[Federal Register Volume 81, Number 223 (Friday, November 18, 2016)]
[Rules and Regulations]
[Pages 82494-83006]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-24557]



[[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

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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.
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    \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.
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    Injuries. OSHA examined lost-workday injuries using data from BLS's 
Survey of Occupational Injuries and Illnesses. Falls have been one of 
the leading causes of lost-workday injuries for the last several years. 
From 2006-2010, falls were consistently the third leading cause of 
injuries and illnesses, behind overexertion and contact with objects 
and equipment. From 2011-2012, slips, trips, and falls were the second 
leading cause of injuries and illnesses, behind only overexertion.
    In addition to being a major source of lost-workday injuries, falls 
to a lower level were also some of the most severe. Falls to a lower 
level had the second highest median days away from work, a key measure 
of the severity of an injury or illness, every year from 2006-2012, 
except 2010 (where it was the third highest). BLS data also demonstrate 
that the majority of lost-workday falls to a lower level that occurred 
in private industry occurred in general industry. More specifically, 
for 2006-2012, approximately three-quarters of the lost-workday falls 
to a lower level in private industry occurred in general industry.
    Table V-8 of the FEA shows the average number of lost-workday 
injuries due to falls in general industry, by type of fall, for 2006-
2012. Based on these data, OSHA estimates that, on average, 
approximately 48,379 serious (lost-workday) injuries per year resulted 
from falls to a lower level and would be directly affected by the final 
standard.
    Table II-2, based on BLS's Survey of Occupational Injuries and 
Illnesses, provides additional information about the median number of 
days away from work for lost-workday falls to a lower level from 2006-
2012. Table II-2 displays the median number of days away from work 
attributed to falls to a lower level for each industry sector and 
private industry as a whole. In 2012, for example, the number of median 
days away from work for falls to a lower level in private industry as a 
whole was 18, while the median days away from work for all lost-workday 
injuries and illnesses in private industry as a whole was 8. Similarly, 
in 2012, the median days away from work for falls to a lower level in 
nearly every general industry sector was higher, and in many cases, 
much higher, than the median days away from work for all lost-workday 
injuries and illnesses in those sectors. This suggests that falls to a 
lower level are among the most severe lost-workday injuries.
[GRAPHIC] [TIFF OMITTED] TR18NO16.098


[[Page 82500]]


    Based on the number of fatalities and lost-workday injuries 
reported by BLS for falls to a lower level, and evidence that non-fatal 
injuries are among the most severe work-related injuries, OSHA finds 
that workers exposed to fall hazards are at a significant risk of death 
or serious injury.
    Several stakeholders agreed that fall hazards present a significant 
risk of injury and death (Exs. 63; 121; 158; 189; 363; OSHA-S029-2006-
0662-0177; OSHA-S029-2006-0662-0350). For example, Bill Kojola of the 
American Federation of Labor and Congress of Industrial Organizations 
(AFL-CIO) asserted:

    Fall hazards remain one of the most serious problems faced by 
millions of workers. We are convinced that the proposed changes, 
when implemented as a result of promulgating a final rule, will 
prevent fatalities and reduce injuries from fall hazards (Ex. 363).

    Similarly, in his written comments, Robert Miller of Ameren 
Corporation stated that the proposed rule is a positive approach 
towards eliminating at-risk conditions and events (Ex. 189).
    Charles Lankford, of Rios and Lankford Consulting International, 
challenged OSHA's preliminary finding that falls present a significant 
risk and that revising the general industry fall protection standards 
is necessary to address the problem. Mr. Lankford used NIOSH and BLS 
data to argue, respectively, that the final rule is not necessary 
because the rate of fall fatalities decreased from 1980-1994 and ``held 
steady'' from 1992 to 1997 (Ex. 368). OSHA is not persuaded by Mr. 
Lankford's argument because, as discussed above, current BLS data from 
2006-2012 show that an average of 261 fatal falls to a lower level 
occurred annually and these falls continue to be a leading cause of 
fatal occupational injuries in general industry. OSHA believes this 
shows that a significant risk of death from falls to a lower level 
still exists in general industry workplaces. With regard to Mr. 
Lankford's claim that fall fatalities held ``steady'' from 1992-1997, 
according to the BLS data, the number of fatal falls increased each 
year during that period (with the exception of 1995), and reached a 6-
year high in 1997.
    In addition, Mr. Lankford argued that:

    [H]istorical incident rates for non-fatal falls also do not 
display an increasing fall problem. The all-industries non-fatal 
fall incidence rate has declined every year since 2003 (the oldest 
year in the BLS Table I consulted), so the decline in rates is not 
attributable to the current recession. If we exclude 2008 and 2009 
data, manufacturing did not show a change. Yet 2006 and 2007 showed 
lower injury incidence rates than 2003 and 2004 (Ex. 368).

A review of 2003-2009 BLS data on the incidence rates of nonfatal 
occupational injuries and illnesses resulting from falls could not 
reproduce Mr. Lankford's claims. As previously discussed, falls 
continue to be one of the leading causes of lost-workday injuries. 
Falls to a lower level are also some of the most severe lost-workday 
injuries. In 2012, for example, the number of median days away from 
work for falls to a lower level in private industry as a whole was 18, 
while the median days away from work for all lost-workday injuries and 
illnesses in private industry as a whole was 8.
    Mr. Lankford also suggested that fatal falls are a greater problem 
in the ``goods producing sector'' than the ``service sector.'' However, 
this assertion is not supported by the BLS data. As described in Table 
V-6 of the FEA, from 2006-2012, among all three-digit NAICS codes 
affected by the standard, BLS reported the highest number of fatal 
falls in a ``service sector'' (NAICS code 561, Administrative and 
Support Services). Further, over the seven-year period, the 
Professional, Scientific, and Technical Services industry and the 
Administrative, and Support Services industry (NAICS codes 541 and 561, 
respectively) accounted for 28 percent of the fatal falls.
    Based on the evidence and analysis, OSHA disagrees with Mr. 
Lankford's comment. As mentioned above, after examining recent BLS data 
(2006-2012), OSHA finds that the available evidence points to a 
significant risk. OSHA believes that the risk of injury, combined with 
the risk of fatalities constitutes a significant safety threat that 
needs to be addressed by rulemaking--specifically a revision to 
subparts D and I. OSHA believes that the revisions to subparts D and I 
are reasonable and necessary to protect affected employees from those 
risks. Based on the BLS data, the Agency estimates that full compliance 
with the revised walking-working surfaces standards will prevent 28 
fatalities and 4,056 lost-workday injuries due to falls to a lower 
level annually. OSHA finds that these benefits constitute a substantial 
reduction of significant risk of harm from these falls.
    Several commenters urged OSHA to expand its analysis to include 
fatalities and injuries resulting from falls on the same level (Exs. 
77; 329 (1/20/2011 pp. 42, 60-61); 329 (1/21/2011, pp. 200-203); 330). 
However, the Agency finds that, with regard to its significant risk 
analysis, the data for falls to a lower level constitute the vast 
majority of the risk that the standard addresses, i.e., falls from 
elevations. Analysis in the FEA (Section V) demonstrates that fatal 
falls on the same level made up a small portion of all fatal falls. 
Table V-7 of the FEA shows that, for the five-year period 2006 to 2010, 
falls on the same level accounted for about 24 percent of total fall 
fatalities. For non-fatal injuries, the Agency recognizes that falls on 
the same level represent a significant portion of lost-workday fall-
injuries. Table V-8 of the FEA shows that, in general industry, falls 
on the same level accounted for 68 percent of all falls resulting in 
lost-workday injuries, while falls to a lower level accounted for only 
24 percent.
    However, as discussed in the FEA, the final rule has relatively few 
new provisions addressing falls on the same level, such as slips and 
trips from floor obstructions or wet or slippery working surfaces. The 
requirements expected to yield the largest benefits from preventing 
falls on the same level are found in final Sec.  1910.22 General 
requirements. These final provisions will result in safety benefits to 
workers by controlling worker exposure to fall hazards on walking-
working surfaces, especially on outdoor surfaces. Tables V-11 and V-13 
of the FEA show that OSHA estimates only 1 percent of fatal falls on 
the same level and 1 percent of lost-workday falls on the same level 
will be prevented by these provisions.
    Since falls to a lower level constitute the vast majority of the 
risk the final rule addresses, OSHA's significant risk analysis 
includes only falls to a lower level. Because of this, OSHA notes the 
final risk analysis may understate the risk of falls in general 
industry, since falls on the same level account for 68 percent of falls 
resulting in a lost-workday injury.
    The U.S. Chamber of Commerce questioned whether OSHA's estimate of 
the benefits of the proposed standard justified the efforts undertaken 
to issue the standard:

    We note with some surprise that OSHA's analysis suggests this 
new regulation will have a relatively minor impact on the total 
number of fatalities attributed to falls from height. OSHA claims 
that for the years 1992-2007 there were an average of 300 fatal 
falls per year from height. OSHA calculates that this standard will 
result in 20 fewer fatal falls per year. We do not mean to diminish 
the significance of saving 20 lives, but OSHA seems to be projecting 
less impact than a standard of this scope would suggest. Indeed, 
OSHA even admits in the preamble that:

For the purposes of this analysis, OSHA did not attempt a 
quantitative analysis of how many fatal falls could be prevented by 
full and complete compliance with the existing standard. However a 
qualitative examination

[[Page 82501]]

of the fatal falls to a lower level shows that a majority, and 
perhaps a large majority, could be prevented by full compliance with 
the existing regulations. (Emphasis added)

This raises questions about whether such a sweeping new standard as 
this one, which will create confusion and new enforcement exposures, 
is indeed warranted, or if OSHA would achieve the same or better 
results by generating more complete compliance with current 
requirements (Ex. 202).

    First, far from creating confusion, this rulemaking assures that 
OSHA rules will be in much closer accord with existing consensus 
standards and practices and that OSHA's general industry fall 
protection requirements will be better aligned with its construction 
fall protection standard. There are many situations in which improved 
enforcement of existing rules would be highly cost beneficial but is 
not possible. On the other hand, OSHA can enforce new provisions to 
this rule at minimal marginal costs per inspection since the bulk of 
the costs of an inspection involves the time to reach the site, walk 
through the site looking for violations of all OSHA rules, and conduct 
the necessary closing and enforcement conferences.

