.758). The slip resistance provision was 
not intended to be the sole or primary means of protecting workers from 
fall hazards. The record as a whole now demonstrates that it is 
unrealistic to expect that employers will be able to comply with Sec.  
1926.754(c)(3).
    As mentioned, in the rulemaking for subpart R, the Agency decided 
to delay the effective date of Sec.  1926.754(c)(3) for five years. 
This delayed effective date was to serve two purposes: (1) To permit 
time for precision and bias statements to be developed and approved for 
the ASTM standards referenced in the provision, and (2) to provide time 
for the industry to develop coatings that complied with the 
requirements of the provision. Comments in the original rulemaking 
record suggested that five years would be a reasonably sufficient time 
to achieve these advancements (66 FR 5216-5217).
    In the July 15, 2004, reopening notice, the Agency noted that, ``if 
this determination were to be in error, it would need to revise the 
slip-resistance provision in some respects, or possibly even to revoke 
it'' (69 FR 42380). From the comments provided during the limited 
reopening of the record it appears that the determination was in fact 
premature. To date, the test methods referenced in Sec.  1926.754(c)(3) 
have not been validated, meaning they lack precision and bias 
statements and there is a high probability that they will not be 
validated by the effective date of the provision. Moreover, it now 
appears that ASTM intends to withdraw the test methods shortly after 
the effective date. Without the ASTM test methods, employers will not 
be able to comply with the provision. In addition, while some compliant 
coatings appear to be available, some manufacturers are uncertain as to 
how to develop coatings that comply with the provision without 
validated test methods. Further, the durability of such coatings in 
terms of protecting steel from corrosion in the variety of environments 
in which they would be used remains unknown.

Testing

ASTM Standard (Testing Method) Development
    Section 1926.754(c)(3) requires that coatings be tested for slip 
resistance using an ASTM standard test method (F1677 or F1679). At the 
time the final rule was issued, ASTM had developed testing methods for 
two testing machines; however, under ASTM rules, these standards were 
provisional, pending the completion of precision and bias statements 
for each. As noted above, a precision and bias statement is 
documentation that the test method, in laboratory tests, has been shown 
to have an acceptable degree of repeatability and reproducibility. OSHA 
believes that completion of the precision and bias statements is 
critical; as the Agency stated in the settlement agreement, ``there is 
a need to have these test methods validated before they can be deemed 
acceptable for measuring slip resistance under the Standard.''
    When OSHA enacted Sec.  1926.754(c)(3), the Agency believed there 
was a high probability that precision and bias statements would be 
approved for these two testing methods by the provision's effective 
date. This belief was based largely on data suggesting that the devices 
had the requisite accuracy and reliability. In this regard, in the 
preamble to the Steel Erection Standard, OSHA stated that the record 
showed F1677 and F1679 were ``sufficiently accurate and yield 
sufficiently reproducible results'' for use in testing whether coatings 
comply with the Standard (66 FR 5216). OSHA pointed out that the 
``English II study'' (William English, Dr. David Underwood and Keith E. 
Vidal, ``Investigation of Means of Enhancing Footwear Traction for 
Ironworkers Working at Heights'' (November 1998)) showed the English XL 
tribometer (F1679) had ``achieved satisfactory precision and bias,'' in 
accordance with ASTM standard practice for conducting interlaboratory 
studies to determine test method precision (ASTM E691-92) (66 FR 5216).
    However, currently there are no approved precision and bias 
statements for either ASTM method. (See Exhibits 2-4, 2-7, 2-8, 2-9, 2-
11, 2-14). In fact, in 2004, the ASTM Committee on

[[Page 2881]]