III. Pertinent Legal Authority

    The purpose of the OSH Act is to ``assure so far as possible every 
working man and woman in the nation safe and healthful working 
conditions and to preserve our human resources'' (29 U.S.C. 651(b)). To 
achieve this goal, Congress authorized the Secretary of Labor to issue 
and to enforce occupational safety and health standards (see 29 U.S.C. 
655(a) (authorizing summary adoption of existing consensus and Federal 
standards within two years of the OSH Act's effective date); 655(b) 
(authorizing promulgation of standards pursuant to notice and comment); 
and 654(a)(2) (requiring employers to comply with OSHA standards)).
    A safety or health standard is a standard ``which requires 
conditions, or the adoption or use of one or more practices, means, 
methods, operations, or processes, reasonably necessary or appropriate 
to provide safe or healthful employment or places of employment'' (29 
U.S.C. 652(8)).
    A standard is reasonably necessary or appropriate within the 
meaning of section 3(8) of the OSH Act if it materially reduces a 
significant risk to workers; is economically feasible; is 
technologically feasible; is cost effective; is consistent with prior 
Agency action or is a justified departure; adequately responds to any 
contrary evidence and argument in the rulemaking record; and 
effectuates the Act's purposes at least as well as any national 
consensus standard it supersedes (see 29 U.S.C. 652; 58 FR 16612, 16616 
(3/30/1993)).
    A standard is technologically feasible if the protective measures 
it requires already exist, can be brought into existence with available 
technology, or can be created with technology that can reasonably be 
expected to be developed (Pub. Citizen Health Research Group v. U.S. 
Dep't of Labor, 557 F.3d 165, 170-71 (3d Cir. 2009); Am. Iron and Steel 
Inst. v. OSHA (Lead II), 939 F.2d 975, 980 (D.C. Cir. 1991); United 
Steelworkers of Am., AFL-CIO-CLC v. Marshall, 647 F.2d 1189, 1272 (D.C. 
Cir. 1980)).
    A standard is economically feasible if industry can absorb or pass 
on the cost of compliance without threatening its long-term 
profitability or competitive structure (Am. Textile Mfrs. Inst. v. 
Donovan (Cotton Dust), 452 U.S. 490, 530 n.55 (1981); Lead II, 939 F.2d 
at 980). A standard is cost effective if the protective measures it 
requires are the least costly of the available alternatives that 
achieve the same level of protection (Int'l Union, United Auto., 
Aerospace & Agric. Implement Workers of Am., UAW v. OSHA (Lockout/
Tagout II), 37 F.3d 665, 668 (D.C. Cir 1994). See also Cotton Dust, 452 
U.S. at 514 n.32 (suggesting that the ``reasonably necessary or 
appropriate'' language of Section 3(8) of the Act (29 U.S.C. 652(8)) 
might require OSHA to select the less expensive of two equally 
effective measures)).
    Section 6(b)(7) of the OSH Act authorizes OSHA to include among a 
standard's requirements labeling, monitoring, medical testing, and 
other information-gathering and transmittal provisions (29 U.S.C. 
655(b)(7)).
    All safety standards must be highly protective (see 58 FR at 16614-
16615; Lockout/Tagout II, 37 F.3d at 668). Finally, whenever 
practicable, standards shall ``be expressed in terms of objective 
criteria and of the performance desired'' (29 U.S.C. 655(b)(5)).

IV. Summary and Explanation of the Final Rule

    The final rule revises and updates the requirements in the general 
industry Walking-Working Surfaces standards (29 CFR part 1910, subpart 
D), including requirements for ladders, stairs, dockboards, and fall 
and falling object protection; and it adds new requirements on the 
design, performance, and use of personal fall protection systems (29 
CFR part 1910, subpart I). The final rule also makes conforming changes 
to other standards in part 1910 that reference requirements in subparts 
D and I.

A. Final Subpart D

    This part of the preamble discusses the individual requirements in 
the specific sections of final subpart D; explains the need for and 
purposes of the requirements; and identifies the data, evidence, and 
reasons supporting them. This preamble section also discusses issues 
raised in the proposed rule and by stakeholders, significant comments 
and testimony submitted to the rulemaking record, and substantive 
changes from the proposed rule.
    In accordance with section 6(b)(8) of the OSH Act, OSHA drew many 
of the revisions, new provisions, and technological advancements in the 
proposed and final rules from various national consensus standards. In 
the discussion of the specific sections of final subpart D, OSHA 
identifies the national consensus standards that section references. In 
the summary and explanation of the proposed rule, OSHA's references to 
national consensus standards are to the editions that were current at 
that time. In the time since OSHA published the proposed rule, many of 
the referenced consensus standards have been revised and updated. In 
the final preamble, OSHA references the most recent editions of those 
national consensus standards, where appropriate, after examining and 
verifying that they are as protective as earlier editions.
    OSHA has taken a number of steps in the final rule, like the 
proposal, to provide greater compliance flexibility for employers and 
make the final rule easier to understand and follow, which stakeholders 
supported (e.g., Exs. 155; 164; 165; 172; 191; 196; 202). For example, 
consistent with section 6(b)(5) of the Occupational Safety and Health 
Act of 1970 (29 U.S.C. 655(b)(5)), the final rule uses performance-
based language in place of specification requirements, which gives 
employers flexibility to select the controls that they determine to be 
most effective for the particular workplace situation and operation. 
Like the proposed rule, OSHA increases ``harmonization'' between the 
final rule and OSHA construction standards (29 CFR part 1926, subparts 
L, M, and X), which makes compliance easier for employers who perform 
both general industry and construction operations (e.g., Exs. 164; 165; 
172; 191; 202; 226).
    Finally, clarifying provisions and terms, using plain language, and 
consolidating and reorganizing the requirements also make the final 
rule easier to understand, thereby, enhancing

[[Page 82502]]

compliance. The following table lists the sections in final subpart D 
and the corresponding sections in the existing subpart:
[GRAPHIC] [TIFF OMITTED] TR18NO16.099

Section 1910.21--Scope and Definitions
    Final Sec.  1910.21 establishes the scope of and defines the terms 
used in 29 CFR part 1910, subpart D--Walking-Working Surfaces.
Final Paragraph (a)--Scope
    Final paragraph (a), like the proposed rule, specifies that the 
subpart applies to all general industry workplaces. It covers all 
walking-working surfaces unless specifically excluded by an individual 
section of this subpart. The final rule consolidates the scope 
requirements for subpart D into one provision and specifies that the 
final rule applies to all walking-working surfaces in general industry 
workplaces. The final rule defines ``walking-working surfaces'' as any 
surface on or through which an employee walks, works, or gains access 
to a work area or workplace location (Sec.  1910.21(b)). Walking-
working surfaces include, but are not limited to, floors, ladders, 
stairways, steps, roofs, ramps, runways, aisles, scaffolds, dockboards, 
and step bolts. Walking-working surfaces include horizontal, vertical, 
and inclined or angled surfaces.
    Final paragraph (a) also specifies that subpart D does not apply to 
general industry walking-working surfaces, including operations and 
activities occurring on those surfaces, that an individual section or 
provision specifically excludes. Final subpart D addresses each of 
these specific exclusions in the relevant individual section or 
provision. OSHA notes that each exclusion only applies to the specific 
section or provision in which it appears and not to any other final 
subpart D section or provision. Existing subpart D does not have a 
single scope provision that applies to the entire subpart. Rather, it 
includes separate scope requirements in various sections in the subpart 
(e.g., Sec.  1910.22--General requirements; Sec.  1910.24(a)--Fixed 
industrial stairs; Sec.  1910.25(a)--Portable wood ladders; Sec.  
1910.27(e)(3)--Fixed ladders; Sec.  1910.29(a)(1)--Manually

[[Page 82503]]

propelled mobile ladder stands and scaffolds (towers)).
    OSHA believes the consolidated scope provision in final paragraph 
(a) is clearer and easier to understand than the existing rule. Final 
paragraph (a) allows employers to determine more easily whether the 
final rule applies to their particular operations and activities. In 
addition, the final rule is consistent with OSHA's interpretation and 
enforcement of subpart D since the Agency adopted the walking-working 
surfaces standards in 1971. It also is consistent with other OSHA 
standards, including Agency construction standards (e.g., 29 CFR 
1926.450(a); 1926.500(a); 1926.1050(a)).
    A number of stakeholders commented on the proposed scope provision 
(e.g., Exs. 73; 96; 109; 187; 189; 190; 198; 201; 202; 251; 254; 323; 
340; 370). Some stakeholders urged OSHA to expand the scope to include 
agricultural operations (Exs. 201; 323; 325; 329 (1/18/2011, pgs. 206-
08); 329 (1/19/2011, p. 101); 340; 370). Most commenters, however, 
recommended that OSHA limit the scope or exclude certain workers, work 
operations, or walking-working surfaces or hazards, such as inspection, 
investigation, and assessment activities; public safety employees; 
rolling stock and motor vehicles; and combustible dust (e.g., Exs. 73; 
96; 98; 150; 156; 158; 157; 161; 167; 173; 187; 189; 190; 202). (See 
separate discussions of agricultural operations and rolling stock and 
motor vehicles below. See final Sec.  1910.22(a) for discussion of 
combustible dust.)
    Verallia commented that the proposed scope, combined with the 
proposed definition of ``walking-working surfaces'' (Sec.  1910.21(b)), 
``greatly expands the obligation of employers'' and makes some 
requirements, such as regular inspections, ``unduly burdensome'' (Ex. 
171). Verallia recommended that OSHA limit the scope of the final rule 
by revising the walking-working surfaces definition (see discussion of 
the definition of walking-working surfaces in final Sec.  1910.21(b)). 
OSHA disagrees with Verallia's contention. The existing rule covers all 
of the examples of walking-working surfaces listed in the proposed 
definition of walking-working surfaces (proposed Sec.  1910.21(b)).
    Several stakeholders urged that OSHA exclude inspection, 
investigation, and assessment operations performed before the start of 
work and after work is completed (e.g., Exs. 109; 156; 157; 177; 254). 
While some of these commenters recommended excluding those operations 
from fall protection requirements, others said OSHA should add to final 
Sec.  1910.21(a) the following language from OSHA's construction 
standard (29 CFR 1926.500(a)(1)):

    Exception: The provisions of this subpart do not apply when 
employees are making an inspection, investigation, or assessment of 
workplace conditions prior to the actual start of construction work 
or after all construction work has been completed.