Standards (COS) expressed concerns about not only the lack of precision 
and bias statements but the proprietary (i.e., brand/model specific) 
nature of both F1677 and F1679. (See Exhibit 2-4 or 2-6). In a letter 
from Mr. Childs, Chairman of COS, to Mr. DiPilla, Chairman of ASTM 
Committee F-13, Mr. Childs notes that the lack of precision and bias 
statements in F1677 and F1679 violates ASTM Form and Style 
requirements. Mr. Childs also notes that the proprietary nature of the 
ASTM standards violates section 15 of the Regulations Governing ASTM 
Technical Committees. Further, the COS notes that the F-13 committee 
``is working towards the development of methods that are not apparatus-
specific, and expects that these standards will be developed by 
September 30, 2006'' (Exhibit 2-14-3). The letter concludes that COS 
intends to withdraw the two test methods if the committee has not 
completed action on developing methods that are not apparatus specific 
by September 2006.
    Additional comments (Exhibits 2-2, 2-4, 2-7, 2-8, 2-11, 2-14) also 
suggest that ASTM will be withdrawing F1677 and F1679 in the near 
future. There are indications that it is unlikely that the F-13 
committee will complete development of non-proprietary test methods by 
the September 2006 time frame. Evidence in the record suggests that in 
order for the F-13 committee to develop a non-proprietary standard, 
research would be necessary to ``develop a suite of standard reference 
materials that * * * would become the accepted reference value, 
allowing validation of individual tribometers.'' (Exhibit 2-4). 
Information in the record indicates that completion of such research 
could take considerable time (Exhibits 2-7, 2-8). In addition, the F-13 
committee had to raise money ($45,000) to fund that research, and there 
is no indication in the record that the funds had been secured and the 
research begun (Exhibit 2-4).
    Therefore, from the record, it appears that ASTM standards F1677 
and F1679 will not be validated with precision and bias statements by 
July 18, 2006 and that ASTM will withdraw the standards shortly 
thereafter. It is also unlikely that a new, non-proprietary standard 
will be drafted and finalized by the July 18, 2006, effective date 
(Exhibits 2-8, 2-11). In addition, any particular machine for which the 
ASTM method is used would have to have a precision and bias statement, 
and from the record this also seems unlikely to occur by the July 18, 
2006, effective date in Sec.  1926.754(c)(3). Resilient Floor Covering 
Institute (RFCI) said their experience is that it takes three to four 
years for ASTM to approve standards once they are developed (Exhibit. 
2-14, p. 7). In the meantime, COS has given no indication that it will 
delay withdrawing F1677 and F1679 during the approval process for a new 
test method. If there are no ASTM test methods it will not be possible 
for employers to comply with the Standard. Collectively, these comments 
indicate that it is unlikely that there will be completed ASTM 
standards (with precision and bias statements) for use by the scheduled 
effective date of the provision. Moreover, there is too much 
uncertainty about whether and when there will be a validated ASTM test 
method to justify delaying the effective date any further.
Reliability of Testing Methods/Devices
    Another concern has been the reliability of the testing devices for 
which ASTM had developed standards. Some of the comments provide 
evidence that the English XL and Brungraber Mark II tribometers are 
reliable indicators of slip resistance.
    For example, the American Society of Safety Engineers (ASSE) and 
the National Forensic Engineers, Inc. (Exhibits 2-5, 2-9) both point 
out that the testing of the English XL tribometer, conducted in ASTM F-
13 workshops in 1998, 2000, and a 2002 interlaboratory test study, have 
shown precision results higher than any other standardized testing 
device or method. As a basis to support ASSE's position that these 
testers are reliable they also noted that there have been court cases 
where, they assert, the English XL machine has been accepted as a 
legitimate scientific instrument.
    ASSE's comment includes an article by Brian C. Greiser, Timothy P. 
Rhoades and Raina J. Shah published in the June 2002 issue of 
Professional Safety, which addresses the suitability of the Brungraber 
Mark II and English XL machines for wet testing. This article describes 
a study, conducted by the authors, which compared the Brungraber and 
English machines. The study found the results generally comparable, so 
long as a particular test ``foot'' was used with the Brungraber machine 
(Exhibit 2-9).
    The President of High Safety Consulting Services (Exhibit 3-2), 
Steven High, supports the use of ASTM F1679 and F1677 methodology and 
attached an analysis of a 1995 study (``English I''), which showed a 
positive correlation of wet testing results between the English XL and 
Brungraber Mark II tribometers.
    Dr. Robert Smith of the National Forensic Engineers, Inc., 
submitted a 2003 ASTM paper he wrote, titled ``Assessing Testing Bias 
in Two Walkway-Safety Tribometers'' which was published in ASTM's 
Journal of Testing and Evaluation. His paper addresses calibration of 
English XL and Brungraber Mark II tribometers to eliminate bias 
(Exhibit 2-5). Specifically, Dr. Smith used graphical data criterion 
developed by M. Marpet to analyze testing data from a 1999 study 
(Powers, C.M., Kulig, K., Flynne, J., and Brault, J.R., ``Repeatability 
and Bias of Two Walkway Safety Tribometers,'' Journal of Testing and 
Evaluation JTEVA, Vol. 27) and finds that the results indicate bias in 
the English XL tribometer at higher angle settings when using the 
Neolite test foot material on a smooth surface (Exhibit 2-5-4). Dr. 
Smith's paper provides quantified data which, he suggests, validates 
the bias and allows for calibration of the English XL tribometer to 
eliminate the bias for wet testing.
    Finally, some commenters stated that continued use of the English 
XL machine by experts in the field demonstrated its reliability (see, 
e.g., exhibits 2-3, 2-5, 3-1).
    In addition to comments supporting the reliability of the testing 
devices, comments were submitted arguing that they are unreliable. 
Three comments (Society for Protective Coatings, OSHA/SENRAC Steel 
Coalition, and Resilient Floor Covering Institute, Exhibits 2-7, 2-8, 
2-14) discuss the reliability of the English XL and Brungraber 
tribometers and find them to be insufficiently reliable to use in 
testing coated structural steel when using the ASTM test methods. The 
Resilient Floor Covering Institute (RFCI) states, ``English XL 
generates results that are so imprecise and variable that no precision 
and bias statements have ever been approved for this test method'' 
(Exhibit 2-14). Additional concerns of these commenters are the test 
``foot'' material, which they believe can vary from batch to batch in 
its production, as well as the ability of atmospheric conditions such 
as temperature and humidity to significantly affect the results of the 
tests.
    The Society for Protective Coatings (SSPC) (Exhibit 2-7), said the 
ASTM F1677 and F1679 methods were not reliable because of the 
variability in the measured slip results, therefore making the methods 
[testers] unreliable. SSPC appended additional materials, including a 
study conducted by Dr. Bernard Appleman, which attempted to develop 
reference panels, to determine slip properties of coatings intended for 
erected steel (Exhibit 2-7-3). The study identifies four possible 
sources of

[[Page 2882]]

variation in the Appleman test results, which brings those results into 
question. The study was not successful in developing reference panels, 
which SSPC argues is in part due to the inconsistent slip readings when 
using the test methods.
    SSPC also appended minutes to an ASTM F-13.10 Subcommittee meeting 
held on June 3, 2002 which include a description of tests done on both 
the F1677 and F1679 methods. According to the minutes, stability 
testing on F1677 (the ASTM standard for the Brungraber Mark II device) 
had begun, and would need to be a continuing process to assess whether 
the individual machine was stable over time and use. The minutes also 
note that it is unknown whether changes in the results of the stability 
testing would be due to the machine, the Neolite test foot or some 
other factor. The minutes further describe ruggedness testing done on 
F1679 (the ASTM standard for the English XL device) and a summary of 
the results is included, which showed, among other things, that with a 
Neolite test foot, temperature influenced slip index readings and 
humidity had no effect on wet slip index readings.
    RFCI (Exhibit 2-14) references a 2003 article by Bowman, et al. 
published in ASTM International, which indicates that the English XL 
has ``certain consistent biases and high variability,'' which makes it 
difficult to compare results with other tribometers. This study also 
indicates that the English XL tribometer and Brungraber Mark II are 
significantly affected by temperature and humidity.
    RFCI also appended a study by Michael A. Sapienza conducted in June 
of 1998. The test attempted to establish consistent readings for a 
Neolite test ``foot'' on various machines for a series of surfaces. The 
study claims that the results indicate a high machine bias. A high 
machine bias indicates that the results are less likely to be 
replicated when a different test machine is used, which calls both the 
validity and the comparability of results from different test machines 
into question.
    In Dr. Smith's paper, ``Assessing Testing Bias in Two Walkway-
Safety Tribometers,'' as discussed above, he found that the Brungraber 
tribometer could be numerically calibrated to eliminate bias; however, 
the calibration was only possible for dry conditions and only up to a 
slip-resistance value of 0.4, below the Standard's 0.5 threshold. Above 
0.4, the results were not reliable; thus, he concluded that the 
Brungraber test method was not suitable for testing coatings on 
structural steel under wet conditions (Exhibit. 2-5, p. 4).
    The comments in the record indicate that there is some additional 
empirical evidence indicating the two testing devices referenced in the 
standard's Appendix B are reliable. However, there continues to be a 
debate within the industry on the issue of reliability and this debate 
emphasizes the need to have approved precision and bias statements for 
the applicable ASTM test methods. The precision and bias statements are 
necessary for employers to know with certainty when they are in 
compliance with the slip resistant standard--by allowing them to rely 
on documentation or certification reflecting the results of testing 
using a test method that has been approved or shown to be suitable and 
appropriate for measuring the slip resistance of steel. As stated 
above, there are poor prospects that completed ASTM methods (with 
approved precision and bias statements) will be in place in the 
foreseeable future. The Agency had been relying on what appeared to be 
reasonable prospects in 2001 that the precision and bias statements 
would be completed by the provision's effective date. That would have 
completed the ASTM method process for at least these two testing 
devices. It now appears that not only will there be no completed 
precision and bias statements by July 2006, but that there will be no 
applicable ASTM standards in place as of September, 2006. Finally, with 
this degree of uncertainty regarding the future of ASTM standards for 
such devices, the Agency is unable to make a reasonable estimate for 
how much longer it will take beyond July 2006 for that process to be 
completed.