    Such language would have the effect of excluding these operations 
from the entirety of subpart D, which OSHA opposes. Although OSHA 
excludes these operations from the fall protection requirements in 
final Sec.  1910.28 (see discussion in final Sec.  1910.28(a)(2)), 
employers performing them must comply with the other requirements in 
this subpart. For example, those employers must ensure that ladders and 
stairways their workers use to get to the workplace location are safe; 
that is, are in compliance with the requirements in final Sec.  1910.23 
and final Sec.  1910.25, respectively. Employers also must ensure that 
the workers performing those operations can safely perform those 
operations by ensuring they receive the training that final Sec.  
1910.30 requires.
    Some stakeholders recommended that OSHA exclude public safety 
employees from the final rule (Exs. 167; 337; 368). The Public Risk 
Management Association (PRIMA) offered three reasons for excluding 
public safety employees from the final rule. First, they said employers 
do not control the walking-working surfaces where employees perform 
public safety and emergency response operations (Ex. 167). Second, they 
said it is ``unreasonable'' to require public safety employees (e.g., 
SWAT teams) to install and use fall protection systems, since there is 
only a short time in which emergency response and rescue operations 
they perform will be effective. Finally, PRIMA said requiring that 
State Plan States adopt the final rule or an equivalent could result in 
different rules that could adversely impact interstate 
multidisciplinary teams and agreements.
    OSHA does not believe excluding public safety employees from the 
entire final rule is appropriate or necessary. Many general industry 
employers that the final rule covers perform operations on walking-
working surfaces that they do not own, thus, in this respect, public 
safety employers and operations are not unique. Regardless of whether 
general industry employers own the walking-working surfaces where their 
workers walk and work, they still must ensure the surfaces are safe for 
them to use. For example, general industry employers, including public 
safety employers, must ensure that the walking-working surfaces are 
able to support their employees as well as the equipment they use. If 
walking-working surfaces cannot support the maximum intended load, 
employees and, in the case of public safety employers, the people they 
are trying to assist or rescue, may be injured or killed.
    OSHA does not believe stakeholders provided convincing evidence 
showing this and other requirements (e.g., training) provisions in 
final subpart D are not feasible for public safety employers. However, 
if an employer, including public safety employers, can demonstrate that 
it is infeasible or creates a greater hazard to comply with the final 
rule in a particular situation, they may use other reasonable 
alternative means to protect their employees. (OSHA notes that final 
Sec.  1910.23 does not apply to ladders that employers use in emergency 
operations such as firefighting, rescue, and tactical law enforcement 
operations (see discussion in final Sec.  1910.23(a)(1))).
    Agricultural operations. The final rule, like the proposal, covers 
walking-working surfaces in general industry workplaces. In the 
preamble to the proposed rule OSHA clearly specifies that the proposal 
does not apply to agricultural operations; 29 CFR part 1928 covers 
those operations (75 FR 28920 (5/24/2010)).
    Although neither the proposed rule nor OSHA standards define 
``agricultural operations,'' the Agency has said they generally include 
``any activities involved in the growing and harvesting of crops, 
plants, vines, fruit trees, nut trees, ornamental plants, egg 
production, the raising of livestock (including poultry and fish) and 
livestock products'' (e.g., feed for livestock on the farm) (Field 
Operations Manual (FOM), Chapter 10, Section B(1)). Agricultural 
operations include preparation of the ground, sowing, watering and 
feeding of plants, weeding, spraying, harvesting, raising of livestock, 
and ``all activity necessary for these operations'' (Memorandum from 
Patricia Clark, Directorate of Compliance Programs (7/22/1992)).
    OSHA's Appropriations Act uses the term ``farming operations,'' 
which is similarly defined as ``any operation involved in the growing 
or harvesting of crops, the raising of livestock or poultry, or related 
activities conducted by a farmer on sites such as farms, ranches, 
orchards, dairy farms or similar farming operations'' (CPL 02-00-51; 42 
FR 5356 (1/28/1977); Memorandum for Regional

[[Page 82504]]

Administrators (7/29/2014)).\3\ Farming operations on small farms also 
include ``preparing the ground, sowing seeds, watering, weeding, 
spraying, harvesting, and all related activities necessary for these 
operations, such as storing, fumigating, and drying crops grown on the 
farm'' (Memorandum for Regional Administrators (7/29/2014)).
---------------------------------------------------------------------------

    \3\ Since 1976, a Congressional appropriations rider has 
precluded OSHA from expending funds to conduct enforcement 
activities with respect to any person engaged in farming operations 
with 10 or fewer non-family employees that has not maintained a 
temporary labor camp within the preceding 12 months (Consolidated 
Appropriations Act, 2014, Pub. L. No. 113-76 (2014)).
---------------------------------------------------------------------------

    The Occupational Safety and Health Review Commission (OSHRC) has 
ruled that activities integrally related to these core agricultural 
operations also are agricultural operations (Darragh Company, 9 BNA 
OSHC 1205, 1208 (1980) (delivery of chicken feed to farmers that raise 
chickens is integrally related to agricultural operations)). 
Determining whether an activity is a core agricultural operation must 
be made on a case-by-case basis and be based on the nature and 
character of the specific activity rather the employer's agricultural 
operation as a whole (J.C. Watson Company, 22 BNA OSHC 1235, 1238, 
aff'd. 321 Fed. Appx. 9 (April 17, 2009)).
    Under the Darragh test, post-harvesting activities are not integral 
to core agricultural operations, therefore, they are not covered by 
part 1928 (J.C. Watson Company, 22 BNA OSHC 1235 (2008)). Post-harvest 
activities such as receiving, cleaning, sorting, sizing, weighing, 
inspecting, stacking, packaging and shipping produce are not 
``agricultural operations'' (J.C. Watson Company, 22 BNA OSHC at 1238 
(employer's packaging of onions (1) grown on land employer owned, 
leased, or worked; (2) purchased on the ``spot market''; or (3) brought 
to the shed by other growers; in a shed on the employer's farm was 
``not integral to the growing of onions, the true agricultural 
operation here'')). Post-harvesting activities not on a farm include 
the processing of agriculture products, which ``can be thought of as 
changing the character of the product (canning, making cider or sauces, 
etc.) or a higher degree of packaging versus field sorting in a shed 
for size'' (FOM, Chapter 10, Section B(4)).
    In addition, activities performed on a farm that ``are not related 
to farming operations and are not necessary to gain economic value from 
products produced on the farm'' are general industry activities 
(Memorandum for Regional Administrators (July 29, 2014) (these 
activities on a small farm ``are not exempt from OSHA enforcement'' 
under the appropriations rider)). To illustrate, the memorandum 
specifies the following activities performed on a farm are general 
industry activities (``food manufacturing operations'') not farming 
operations exempt under the appropriations rider:
     Grain handling operation that stores and sells grain grown 
on other farms;
     Food processing facility that makes cider from apples 
grown on the farm or processes large carrots into ``baby carrots;'' and
     Grain milling facility and use of milled flour to make 
baked goods.
    As mentioned, a number of stakeholders urged that OSHA include 
agricultural operations in the final rule for several reasons (Exs. 
201; 323; 325; 340; 370). First, the stakeholders said fall hazards are 
present throughout agricultural operations. For instance, Farmworker 
Justice stated:

    Fall hazards exist in all types of farm operations in both crop 
and animal production, including work in vegetable fields, packing 
sheds, fruit orchards, tree nurseries, greenhouses, mushroom houses, 
dairies, poultry farms, cattle feedlots, and other livestock 
operations (Ex. 325).

    They also said that workers are exposed to fall hazards while 
working on various types of walking-working surfaces, including 
ladders, farm machinery, and elevated farm structures (Ex. 325).
    Second, stakeholders said fall hazards are a leading cause of 
worker fatalities and injuries in agricultural operations. Farmworker 
Justice said the annual number of fatal falls in agricultural 
operations accounted for almost 10 percent of all annual occupational 
fatal falls (Ex. 370). They said a NIOSH analysis of 2005 Bureau of 
Labor Statistics (BLS) data indicated that fall-related farmworker 
deaths occurred at a rate of 1.4 per 100,000, ``a rate exceeded in only 
two other industries: Construction . . . and mining'' (Ex. 325, 
referring to 2005 Census of Fatal Occupational Injury data). According 
to Farmworkers Justice, BLS data from 2004-2009 indicated that 157 
agricultural workers died due to falls, which they said was an average 
of over 28 fall deaths per year (Exs. 329 (1/18/2011, pp. 228); 370). 
California Rural Legal Assistance Foundation (CRLAF) said BLS fatality 
data from 1992-1997 indicated 166 agricultural workers died as a result 
of falls from elevations (Ex. 201).
    Farmworker Justice and CRLAF also submitted evidence on the 
prevalence of fall injuries in agricultural operations. CRLAF said an 
analysis of 1991 Florida worker compensation records in agricultural 
operations revealed that falls accounted for nearly 25 percent of all 
serious, disabling work injuries (Ex. 201). Farmworker Justice 
reported:

    BLS data indicates that workers in both crop and animal 
production had among the highest rates of non-fatal fall-related 
injuries requiring days away from work of all U.S. workers in 2009 
(Ex. 370).

    Farmworker Justice stated that fall injuries were particularly 
frequent among workers harvesting tree fruit and nut crops:

    According to 2009 BLS fall injury data . . . orchard workers 
suffered ladder-related fall injuries at the rate of 33.6 per 10,000 
workers, which would be among the top 20 industry fall rates 
examined by OSHA (Ex. 370; see also Ex. 325).

    CRLAF reported similar data showing ``nearly one-third (31%) of the 
13,068 Workers' Compensation Claims in Washington State orchards 
between 1996 and 2001 involving compensation for lost work time were 
for ladder related injuries.''
    Third, stakeholders said the fall protection standards that 
California, Oregon, and Washington have adopted to protect agricultural 
workers show that it is feasible to apply the final rule to agriculture 
operations (Exs. 325; 329 (1/18/2011, pgs. 207-210); 340; 370). 
Farmworker Justice said that government officials, agricultural orchard 
employers, and agricultural safety training experts in these states 
indicated that compliance with those standards have ``significantly 
reduced injuries among agricultural workers'' (Ex. 370). It also 
reported that a Washington study of fall injuries among orchard workers 
over a five-year period (1996-2001) following implementation of the 
state's fall protection standard found ``statistically significant 
annual reductions in injuries'' (Ex. 370, discussing Hofmann J, Snyder 
K, Keifer M. ``A descriptive study of workers claims in Washington 
State orchards,'' 56 Occupational Medicine 251-257 (2006)).
    OSHA agrees with the stakeholders that walking-working surface 
hazards, particularly fall hazards, exist in agricultural operations. 
That said, OSHA has not included agricultural operation in the final 
rule. The Agency has not gathered and analyzed the type of information 
on agricultural operations necessary to support a rule. OSHA has not 
gathered and analyzed information on the number of agricultural workers 
and establishments the final rule would affect. In addition, OSHA has 
not determined what percentage of agricultural

[[Page 82505]]

establishments are farming operations with 10 or fewer non-family 
employees that have not maintained a temporary labor camp within the 
preceding 12 months and therefore exempt from enforcement of the final 
rule.
    OSHA has not gathered and analyzed data and information on the jobs 
in agricultural operations where walking-working surface hazards are 
present and worker injuries and fatalities are occurring; the current 
employer practices to address these hazards; and the availability and 
cost of controls, such as fall protection systems, to protect workers 
from those hazards. In addition, OSHA has not conducted the economic 
and regulatory flexibility analyses necessary to make a feasibility 
determination. And, because the proposal clearly did not extend to 
agricultural operations, the public has not had a chance to comment on 
those issues. These and other steps are necessary before OSHA can issue 
a final rule that applies to agricultural operations. As such, the 
final rule applies to general industry and not agricultural operations. 
However, if an operation performed on a farm is not an ``agricultural 
operation'' or integrally related to an agricultural operation, such as 
a food manufacturing or other post-harvesting operations, then the 
final general industry rule applies.
    Rolling stock and motor vehicles. In this rulemaking OSHA has 
raised issues and requested comment about whether the final rule should 
include specific requirements to protect workers from falling off 
rolling stock and motor vehicles.\4\ The 2010 proposal does not include 
specific requirements for rolling stock and motor vehicles (75 FR 
28862). Instead, in the preamble, OSHA said it would continue gathering 
information and evidence to determine whether there is a need to 
propose specific requirements for rolling stock and motor vehicles (75 
FR 28867). OSHA also said it needs ``more information about what 
employers are presently doing and any feasibility and cost concerns 
associated with a requirement to provide protection'' for rolling stock 
and motor vehicles. OSHA said it will wait until the record is more 
fully developed to make a determination about requiring fall protection 
on rolling stock and motor vehicles. OSHA also stated that if it 
receives sufficient comments and evidence to warrant additional 
rulemaking on rolling stock and motor vehicles, the Agency will issue 
``a separate proposed rule'' (75 FR 28867) (emphasis in original). The 
comments the Agency received on the need for specific requirements for 
rolling stock and motor vehicles are summarized below.
---------------------------------------------------------------------------

    \4\ OSHA defines ``rolling stock'' as any locomotive, railcar, 
or vehicle operated exclusively on a rail or rails, or a trolley bus 
operated by electric power supplied from an overhead wire. ``Motor 
vehicle'' means any commercial bus, van, or truck, including tractor 
trailer, flatbed, tanker, and hopper trucks.
---------------------------------------------------------------------------

    Many stakeholders support adding specific fall protection 
requirements for rolling stock and motor vehicles to the final rule 
(e.g., Exs. 127; 130; 155; 185; 198; 257; 307; OSHA-S029-2006-0662-
0195; OSHA-S029-2006-0662-0196; OSHA-S029-2006-0662-0207; OSHA-S029-
2006-0662-0227; OSHA-S029-2006-0662-0234; OSHA-S029-2006-0662-0247; 
OSHA-S029-2006-0662-0310; OSHA-S029-2006-0662-0329), while many urge 
OSHA to exclude rolling stock and motor vehicles from coverage or to 
limit fall protection requirements to specific situations, such as when 
vehicles are inside or contiguous to a building (e.g., Exs. 63, 121; 
158; 161; 162; 181; 182; 183; 220; 238; 335; OSHA-S029-2006-0662-0202; 
OSHA-S029-2006-0662-0219; OSHA-S029-2006-0662-0226; OSHA-S029-2006-
0662-0229; OSHA-S029-2006-0662-0244; OSHA-S029-2006-0662-0252; OSHA-
S029-2006-0662-0302; OSHA-S029-2006-0662-0306; OSHA-S029-2006-0662-
0314; OSHA-S029-2006-0662-0320; OSHA-S029-2006-0662-0324).
    Stakeholders who support adding specific fall protection 
requirements said workers are exposed to fall hazards working on 
rolling stock and motor vehicles; falls from rolling stock and motor 
vehicles have resulted in death and serious injury; and feasible, 
effective fall protection systems exist and are in use to protect 
employees working on rolling stock and motor vehicles. These 
stakeholders include safety professional organizations (e.g., American 
Society of Safety Engineers (ASSE)); fall protection system 
manufacturers, suppliers, and installers; safety engineers and 
consultants; and labor organizations.
    Stakeholders who oppose adding specific requirements said requiring 
fall protection for rolling stock and motor vehicles is not necessary, 
creates a greater hazard, and is infeasible. Some said OSHA did not 
have authority to regulate rolling stock and motor vehicles, and, in 
any event, should leave such regulation to the Federal Railroad 
Administration (FRA) and Federal Motor Carrier Safety Administration 
(FMCSA), respectively. Some stakeholders urged OSHA that the final rule 
limit fall protection requirements to vehicles located inside or 
contiguous to a building or structure. These stakeholders include 
employers, small businesses, and industry associations (Exs. 182; 220; 
OSHA-S029-2006-0662-0226; OSHA-S029-2006-0662-0229; OSHA-S029-2006-
0662-0231; OSHA-S029-2006-0662-0237; OSHA-S029-2006-0662-0252; OSHA-
S029-2006-0662-0306; OSHA-S029-2006-0662-0340).
    Need for fall protection. Several stakeholders asserted that fall 
protection on rolling stock and motor vehicles is not necessary for a 
variety of reasons. First, stakeholders said no or very few workers 
climb on rolling stock and motor vehicles (Exs. 124; 183; 187; 220; 
238). For example, Minnesota Grain and Feed Association (MGFA) said 
members load/unload rolling stock and motor vehicles using electronic 
controls operated from ground-level instead (Ex. 220). Likewise, the 
Small Business Administration Office of Advocacy (SBA Advocacy) and 
American Trucking Associations (ATA) said employees load/unload truck 
trailers through the rear door directly to docks, ramps, and other 
devices (Exs. 124; 187; 190; 220). Stakeholders who said workers climb 
on rolling stock and motor vehicles stressed the number of workers 
doing so is very low. Conoco Phillips Company said, ``[T]he number of 
employees required to work atop rolling stock is minimal (<1%)'' (Ex. 
OSHA-S029-2006-0662-0320; see also Exs. 148 (NGFA--``At best, a small 
percentage of the employees . . . are exposed); 181 (American Truck 
Dealers/National Automobile Dealers Association (ATD/NADA)--less than 
10 percent of employees)).
    Other stakeholders, however, including some who oppose requiring 
fall protection, said a significant number/percentage of employees must 
climb on or access the tops of rolling stock and motor vehicles to 
perform a wide range of tasks, including loading/unloading, tarping, 
maintenance and repair, inspections, sampling, snow and ice removal, 
and other tasks (e.g., Exs. 63; 121; 158; OSHA-S029-2006-0662-0350). 
For instance, Clear Channel Outdoors (CCO) said that nearly 80 percent 
of their field employees climb on motor vehicles (Ex. 121). Ferro 
Corporation estimated that almost one-half of employees at a typical 
plant climb onto the top of rolling stock and bulk trucks to perform 
tasks (Ex. OSHA-S029-2006-0662-0177).
    Second, a number of stakeholders stated that fall protection is not 
necessary on rolling stock and motor vehicles because worker exposure 
to fall hazards is limited. Several stakeholders said exposure is 
``infrequent,'' ``brief and sporadic'' (Exs. 124; 181; 183; 187;

[[Page 82506]]

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

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

    The Cargo Tank Risk Management Committee (CTRMC) stated:

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

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

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

    Cameron Baker, with Standfast USA, testified that one truck company 
with more than 900 drivers, reported an average of 31 falls per year 
during a nine-year period (1998-2006) (Exs. 329 (1/20/2011, pgs. 151-
52); 355-11). He estimated that the total cost to the company for those 
fall injures was $3.33 million (Ex. 355-11). Standfast also submitted 
information indicating that rolling stock and motor vehicle fall 
injuries are increasing (Ex. 355-11).
    Fifth and finally, a number of stakeholders said employers already 
are using effective measures to protect workers on rolling stock and 
motor vehicles and requiring additional measures in the final rule will 
not increase worker safety (e.g., Exs. 63; 121; 124; 142; 147; 148; 
158; 162; 169; 181; 190; 335). The measures these stakeholders are 
using include:
     Conventional fall protection system such as cable line and 
retractable lifeline systems; work platforms with railings/guardrails; 
walkways with railings; and portable access systems with railings or 
safety cages; ladders with railings (Exs. 63; 124; 148; 158; 162; 169; 
181; 335);
     Anti-slip surfaces on motor vehicle walkways (Ex. 158);
     Initial, periodic, and remedial training, which is the 
only measure some stakeholders use (e.g., Exs. 63; 121; 124; 142; 148; 
158; 162; 169; 181; 190);
     Work practices such as site-specific loading/unloading 
protocols and safe climbing techniques (e.g., 3-point climbing); and 
loading/unloading trailers from the ground (e.g., bottom-loading 
tankers, ground-level controls) (Ex. 148; 158; 181; 192; 326; 335; 
OSHA-S029-2006-0662-0314); and
     Administrative controls, including ``blue-flagging'' rail 
cars on isolated tracks to prevent moving while employees are on them, 
prohibiting workers from being on moving rolling stock, and keeping 
employees off railcars in unsafe weather conditions (e.g., ice, sleet, 
high winds) (e.g., Ex. 148).
    However, as mentioned, other stakeholders believe requiring fall 
protection on rolling stock and motor vehicles is necessary because 
many employers have not implemented readily available controls even 
though their workers are exposed to fall hazards on rolling stock and 
motor vehicles and fall injuries and fatalities are occurring in the 
railroad and truck transportation industries (e.g., Exs. 127; 130; 155; 
185; 198; 257; 307; OSHA-S029-2006-0662-0195; OSHA-S029-2006-0662-0196; 
OSHA-S029-2006-0662-0207; OSHA-S029-2006-0662-0227; OSHA-S029-2006-
0662-0234; OSHA-S029-2006-0662-0247; OSHA-S029-2006-0662-0310; OSHA-
S029-2006-0662-0329). FPS, for instance, pointed out that the lost-
workday injury rates due to falls from elevations in the rail 
transportation and truck transportation industries are 25.9 and 29.1 
lost workdays per 10,000 employees, respectively (Ex. 130).
    Greater hazard. Several stakeholders oppose requiring fall 
protection on rolling stock and motor vehicles because they say it 
would expose workers to a ``greater hazard'' than working without any 
protection (Exs. 121; 124; 181; OSHA-S029-2006-0662-0219; OSHA-S029-
2006-0662-0232; OSHA-S029-2006-0662-0244). To establish that an OSHA 
standard creates a greater hazard, an employer must prove, among other 
things, that the hazards of complying with the standard are greater 
than those of not complying, and alternative means of employee 
protection are not available (Bancker Construction Corp., v. Reich, 31 
F.2d 32, 34 (2d Cir. 1994); Dole v. Williams Enterprises, Inc., 876 
F.2d 186, 188 (D.C. Cir. 1989)). The Occupational