Coatings

    In the preamble to the Steel Erection Standard, OSHA said record 
evidence of the availability of compliant slip resistant coatings was 
``conflicting'' (66 FR 5217). Although OSHA found that there were some 
slip resistant coatings currently in use for steel erection, their use 
was in ``limited specialized applications'' and most had not been 
adequately tested to determine whether they comply with the Standard 
and meet industry performance needs (66 FR 5217-5218). OSHA 
acknowledged that it would take additional time for manufacturers to 
develop, test and widely distribute suitable coatings. However, in view 
of the fact that there were some coatings on the market and technology 
for developing additional coatings was in place, OSHA determined that a 
five-year delay in the effective date would provide enough time for the 
industry to develop and distribute compliant coatings across the 
industry (66 FR 5217).
    In determining whether compliant slip resistant coatings are 
``available'' (or reasonably can be expected to be available by the 
effective date) OSHA examined two issues: (1) whether available slip 
resistant coatings comply with the Standard's 0.50 minimum threshold, 
and (2) whether available slip resistant coatings are sufficiently 
durable for use in the variety of environments in which coatings are 
used. It should be noted that durability in this context means the 
suitability of the coatings to protect the steel in various settings 
from corrosion over time, rather than its ability to retain its slip 
resistant character. For example, to be useable by the industry, 
coatings for steel members in bridges in the northeast would need to be 
protective against road salt, a highly corrosive agent.
    Some of the comments addressing the development of slip resistant 
coatings emphasize the difficulty of moving forward with the 
development of coatings without a reliable testing device. Other 
comments indicate that, notwithstanding that problem, the evaluation of 
existing coatings and development of prospective coatings that might 
meet the standard's criteria is proceeding and that employers can 
comply with the provision.
    There is some new evidence to suggest that there are coatings 
available now and/or that reasonably could be expected to be available 
by July 2006, that meet the provision's slip resistance criterion. 
Specifically, several commenters (Exhibits 2-3, 2-5, 2-13, 2-15, 3-2) 
point to evidence from the original rulemaking--the 1995 and 1998 
English studies, the Canadian Pulp Mill project--and to a new July 2003 
article, ``The Rough, the Smooth and the Ugly,'' Journal of Protective 
Coatings and Linings, (Exhibit 2-7-10) to argue that paints are 
available now or that they could be available by the July 18, 2006 
effective date with the addition of polybeads. See also Exhibit 2-5, 
wet testing study by Dr. Smith produced results that were ``always 
above 0.5.''
    However, there is no new evidence relative to the durability of 
these coatings in terms of protecting steel from corrosion and no 
evidence on the extent to which they would be sufficiently durable for 
the variety of environments in which they are used. The extent to which 
currently available, potentially compliant coatings could satisfy the 
variety of environments is unknown since the durability of those 
coatings in challenging settings (i.e., where salt or other corrosive 
agents are