[[Page 82507]]

Safety and Health Review Commission has held that the employer must 
establish that complying with a standard would be more dangerous than 
allowing employees to work without compliance (Secretary of Labor v. 
Spancrete Northeast, Inc., 16 BNA OSHC 1616, aff. 40 F.3d 1237 (2d Cir. 
1994)).
    Stakeholders said that requiring personal fall protection systems 
on rolling stock and motor vehicles could create a greater risk by 
causing ``entanglement with moving parts'' (Ex. 124) and creating trip 
hazards (Exs. 181; OSHA-S029-2006-0662-0244). They also said requiring 
workers ``to continually tie and untie from a variety of anchorage 
points when the employee accesses and moves around'' rolling stock or 
motor vehicles also could create a greater hazard (Ex. 121; OSHA-S029-
2006-0662-0244). Keller and Heckman explained:

    [T]he worker would first have to climb or otherwise travel to 
the anchorage location to attach and then detach from the anchorage, 
which might very well pose a greater hazard than simply working 
carefully without fall protection (Ex. OSHA-S029-2006-0662-0244).

However, these stakeholders did not identify instances in which workers 
were injured while using personal fall protection systems on rolling 
stock and motor vehicles.
    Also, these stakeholders did not show that there are no alternative 
fall protection measures or systems available to protect workers. In 
fact, these and other stakeholders identified various types of fall 
protection systems that they and other employers are using successfully 
to protect employees working on rolling stock and motor vehicles (e.g., 
Exs. 63; 124; 130; 148; 158; 162; 181; 185; 198; 307; 335; OSHA-S029-
2006-0662-0207; OSHA-S029-2006-0662-0208). In point, although ATD/NADA 
asserted that requiring fall protection on rolling stock and motor 
vehicles would create a greater hazard, they also said:

    Dealerships often use railing-equipped metal stairs with 
lockable casters or other ladder systems to reach the sides and tops 
of trucks, tractors, or trailers, thereby reducing the need to climb 
on the vehicles themselves. When and where used, mobile work 
platforms and scaffolds have adjustable `maximum' heights and are 
equipped with side rails and toe boards to prevent falling or 
tripping from the top section. . . . Paint booths often have mobile 
or stationary stair platforms equipped with railings and safety 
chains (Ex. 181).

    Technological feasibility. As discussed in Pertinent Legal 
Authority (Section III), OSHA must prove, by substantial evidence in 
the rulemaking record that its standards are technologically and 
economically feasible, which the Supreme Court has defined as ``capable 
of being done, executed, or effected'' (American Textile Mfrs. Inst. v. 
Donovan (Cotton Dust), 452 U.S. 490, 506 n. 25 (1981)). A standard is 
technologically feasible if the protective measures it requires already 
exist, can be brought into existence with available technology, or can 
be created with technology that can reasonably be expected to be 
developed (Cotton Dust, 452 U.S. at 513; United Steelworkers v. 
Marshall (Lead I), 647 F.2d 1189, 1272 (D.C. Cir, 1980), cert. denied, 
453 U.S. 913 (1981)). OSHA is not bound by the ``technological status 
quo.'' The Agency can be ``technology-forcing,'' that is, giving 
industry a reasonable amount of time to develop new technologies (Lead 
I, 647 F.2d at 1264).\5\
---------------------------------------------------------------------------

    \5\ A determination of feasibility at the time a standard is 
promulgated establishes a rebuttable presumption of feasibility. 
Employers subject to an enforcement action can overcome this 
presumption by demonstrating that the controls or action the 
standard requires are not feasible for its operation (Lead I, 647 
F.2d at 1272).
---------------------------------------------------------------------------

    Stakeholders asserted various reasons why they believe it is not 
technologically feasible to require fall protection on rolling stock 
and motor vehicles that are not located in or contiguous to a building 
or other structure. First, several stakeholders contend that guardrail 
systems, safety net systems, and personal fall protection system are 
not feasible in those locations (e.g., Exs. 158; 326; 329 (1/20/2011, 
pgs. 156-58); OSHA-S029-2006-0662-0314).
    Standfast USA said safety net systems are difficult to deploy and 
guardrail systems either obstruct loading racks or cannot be raised 
when the racks are present (Ex. 329 (1/20/2011, pgs. 156-58)).
    Regarding personal fall protection systems, stakeholders stated 
there is no place to install anchorage points when rolling stock and 
motor vehicles are not located in or contiguous to a building or 
structure (e.g., Exs. 121; 124; 126; 187; 192; 326; OSHA-S029-2006-
0662-0237; OSHA-S029-2006-0662-0244), and attaching them to the rolling 
stock and motor vehicles is not feasible because the personal fall 
protection system would compromise the strength or structural integrity 
of the vehicles, which are made of aluminum, which ``fatigues over 
time'' (Ex. 158; OSHA-S029-2006-0662-0219).
    However, other stakeholders submitted evidence showing that 
controls are available and in use on rolling stock and motor vehicles 
regardless of location (e.g., Exs. 63; 130; 158; 161; 169; 185; 307; 
335; OSHA-S029-2006-0662-0207; OSHA-S029-2006-0662-0208; OSHA-S029-
2006-0662-0329; OSHA-S029-2006-0662-0350; OSHA-S029-2006-0662-0373). 
For example, the American Feed Industry Association (AFIA) said members 
have found guardrail systems (i.e., railed walkways and catwalks; 
``pop-up''/collapsible handrails) to be ``very effective'' regardless 
of where rolling stock and motor vehicles are located (Ex. 158; see 
also Exs. 161; 169; 335; OSHA-S029-2006-0662-0207; OSHA-S029-2006-0662-
0208; OSHA-S029-2006-0662-0350; OSHA-S029-2006-0662-0373). In addition, 
stakeholders submitted evidence showing that personal fall protection 
systems are available and in use in a broad range of industries, 
regardless of the location of the rolling stock and motor vehicles 
(e.g., Exs. 130; 148; 158; 198; 307; 355; OSHA-S029-2006-0662-0208; 
OSHA-S029-2006-0662-0373). Some of these systems are attached to 
rolling stock and motor vehicles (e.g., Exs. 307; 355; OSHA-S029-2006-
0662-0208), while others are stand-alone or portable, wheel-mounted 
overhead systems that employers can use in open yards and other 
locations (e.g., Exs. 148; 158; 198; 355-2; OSHA-S029-2006-0662-0373).
    Second, several stakeholders stated that retrofitting rolling stock 
and motor vehicles with fall protection is not feasible (Exs. 63; 158; 
190; 192; 329 (1/20/2011, pgs. 112-13); 335; OSHA-S029-2006-0662-0219). 
McNeilus Trucking, for instance, said retrofitting could affect the 
structural integrity or performance of rolling stock and motor vehicles 
(Ex. OSHA-S029-2006-0662-0219. See also Ex. 158). ILTA testified that 
although fall protection systems ``are very routinely part of the 
initial design'' in new equipment, existing rolling stock and motor 
vehicles ``do not have assets that would readily accept a fall 
protection system'':

    It's not easy to take these piping manifolds and just simply 
overlay a superstructure in many cases. . . . [W]hen we're looking 
at older installations that might require retrofitting where . . . 
retrofit really does require complete bulldoze and start over'' (Ex. 
329 (1/20/2011, pgs. 112-13). See also Ex. 335).

    Other stakeholders, including industry associations, commented that 
rolling stock and motor vehicles have been retrofitted with fall 
protection systems (e.g., Exs. 307; 335; 355), and pointed out that 
there are many other types of portable and stand-alone fall protection 
systems (e.g., overhead

[[Page 82508]]

trolley rail systems) available and in use instead of retrofitting 
rolling stock and motor vehicles (e.g., Exs. 130; 198; 307; 329 (1/18/
2011, pgs. 90-92); 355; OSHA-S029-2006-0662-0207; OSHA-S029-2006-0662-
0208; OSHA-S029-2006-0662-0373).
    Third, some stakeholders asserted fall protection on rolling stock 
and motor vehicles is not feasible because of circumstances beyond 
their control (Exs. 148; 181; 326). These stakeholders said, for 
example, they cannot install fall protection systems because they do 
not own the motor vehicles (i.e., leased fleet, belong to customers, 
are inventory for sale) or rail carriers prohibit them from modifying 
rolling stock without prior approval. Some stakeholders said FRA and 
FMCSA requirements prevent them from using fall protection (Exs. 148; 
326). For instance, NGFA stated that members cannot install fall 
protection on rolling stock because of FRA ``clearance envelope'' 
requirements (Ex. 148). Similarly, Southeast Transportation Systems 
(STS) said FMCSA rules on motor vehicle weight, height, width, length, 
and accessory design (e.g., ladders) ``are just some of the factors 
preventing the use of conventional fall protection systems'' (Ex. 326. 
See also Exs. 158; OSHA-S029-2006-0662-0226). AFIA agreed:

    Bulk feed transportation equipment must meet maximum height 
constraints in order to comply with Department of Transportation 
regulations. The maximum allowable height of trucks and trailers is 
13'6''. Since the top of our equipment is approximately 13' high, 
the industry is limited in positioning additional structures above 
this height (Ex. 158).