[[Page 2883]]

present) has not been established. Also, the durability of coatings 
with polybeads has not been established, so the extent to which those 
coatings could be used is also unknown.
    In addition, there is no new evidence to supplement the original 
record (specifically the Canadian Pulp Mill project evidence) 
indicating that existing coatings or coatings that could reasonably be 
expected to be available (i.e., coatings with polybeads added) are 
durable in terms of protecting steel from corrosion. Those commenters 
that suggest paints are available now or could reasonably be available 
do not focus on the durability of the coatings.
    One commenter, S. High (Exhibit 3-2), asserts that a small study he 
did indicates that some coatings currently used by fabricators meet the 
slip resistance threshold. However, even if a limited number of 
existing coatings meet the criteria for some settings, no evidence was 
presented to indicate that these coatings are sufficiently durable to 
meet the different performance needs of various environments 
encountered in steel erection.
    Thus, there is insufficient information in the record for the 
Agency to be able to establish that either currently available coatings 
(which presumably are durable at least in some settings) or coatings 
that could reasonably be available would be suitable in terms of 
durability in various applications.
    The major focus of the paint industry's comment is on the 
reliability of the testing devices rather than on the development of 
compliant coatings; its main argument is that the availability of 
paints is unknown because the test method is neither reliable nor 
accurate (SSPC Comment, Exhibit 2-7). SSPC submitted one new study, 
performed by KTA-Tator, Inc. titled ``Developing Reference Panels for 
Slip Testing of Erected Steel'' (Dr. Bernard Appleman, August 2002) 
(Exhibit 2-7). This study focused on the development of coated 
reference panels for slip resistance testing. The study attempted to 
develop painted surfaces with repeatable slip indexes that could serve 
as reference panels for unknown paints. These reference panels would 
then ``serve as a bench mark(s) to determine the relative slip index of 
coated steel.'' The study started with 12 paints and 3 were ultimately 
selected for further evaluation. The study claimed that it was not able 
to produce reference panels due to inconsistent slip indexes results.
    Other comments were submitted that addressed a variety of issues, 
such as economic feasibility and the scope of the phrase ``paint or 
similar material.'' For example, one article that was submitted, ``The 
Rough, the Smooth and the Ugly,'' Journal of Protective Coatings and 
Linings July 2003 article, (Exhibit 2-7-10), addresses economic 
feasibility. The article states that minimal additional material costs 
were incurred in adding polybeads to the paint. However, citing the 
same article, SSPC argues that the conclusion that adding beads does 
not significantly increase costs of the coatings is ``very tentative.'' 
Another commenter (Exhibit 2-16) raises concerns over environmental 
restrictions which would possibly prohibit spraying paints (and/or 
impose other restrictions). This commenter also noted that compliant 
paints available for the ``dipping'' method (typically used for 
applying coatings to steel) are still not developed. Several commenters 
(Exhibits 2-11, 3-2) note a possible problem meeting both current state 
DOT mandated coating requirements and the requirements of Sec.  
1926.754(c)(3). One of those commenters (Exhibit 3-2) emphasizes that 
this concern is particularly significant because of the time lag 
between submitting state job bids and commencement of the actual steel 
erection activity. Finally, another commenter (Exhibit 2-12), expresses 
concern over the breadth of the provision's coverage (particularly with 
regard to galvanized steel) in view of its reference to ``paint or 
similar material.''
    Irrespective of these other issues, this record indicates that the 
availability of paints, which will both comply with the slip resistance 
requirement and have sufficient durability for the variety of 
applications in which the coated steel will be used, has not been 
established.