    Other evidence in the record, however, indicates that there are 
many portable and stand-alone fall protection systems available and in 
use today in both the rail and truck transportation industries, 
including overhead cable line systems, moveable stairs with railings, 
mobile access platforms with railings and/or safety cages and overhead 
tarping systems (e.g., Exs. 198; 302; 355; OSHA-S029-2006-0662-0350; 
OSHA-S029-2006-0662-0373). For example, an NGFA survey revealed that 
nearly 40 percent of their member facilities have installed overhead 
fall protection systems in railcar loading areas (Ex. 148. See also 63; 
182; 335). The truck transportation industry has implemented a number 
of fall protection systems, including portable and adjustable access 
platforms/racks with railings or safety cages; pedestal platforms; 
collapsible outer rails; and walkways with collapsible railings (e.g., 
Exs. 63; 357). Some stakeholders, including truck transportation 
industry companies and associations, also pointed to the increasing use 
of bottom-loading tanks and hoppers, which work even where there are 
external constraints (e.g., Exs. 63; 158; 329 (1/20/2011, p. 143)).
    Fall protection system manufacturers indicated that, based on their 
experience, ``it is feasible and practical to provide workers with 
active or passive means of fall protection [for working on rolling 
stock and motor vehicles] in nearly every work situation'' (Ex. 329 (1/
18/2011, pgs. 82-83); see also Exs. 130; 185; 198; 307; 329 (1/18/2011, 
pgs. 90-92, 164-66); 329 (1/20/2011) pgs. 144, 149-75); 355-2; 355-12; 
OSHA-S029-2006-0662-0207; OSHA-S029-2006-0662-0208; OSHA-S029-2006-
0662-0329; OSHA-S029-2006-0662-0350; OSHA-S029-2006-0662-0373). For 
example, FPS, which by 2003 already had provided more than 13,000 fall 
protection systems to the rail and trucking industries, said they have 
found ``no technological or economic obstacles'' to prevent employers 
from providing fall protection equipment for rolling stock and motor 
vehicles regardless of their location (Ex. 130). For many years, 
manufacturers have been producing rolling stock and motor vehicle fall 
protection systems especially designed for use in locations that are 
not in or contiguous to buildings or other structures (e.g., Exs. 130, 
307; 329 (1/18/2011, pgs. 82-83, 90-92); 329 (1/20/2011, pgs. 149-75, 
188); 355; OSHA-S029-2006-0662-0208; OSHA-S029-2006-0662-0373). They 
also have designed, and employers are using, technological advancements 
that have eliminated the need for workers to climb on rolling stock and 
motor vehicles (Exs. 302; 329 (1/20/2011, pgs. 144-45, 149-75, 188); 
355; OSHA-S029-2006-0662-0207; OSHA-S029-2006-0662-0208; OSHA-S029-
2006-0662-0373). These advancements include tanker and hopper trucks 
that load/unload from the bottom; automated loading/unloading and 
tarping systems operated by ground-level controls (Exs. 63; 302; 329 
(1/20/2011, pg. 143); see also Ex. 158). Several industry associations 
said member companies are increasingly purchasing these new 
technologies (Exs. 63; 158; 302). Safety and engineering consultants 
confirmed the ready availability, effectiveness, and feasibility of the 
new fall protection technologies for rolling stock and motor vehicles 
(Exs. 227; 251; OSHA-S029-2006-0662-0227; OSHA-S029-2006-0662-0350).
    Employers and industry associations submitted information about 
effective fall protection controls that have been implemented (e.g., 
Exs. 63; 148; 158; 162; 169; 181; 182; 220; 326; 335; 337; OSHA-S029-
2006-0662-0177). For example, Ferro Corporation, which installed cable 
line systems over rail cars and work platforms with railings on the top 
of bulk trailers for loading/unloading coatings and other materials 
reported that they have not experienced any falls since installing the 
systems in 2000 (Ex. OSHA-S029-2006-0662-0177; see also Ex. 329 (1/20/
2011, pgs. 149-75)).
    As mentioned, AFIA said member companies have installed several 
types of fall protection systems (e.g., retractable overhead lanyards 
and harnesses, elevated walkways, ``pop-up handrails,'' ground-level 
controls for loading/unloading) that ``have proven to be effective'':

    [T]he additional couple of minutes to don a full body harness 
and attach it to a retractable lanyard are insignificant compared to 
a lost-time accident (Ex. 158).

Industry associations also submitted information showing that a 
significant portion of their member companies already have installed 
fall protection systems for rolling stock and motor vehicles (Exs. 63; 
148; 158; 162; 169; 181; 182; 220; 335; 357). For example, NGFA 
reported that nearly 40 percent of all member facilities already have 
installed overhead fall protection systems in railcar loading areas 
(Ex. 148). Even ``country elevators,'' which generally load only one- 
to three-railcar units, already have installed retractable safety lines 
and electronic systems operated from ground level (Ex. 148; see also, 
Ex. 220). CTRMC submitted photographs showing fall protection systems 
already in use on cargo tank trucks in their industry, including tank 
trucks located ``in the field'' (Ex. 63).
    OSHA believes the evidence employers and industry associations 
submitted shows it is technologically feasible in many cases for 
employers to provide fall protection for rolling stock and motor 
vehicles regardless of their location.
    Jurisdiction. Several stakeholders oppose covering rolling stock 
and motor vehicles in the final rule because they contend that OSHA 
either lacks authority to require employers to provide fall protection 
for employees who work on rolling stock and motor vehicles, or should 
allow the FRA or FMCSA to exercise complete authority for regulating 
rolling stock and motor vehicles, respectively (Exs. 124; 187; 326; 
OSHA-S029-2006-0662-0202; OSHA-S029-2006-0662-0232).
    Regarding rolling stock, FRA said the Federal Railroad Safety Act 
(FRSA) grants them broad authority to regulate

[[Page 82509]]

railroad safety and they have promulgated regulations to protect 
railroad employees from falling off of rolling stock (OSHA-S029-2006-
0662-0232. See also OSHA-S029-2006-0662-0206). Therefore, they contend 
that Section 4(b)(1) of the OSH Act (29 U.S.C. 653(b)(1)) \6\ 
``displaces OSHA'' from regulating rolling stock. FRA also pointed out 
that its ``Railroad Occupational Safety and Health Standards'' Policy 
Statement states that FRA exercises complete authority for ``railroad 
operations,'' which is the movement of equipment over the rails. FRA 
said this authority includes design of ``rolling equipment used on a 
railroad, since working conditions related to such surfaces are 
regulated by FRA as major aspects of railroad operations'' (43 FR 
10583, 10587 (3/14/1978)).
---------------------------------------------------------------------------

    \6\ Section 4(b)(1) specifies: Nothing in this chapter shall 
apply to working conditions of employers with respect to which other 
Federal agencies . . . exercise statutory authority to prescribe or 
enforce standards or regulations affecting occupational safety and 
health (29 U.S.C. 653(b)(1)).
---------------------------------------------------------------------------

    In the preamble to the proposed rule, OSHA acknowledged that FRA 
has authority to regulate ``railroad operations'' (75 FR 28867). At the 
same time, OSHA noted that the FRA Policy Statement also recognizes 
that OSHA has authority for certain ``occupational safety and health'' 
issues in the railroad industry:

    FRA recognizes that OSHA currently is not precluded from 
exercising jurisdiction with respect to conditions not rooted in 
railroad operations nor so closely related to railroad operations as 
to require regulation by FRA in the interest of controlling 
predominant operational hazards (43 FR 10587).

Consistent with the Policy Statement, OSHA has authority over working 
conditions that do not constitute ``railroad operations,'' such as 
loading/unloading rolling stock by non-railroad employees off railroad 
property.
    The American Railroad Association (ARA) said OSHA should allow the 
FRA to exercise authority over rolling stock for two reasons. First, 
they said rolling stock presents ``special concerns, such as clearance 
issues in rail tunnels and the unique configuration of rolling stock.'' 
Second, they said FRA, not OSHA, has ``expertise to determine when 
regulations [on rolling stock] are necessary and the content of those 
regulations'' (Ex. OSHA-S029-2006-0662-0202). OSHA believes it also has 
the expertise to address fall hazards on rolling stock. That said, 
``[i]n the past, FRA and OSHA have closely coordinated their mutual 
efforts to improve workplace safety in the rail industry'' and OSHA 
``is committed to continuing working cooperatively'' with FRA to 
maintain and further develop its expertise in rail industry safety (Ex. 
OSHA-S029-2006-0662-0232).
    With regard to commercial motor vehicles, stakeholders asserted 
that, under Section 4(b)(1), the Motor Carrier Safety Act (MCSA) 
preempts OSHA from regulating commercial motor vehicles (Exs. 124; 187; 
326). The MCSA defines ``commercial motor vehicle'' as a self-propelled 
or towed vehicle used on the highways in interstate commerce to 
transport passengers or property, if the vehicle:
     Has a gross vehicle weight rating or gross vehicle weight 
of at least 10,001 pounds, whichever is greater;
     Is designed or used to transport more than 8 passengers 
(including the driver) for compensation;
     Is designed or used to transport more than 15 passengers, 
including the driver, and is not used to transport passengers for 
compensation; or
     Is used in transporting material found by the Secretary of 
Transportation to be hazardous under section 5103 of this title and 
transported in a quantity requiring placarding under regulations 
prescribed by the Secretary under section 5103 (49 U.S.C. 31132).
    However, as interpreted by the courts and the Occupational Safety 
and Health Review Commission, section 4(b)(1) does not create an 
industry-wide exemption. Rather, it preempts OSHA regulation of a 
particular workplace hazard addressed by the regulation of another 
agency. Thus, an OSHA standard is preempted by the MCSA only to the 
extent that the FMCSA has adopted a regulation for commercial motor 
vehicles addressing the hazard. For example, FMCSA addresses fall 
hazards for certain commercial motor vehicles in 49 CFR part 399. Since 
the Agency did not propose any specific fall protection requirements 
for rolling stock or motor vehicles, OSHA has not included any in this 
final rule. However, it will continue to consider the comments it has 
received, and in the future the Agency may determine whether it is 
appropriate to pursue any action on this issue.
    Construction vs. Maintenance. Some stakeholders expressed concerns 
that OSHA does not clearly delineate what activities are maintenance 
that the proposed general industry rule covers and what are 
construction that fall under OSHA's construction standards (Exs. 124; 
150; 196; 202). For example, SBA Advocacy said participants in their 
small business roundtable were ``confused about which standard applies 
under what circumstances'':

    Participants noted that two employees could be working side by 
side on similar tasks, but one could be covered by the general 
industry standard and the other by the construction standard. 
Representatives expressing these concerns included residential 
construction and remodeling, painting, heating and air conditioning, 
chimney sweeping, and others (Ex. 124).