Suggested Alternatives to Testing Requirements

    In addition to comments urging OSHA to reaffirm or revoke the slip 
resistance provision, several comments suggested alternatives including 
use of alternative testers and delaying the effective date to allow 
more time for the testing methods to be approved by the industry. One 
commenter (Exhibit 2-2) discusses two alternative testers, the British 
Pendulum tester, which is referenced by ASTM E404, and a ``German 
Ramp'' test. Specifically this comment notes that the British Pendulum 
tester is referenced in several standards in other countries, as well 
as in ASTM standards and standards for the International Organization 
for Standardization (ISO).
    The International Association of Bridge, Structural, Ornamental, 
and Reinforcing Iron Workers (Exhibit 2-10) suggests that OSHA extend 
the July 18, 2006, deadline for three more years, to allow time to 
refine testing methods. In addition, the Associated General Contractors 
(AGC) suggests that, assuming OSHA retains the provision, OSHA should 
postpone the effective date (Exhibit 2-11).
    In addition, one commenter (Exhibit 2-12) suggests that OSHA modify 
the standard by adding an exception to Sec.  1926.754(c)(3) where 
employees use fall protection at all heights.
    The Agency considered the suggested alternatives; however, for 
several reasons they are not being adopted. With respect to alternative 
testing devices, there is not enough information in the record to 
indicate whether the alternative test devices would be acceptable for 
measuring slip resistance under the standard. For example, it is 
unclear whether ASTM has approved methods and precision and bias 
statements for the British Pendulum tester for use in this context (wet 
surfaces). As to delaying the effective date of the provision, OSHA has 
decided not to extend the effective date for three more years because 
the Agency does not believe that doing so will resolve the high degree 
of uncertainty that now surrounds the ASTM test methods. The ASTM test 
methods will not be validated by the effective date and are likely to 
be withdrawn later this year. In addition, there is great uncertainty 
whether there will be any approved ASTM test methods in this regard 
within the next three years. As discussed, although ASTM's COS expects 
the F-13 committee to complete development of a non-proprietary test 
method by September 2006, there is no information in the record about 
whether this deadline will be met. Moreover, once a standard is 
developed, ASTM rules require that it be validated and approved before 
it becomes effective. According to RFCI, the approval process alone 
could take three or four years to complete (Exhibit 2-14). As a result, 
it is doubtful that extending the effective date three years would be 
sufficient. For the same reasons, OSHA also rejected extending the 
effective date for an even longer period of time. There is too much 
uncertainty with the development of the ASTM test methods for the 
Agency to make a reasonable estimate of when, if ever, applicable ASTM 
test methods will be approved and validated.
    The suggestion to provide an exception for workers who are using 
100% fall protection at any elevation is rejected for two reasons. 
First, the Agency finds that there are technical reasons for revoking 
the provision. Second, the suggestion to provide such an exception 
raises issues that were addressed in Sec.  1926.760. In the final

[[Page 2884]]

rule for Subpart R, the Agency decided to defer to SENRAC's 
recommendation on the issue of tying off for fall protection. Since the 
scope of this reopening did not include Sec.  1926.760, this 
alternative is rejected.

Conclusion

    Compliance with the slip resistance provision depends on there 
being ASTM methods, that is standards and approved precision and bias 
statements, in place for the use of slip testing machines. Submitted 
comments indicate that ASTM's continued approval of the F1677 and F1679 
methods are in doubt. The uncertainty of those standards' future 
undermines a basic assumption that underlies the provision--that there 
will be testing machines with ASTM methods in place for use when the 
provision goes into effect.
    While some new evidence was submitted indicating that the two 
machines referenced in Appendix B are reliable, the reliability of the 
testing methods will be questioned in the industry until there are 
applicable ASTM methods (including approved precision and bias 
statements). When that may occur is unclear. Such methods are necessary 
for employers to know that a coating complies with the standard.
    The question of whether compliant paints are going to be available 
by July 2006 cannot be answered with sufficient certainty until there 
are completed ASTM testing methods available for evaluating the paints. 
As long as that aspect of the problem is unresolved, the question of 
paint availability will also be unresolved. Furthermore, durability 
testing cannot be completed until the paint industry knows what testing 
devices and methods to use to determine which paints to test for 
durability. Since the time frame for resolving the ASTM standards 
problem is uncertain, the time frame for ascertaining which paints 
would be both compliant with the provision and suitable for the 
industry is also uncertain.
    Because the advancements OSHA anticipated are not likely to occur 
by the effective date, and may not occur for a number of years, it will 
not be possible for employers to comply with Sec.  1926.754(c)(3) and 
for these reasons, the Agency is revoking it.

III. Economic Analysis and Regulatory Flexibility Certification 
Analysis

    The economic impact and regulatory flexibility analyses for the 
final Steel Erection Standard contained detailed information on 
economic impacts, including estimated annualized costs to comply with 
the slip-resistance provision (66 FR 5253-5263). As a result of the 
revocation of this provision its projected $29.5 million annualized 
costs for affected establishments, which were anticipated in the 
economic analysis for the final rule of Subpart R, will not be 
incurred. These projected costs were 38% of the total estimated 
increased costs to the industry for compliance with the final rule (66 
FR 5257). The revocation of Sec.  1926.754(c)(3) is not an economically 
significant regulatory action for the purposes of EO 12866. OSHA also 
certifies that this revocation will not have a significant impact on a 
substantial number of small entities, for the purposes of the 
Regulatory Flexibility Act (5 U.S.C. 601 et seq.)

IV. Environmental Impact Assessment

    OSHA has reviewed the final rule in accordance with the 
requirements of the National Environmental Policy Act of 1969 (NEPA)(42 
U.S.C. 4321 et seq.), the regulations of the Council on Environmental 
Quality (40 U.S.C. 1500), and the Department of Labor's NEPA procedures 
(29 CFR part 11). As with the existing Steel Erection Standard, the 
focus of this final rule is on the reduction and avoidance of accidents 
occurring during structural steel erection. Consequently, no major 
negative impact is foreseen on air, water or soil quality, plant or 
animal life, the use of land, or other aspects of the environment.

V. Unfunded Mandates

    OSHA has reviewed the final rule in accordance with the Unfunded 
Mandates Reform Act of 1995 (2 U.S.C. 1501 et seq.) and Executive Order 
12875. For the reasons stated above and in the notice of proposed 
rulemaking (69 FR 42381), OSHA has determined that the final rule is 
likely to reduce the regulatory burdens imposed on public and private 
employers by the slip resistance provision this final rule revokes. 
This final rule would not expand existing regulatory requirements or 
increase the number of employers covered by the Steel Erection 
Standard. Consequently, the final rule would require no additional 
expenditures by either public or private employers and does not mandate 
that state, local or tribal governments adopt new, unfunded regulatory 
obligations.

VI. Federalism

    OSHA has reviewed this final rule in accordance with the Executive 
Order on Federalism (Executive Order 13132, 64 FR 43255, August 10, 
1999), which requires that agencies, to the extent possible, refrain 
from limiting State policy options, consult with States prior to taking 
any actions that would restrict State policy options, and take such 
actions only when there is clear constitutional authority and the 
presence of a problem of national scope. Executive Order 13132 provides 
for preemption of State law only if there is a clear congressional 
intent for the Agency to do so. Any such preemption is to be limited to 
the extent possible.
    Section 18 of the OSH Act (29 U.S.C. 651 et seq.) expresses 
Congress' intent to preempt State laws where OSHA has promulgated 
occupational safety and health standards. Under the OSH Act, a State 
can avoid preemption on issues covered by Federal standards only if it 
submits, and obtains Federal approval of, a plan for the development of 
such standards and their enforcement (State-Plan State). 29 U.S.C. 667. 
Occupational safety and health standards developed by such State-Plan 
States must, among other things, be at least as effective in providing 
safe and healthful employment and places of employment as the Federal 
standards. Subject to these requirements, State-Plan States are free to 
develop and enforce under State law their own requirements for safety 
and health standards.
    This final rule complies with Executive Order 13132. As Congress 
has expressed a clear intent for OSHA standards to preempt State job 
safety and health rules in areas addressed by OSHA standards in States 
without OSHA-approved State Plans, this rule limits State policy 
options in the same manner as all OSHA standards. In States with OSHA-
approved State Plans, this action does not significantly limit State 
policy options.