    In 1994, OSHA clarified the definitions of maintenance v. 
construction activities:

    OSHA's regulations define construction work as ``construction, 
alteration, and/or repair, including painting and decorating.'' They 
further provide that OSHA's construction industry standards apply 
``to every employment and place of employment of every employee 
engaged in construction work.'' . . . In order for work to be 
construction work, the employer need not itself be a construction 
company. . . . Further, construction work is not limited to new 
construction. It includes the repair of existing facilities. The 
replacement of structures and their components is also considered 
construction. . . .
    There is no specified definition for ``maintenance,'' nor is 
there a clear distinction between terms such as ``maintenance,'' 
``repair,'' or ``refurbishment.'' ``Maintenance activities'' can be 
defined by OSHA as making or keeping a structure, fixture or 
foundation (substrates) in proper condition in a routine, scheduled, 
or anticipated fashion. This definition implies ``keeping equipment 
working in its existing state, i.e., preventing its failure or 
decline.'' . . . [D]eterminations of whether [an employer] is 
engaged in maintenance operations rather than construction 
activities must be made on a case-by-case basis (Memorandum for 
Regional Administrators (8/11/1994)).\7\
---------------------------------------------------------------------------

    \7\ OSHA letter to Regional Administrators is available on 
OSHA's Web site at: https://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_id=21569.

    In subsequent letters of interpretation, OSHA identified factors 
the Agency considers in determining whether the activity is maintenance 
or construction and applied them to specific examples (Letter to 
Randall Tindell (2/1/1999); \8\ Letter to J. Nigel Ellis (5/11/1999)); 
\9\ Letter to Raymond Knobbs (11/18/2003) \10\). Those factors include:
---------------------------------------------------------------------------

    \8\ OSHA letter to Mr. Tindall is available on OSHA's Web site 
at: https://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_id=22687.
    \9\ OSHA letter to Mr. Ellis is available on OSHA's Web site at: 
https://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_id=23328.
    \10\ OSHA letter to Mr. Raymond Knobbs is available on OSHA's 
Web site at: https://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_id=24789.
---------------------------------------------------------------------------

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

[[Page 82510]]

Replacement with improved equipment is construction;
     Whether the work is scheduled. Activity that is an 
anticipated, routine, and periodic event to keep equipment from 
degrading and maintain it in its existing state is suggestive of 
maintenance. As long as the activity continues to be a scheduled 
activity, the passage of time between the activity, even 10 to 20 
years, normally does not alter the characterization of the activity as 
maintenance;
     The scale and complexity of the activity; which also takes 
into consideration the amount of time and material required to complete 
it. Although a project may not necessarily be large in terms of scale, 
a complex activity in terms of steps involved and tools and equipment 
needed to complete is likely to be construction; and
     The physical size of the object being worked on. Physical 
size can be a factor if, because of its size, the process of removal 
and replacement involves significantly altering the structure or 
equipment that the object is in. Significant alterations of the 
structure or equipment will likely be construction.
    OSHA believes these factors and examples outlined in the letters of 
interpretation provide useful guidance to help employers determine 
whether a particular activity is maintenance or construction. If there 
is an instance where an employer may not be able to easily classify an 
activity as maintenance or construction, when measured against the 
above factors, following the more protective standard will ensure 
compliance.
    In any event, since one of the primary goals of this rulemaking is 
to harmonize the general industry and construction walking-working 
surface standards, OSHA believes the distinction between maintenance 
and construction is of much less significance. As discussed in the 
introduction to the Summary and Explanation (Section IV), in updating 
and revising the walking-working surface standards in subpart D and 
adding new personal fall protection requirements to subpart I, OSHA 
made requirements consistent with construction standards, where 
possible. For example, in final Sec. Sec.  1910.28 and 1910.140, OSHA 
adopts the flexible approach to providing fall protection systems that 
the construction standard codified in 1994. Thus, whether performing 
general industry or construction operations, employers may provide 
personal fall protection systems to protect their workers. OSHA notes 
that in the discussion of provisions in subparts D and I the Agency 
identifies the corresponding construction standards the final rule 
incorporates. As a result, OSHA believes that in most cases employers 
will be able to use the same controls, particularly fall protection 
systems, and follow the same work practices regardless of whether they 
are performing general industry or construction activities.
Paragraph (b)--Definitions
    Final paragraph (b) defines terms that are applicable to all 
sections of final subpart D. For the most part, OSHA drew the final 
definitions from the existing rule (existing Sec.  1910.21(a) through 
(g)), other OSHA standards (e.g., 29 CFR 1926.450, 1926.500, 
1926.1050), and national consensus standards. For example, the Agency 
adopted several definitions from the construction fall protection 
standard (Sec.  1926.500(b)) and revised the language of other 
definitions to make them consistent with definitions in OSHA 
construction standards. The Agency also drew a number of definitions 
from the following national consensus standards, all of which have been 
revised and updated or issued since OSHA adopted existing Sec.  
1910.21(b) in 1971:
     American National Standard Institute (ANSI) A14.1-2007, 
American National Standard for Safety Requirements for Portable Wood 
Ladders (ANSI A14.1-2007) (Ex. 376);
     American National Standard Institute (ANSI) A14.2-2007, 
American National Standard for Safety Requirements for Portable Metal 
Ladders (ANSI A14.2-2007) (Ex. 377);
     American National Standard Institute (ANSI) A14.3-2008, 
American National Standard for Ladders--Fixed--Safety Requirements 
(ANSI A14.3-2008) (Ex. 378);
     American National Standard Institute (ANSI) A14.5-2007, 
American National Standard for Safety Requirements for Portable 
Reinforced Plastic Ladders (ANSI A14.5-2007) (Ex. 391);
     American National Standard Institute (ANSI) A14.7-2011, 
Safety Requirements for Mobile Ladder Stands and Mobile Ladder Stand 
Platforms (ANSI A14.7-2011) (Ex. 379);
     American National Standard Institute/American Society of 
Safety Engineers (ANSI/ASSE) A10.18-2012, Safety Requirements for 
Temporary Roof and Floor Holes, Wall Openings, Stairways, and Other 
Unprotected Edges in Construction and Demolition Operations (ANSI/ASSE 
A10.18-2012) (Ex. 388);
     American National Standard Institute/American Society of 
Safety Engineers (ANSI/ASSE) A10.32-2012, Fall Protection Systems--
American National Standard for Construction and Demolition Operations 
(Ex. 390);
     American National Standard Institute/American Society of 
Safety Engineers (ANSI/ASSE) A1264.1-2007, Safety Requirements for 
Workplace Walking/Working Surfaces and Their Access; Workplace, Floor, 
Wall and Roof Openings; Stairs and Guardrail Systems (ANSI/ASSE 
A1264.1-2007) (Ex. 13);
     American National Standard Institute/American Society of 
Safety Engineers (ANSI/ASSE) Z359.0-2012, Definitions and Nomenclature 
Used for Fall Protection and Fall Arrest (ANSI/ASSE Z359.0-2012) (Ex. 
389);
     American National Standard Institute/International Window 
Cleaning Association (ANSI/IWCA) I-14.1-2001, Window Cleaning Safety 
(ANSI/IWCA I-14.1-2001) (Ex. 14);
     American National Standard Institute (ANSI) MH30.2-2005, 
Portable Dock Leveling Devices: Safety, Performance and Testing (ANSI 
MH30.2-2005) (Ex. 20);
     National Fire Protection Association (NFPA) 101-2012, Life 
Safety Code (NFPA 101-2012) (Ex. 385); and
     International Code Council (ICC) International Building 
Code-2012 (IBC-2012) (Ex. 386).
    Final paragraph (b) differs from the existing and proposed rules in 
several respects. First, the final rule eliminates a number of terms 
the regulatory text no longer uses. The final rule does not retain the 
proposed definitions for the following terms because OSHA did not use 
these terms in final subpart D: ``qualified climber,'' ``safety 
factor,'' and ``single-point adjustable suspension scaffold.''
    Second, in addition to the definitions in the proposed rule, final 
paragraph (b) adds a number of new definitions, including 
``anchorage,'' ``dangerous equipment,'' ``low-slope roof,'' ``personal 
fall arrest system,'' ``personal fall protection system,'' 
``positioning system (work-positioning system),'' ``stairway 
(stairs),'' ``travel restraint system,'' and ``warning line.'' Most of 
the definitions are commonly used terms that pertain to new control 
methods that the final rule allows employers to use to protect workers 
from falling. For example, several definitions relate to personal fall 
protection systems, which the final rule allows employers to use 
instead of guardrails, cages, and wells specified by the existing rule.
    Third, final paragraph (b) revises existing definitions to make 
them consistent with OSHA's construction