VII. State Plan States

    When Federal OSHA promulgates a new standard or a more stringent 
amendment to an existing standard, the 26 States or U.S. Territories 
with their own OSHA-approved occupational safety and health plans must 
revise their standards to reflect the new standard or amendment, or 
show OSHA why there is no need for action, e.g., because an existing 
State standard covering this area is already ``at least as effective'' 
as the new Federal standard or amendment. 29 CFR 1953.5(a). The State 
standard must be at least as effective as the final Federal rule, must 
be applicable to both the private and public (State and local 
government employees) sectors, and should be in place within six months 
of the publication date of the final Federal rule. When OSHA 
promulgates a new standard or standards amendment

[[Page 2885]]

which does not impose additional or more stringent requirements than an 
existing standard, States are not required to revise their standards, 
although OSHA may encourage them to do so. The 26 States and 
territories with OSHA-approved State Plans are: Alaska, Arizona, 
California, Connecticut (plan covers only State and local government 
employees), Hawaii, Indiana, Iowa, Kentucky, Maryland, Michigan, 
Minnesota, Nevada, New Mexico, New Jersey (plan covers only State and 
local government employees), New York (plan covers only State and local 
government employees), North Carolina, Oregon, Puerto Rico, South 
Carolina, Tennessee, Utah, Vermont, Virginia, Virgin Islands (plan 
covers only State and local government employees), Washington, and 
Wyoming.
    Since this final rule revokes the slip-resistance provision in the 
Steel Erection standard (Subpart R, Sec.  1926.754(c)(3) and Appendix 
B), it will not impose any additional or more stringent requirements on 
employers. Therefore, States with OSHA-approved State Plans may, but 
are not required, to take parallel action. OSHA encourages State Plans 
to review the factors considered by OSHA in taking this action.

VIII. OMB Review Under the Paperwork Reduction Act

    Under the Paperwork Reduction Act of 1995 (PRA)(44 U.S.C. 3501 et 
seq.), agencies are required to seek the Office of Management and 
Budget (OMB) approval for all collections of information (paperwork). 
As part of the approval process, agencies must solicit comment from 
affected parties with regard to collection of information, including 
the financial and time burdens estimated by the agencies for collection 
of information. OSHA has determined that this final rule does not 
contain any collections of information as defined in OMB's regulations 
(60 FR 44978 (8/29/1995)).

IX. Authority

    This document was prepared under the Direction of Jonathan L. 
Snare, Acting Assistant Secretary of Labor for Occupational Safety and 
Health, U.S. Department of Labor, 200 Constitution Avenue, NW., 
Washington, DC 20210. It is issued under sections 4, 6, and 8 of the 
Occupational Safety and Health Act of 1970 (29 U.S.C. 653, 655, 657), 
section 107 of the Contract Work Hours and Safety Standards Act 
(Construction Safety Act) (40 U.S.C. 3704), Secretary of Labor's Order 
5-2002 (67 FR 65008), and 29 CFR part 1911.

    Signed at Washington, DC, this 11th day of January, 2006.
Jonathan L. Snare,
Acting Assistant Secretary of Labor.

List of Subjects in 29 CFR Part 1926

    Structural steel erection, Construction industry, Construction 
safety, Occupational Safety and Health Administration, Occupational 
safety and health.


0
For the reasons set forth in the preamble, 29 CFR part 1926 is amended 
as follows:

PART 1926--SAFETY AND HEALTH REGULATIONS FOR CONSTRUCTION

Subpart R--Steel Erection

0
1. The authority citation for Subpart R is revised to read as follows:

    Authority: Section 107, Contract Work Hours and Safety Standards 
Act (Construction Safety Act) (40 U.S.C. 3704); Sections 4, 6, and 
8, Occupational Safety and Health Act of 1970 (29 U.S.C. 653, 655, 
657); Secretary of Labor's Order No. 3-2000 (65 FR 50017) or 5-2002 
(67 FR 65008), and 29 CFR part 1911.


Sec.  1926.754  [Amended]

0
2. In Sec.  1926.754, remove paragraph (c)(3).

Appendix B [Removed and Reserved]

0
3. In Subpart R, remove and reserve Appendix B.

[FR Doc. 06-374 Filed 1-17-06; 8:45 am]
BILLING CODE 4510-26-P