[[Page 82511]]

standards (e.g., Sec. Sec.  1926.450, 1926.500, 1926.1050). OSHA is 
aware that many employers and workers perform both general industry and 
construction activities, and the Agency believes that making the 
standards, including terminology, consistent will help those employers 
better understand and fully comply with the final rule.
    Fourth, final paragraph (b), like the proposed rule, reorganizes 
the terms and definitions and clarifies that they are applicable to 
every section of subpart D. By contrast, the existing rule in Sec.  
1910.21 lists the terms and definitions for each section of subpart D 
separately. Consequently, because the existing rule uses some terms in 
more than one section of subpart D, it defines those terms multiple 
times. Final paragraph (b) eliminates this unnecessary repetition, 
thereby making the final rule easier to understand.
    Fifth, and finally, in revising final paragraph (b), OSHA used 
plain and performance-based language. The Agency believes these types 
of revisions make the terms and definitions easy for employers and 
workers to understand, and clarifies several issues raised by 
stakeholders (discussed below).
    The following paragraphs discuss the terms and definitions included 
in final paragraph (b).
    Alternating tread-type stair. The final rule, similar to the 
proposal, defines this term as a type of stairway that consists of a 
series of treads usually attached to a center support in an alternating 
manner, such that a worker typically does not have both feet on the 
same level while using the stairway. The limited width of the treads 
makes it difficult or impossible for workers to place both feet on a 
single tread. OSHA does not consider alternating tread-type stairs to 
be ``standard stairs'' as defined in final Sec.  1910.21(b).
    The existing rule did not specifically address or define 
alternating tread-type stairs. The definition in the final rule is 
consistent with ANSI/ASSE A1264.1-2007. OSHA received no comments on 
the proposed definition and adopts it as discussed.
    Anchorage. This is a new term added to the final rule. An anchorage 
is defined as a secure point of attachment for equipment such as 
lifelines, lanyards, deceleration devices and rope descent systems. 
Anchorages can also be a component of a fall protection system. An 
anchorage may be installed to serve such purpose or may be a fixed 
structural member such as a post, beam, girder, column, floor, or wall 
that is an integral part of a structure. An anchorage must be capable 
of safely supporting the impact forces applied by a fall protection 
system.
    OSHA drew the term and definition for ``anchorage'' from the Sec.  
1910.140, Personal fall protection systems. The definition is 
consistent with the construction fall protection (Sec.  1926.500(b)), 
the general industry powered platforms (Sec. Sec.  1910.66, appendix C, 
Section I(b)), and the shipyard-employment fall protection standards 
(Sec.  1915.151(b)). It also is consistent with the ``anchorage'' 
definition in ANSI/ASSE A10.32-2012 (Section 2.4) and ANSI/ASSE Z359.0-
2012 (Section 2.5). See Sec.  1910.140 for additional information and 
discussion of stakeholder comments on the definition of ``anchorage.''
    Authorized. This final term, like the proposal, refers to a worker 
who the employer assigns to perform a specific type of duty, or be in a 
specific location or area in the workplace. The work that authorized 
employees perform and the work locations where they work often involve 
situations or conditions where fall hazards are present, such as the 
working side of teeming or slaughtering platforms, and open/unguarded 
repair pits.
    OSHA notes that once the employer assigns an authorized employee to 
perform certain work tasks or to be in a certain location, the worker 
may continue to perform those tasks or be in such work locations 
without further approval. OSHA did not receive any comments on the 
proposed definition and adopts it as discussed.
    Cage. This term in the final rule, like the proposal, means an 
enclosure mounted on the side rails of a fixed ladder or fastened to a 
structure behind the fixed ladder. The final definition also specifies 
that a cage surrounds the climbing space of the ladder. This will 
contain the worker and direct a falling worker to a lower landing. A 
cage may also be called a ``cage guard'' or ``basket guard.''
    This definition is essentially the same as the definition for 
``cage'' found in existing Sec.  1910.21(e)(11); it also is consistent 
with ANSI A14.3-2008, American National Standard for Ladders--Fixed--
Safety Requirements. OSHA did not receive any comments on the proposed 
definition and adopts it with only minor revisions for clarity.
    Carrier. Final paragraph (b), similar to the proposed rule, defines 
a carrier as the track of a ladder safety system that consists of a 
flexible cable or rigid rail attached to the fixed ladder or 
immediately adjacent to it. The final definition is consistent with 
ANSI A14.3-2008 (Section 3). The final rule clarifies that fixed 
ladders may have carriers mounted to them, usually onto the ladder face 
or immediately adjacent to the ladder. OSHA received no comments on the 
proposed definition and adopts it with the clarifications discussed.
    Combination ladder. Final paragraph (b), like the proposed rule, 
defines a combination ladder as a portable ladder that an employer can 
use as a stepladder, extension ladder, trestle ladder, or a stairway 
ladder. The final definition also specifies that employers may use the 
components of a combination ladder separately as a single ladder.
    The final definition is consistent with ANSI A14.1-2007, ANSI 
A14.2-2007, and ANSI A14.5-2007. OSHA did not receive any comments on 
the proposed definition and adopts it with only minor revisions for 
clarity.
    Dangerous equipment. The final rule adds this term and defines it 
as equipment, such as vats, tanks, electrical equipment, machinery, 
equipment or machinery with protruding parts, or other similar units 
that, because of their function or form, may harm an employee who falls 
into or onto it.
    This new definition was added in response to a recommendation from 
Northrop Grumman Shipbuilding that OSHA define ``dangerous equipment'' 
in the final rule (Ex. 180). OSHA drew the new definition from the 
construction fall protection standard (Sec.  1926.500(b)).
    Designated area. This term means a distinct portion of a walking-
working surface delineated by a warning line in which work may be 
performed without additional fall protection. Examples of additional 
fall protection include guardrails, safety nets, and personal fall 
protection systems. As mentioned in the proposed rule and in the 
discussion of final Sec.  1910.28(b)(13), a designated area is a non-
conventional fall protection method.
    The final rule allows employers to use designated areas for work on 
low-slope roofs (final Sec.  1910.28(b)(13)). The concept of a 
designated area in the final rule is similar to controlled access zones 
and warning line systems in OSHA's construction fall protection 
standards (Sec. Sec.  1926.500(b) and 1916.502(g) and (h)), which also 
do not require the use of conventional fall protection in specified 
situations.
    The final definition differs from the proposal in that the proposed 
definition included the term ``temporary'' work, while the final does 
not. OSHA continues to believe that employers need to limit use of 
designated areas to short and brief tasks, such as equipment repair or 
annual maintenance, that

[[Page 82512]]

workers perform on infrequent occasions; i.e., employers are not to use 
designated areas for lengthy or routine jobs that involve frequent 
exposure to fall hazards. However, including ``temporary'' in the 
definition is unnecessary because final Sec.  1910.28(b)(13)(ii) 
already limits the use of designated areas to work that is both 
temporary and infrequent. OSHA did not receive any comments on the 
proposed definition and adopts it as discussed.
    Dockboard. In the final rule, dockboard means a portable or fixed 
device that spans a gap or compensates for the difference in elevation 
between a loading platform and a transport vehicle. The definition also 
specifies that dockboards include, but are not limited to, bridge 
plates, dock plates, and dock levelers. Examples of transport vehicles 
include motor vehicles, trucks, trailers, rail cars, and other 
vehicles.
    The final rule uses the term ``transport vehicle'' in place of the 
proposed term ``carrier.'' OSHA believes ``transport vehicle'' is clear 
and familiar to employers as it is a commonly used term for a cargo-
carrying vehicle. The Agency drew the term from ANSI MH30.2-2005.
    The final rule adds examples of devices that OSHA includes within 
the definition of dockboards, including bridge plates, dock plates, and 
dock levelers. The Agency believes that providing these examples will 
help employers and workers better understand whether devices 
manufactured under other names are ``dockboards.'' OSHA notes that the 
list of dockboard examples is not exhaustive. That is, any device that 
employers use to span a gap or compensate for the difference in levels 
between a loading platform and transport vehicle is a dockboard for the 
purposes of final subpart D.
    OSHA did not receive any comments on the proposed definition and 
adopts the definition with the changes discussed above.
    Equivalent. In the final rule, this term means alternative designs, 
equipment, materials, or methods that the employer can demonstrate will 
provide an equal or greater degree of safety for workers compared to 
the designs, equipment, materials, or methods specified in this 
subpart.
    OSHA proposed revising the definition of ``equivalent'' in existing 
Sec.  1910.23(g)(6) to incorporate language from the construction 
standards for fall protection, stairways, and ladders standards 
(Sec. Sec.  1926.450(b); 1926.500(b); and 1926.1050(b)). These 
standards specify that the employer has the burden to demonstrate that 
the alternate designs, materials, methods, or items will provide an 
equal or greater degree of safety for workers than the designs, 
materials, methods, or items the final rule specifies or requires. OSHA 
did not receive any comments on the proposed definition and finalizes 
the term so it is consistent with OSHA construction standards.
    Extension ladder. Final paragraph (b), like the proposed rule, 
defines this term as a portable ladder that is non-self-supporting and 
is adjustable in length. The final rule consolidates into one term, and 
simplifies the language in, the definitions in existing Sec.  
1910.23(c)(4) and (d)(4); this existing provision states that an 
extension ladder ``consists of one or more sections traveling in guides 
or brackets so arranged as to permit length adjustment.'' OSHA believes 
that the concise, plain language in the final definition will enhance 
understanding of requirements involving extension ladders; moving the 
specifications currently in the existing standards to final Sec.  
1910.23 also should improve understanding of these requirements.
    The final definition generally is consistent with ANSI A14.1-2007, 
ANSI A14.2-2007, and ANSI A14.5-2007. OSHA did not receive any comments 
on the proposed definition and adopts it as proposed.
    Failure. Final paragraph (b), similar to the proposed rule and 
construction standards (Sec. Sec.  1926.450(b); 1926.500(b); and 
1926.1050(b)), defines ``failure'' as a load refusal, breakage, or 
separation of component parts. The final definition explains that a 
``load refusal'' is the point at which the ultimate strength of a 
component or object is exceeded. To illustrate, if the load exceeds the 
ultimate strength of a walking-working surface, such as an elevated 
work platform, the platform likely will collapse.
    For the purpose of this definition, load refusal includes permanent 
deformation of a component part, which is consistent with ANSI/ASSE 
A1264.1-2007 (Section 2.3). For example, elongation of a connector that 
causes the connector to lose its strength is the type of permanent 
deformation OSHA intends the final definition to cover. Similarly, 
damage to a guardrail system that weakens the bolts or other fasteners 
so the system cannot support a worker's weight is the type of permanent 
deformation the final definition intends to covers.
    OSHA did not receive any comments on the proposed term and 
definition and adopts the definition with minor editorial changes for 
clarity.
    Fall hazard. This term, in the final rule, means any condition on a 
walking-working surface that exposes a worker to a risk of harm from a 
fall on the same level or to a lower level. The final definition is 
almost identical to the proposal; however, the final rule uses ``risk 
of harm'' in place of ``injury.'' It is clear from the Analysis of Risk 
(Section II) section and the Final Economic Analysis (FEA) (Section V) 
that worker exposure to fall hazards can result in death as well as 
injury. OSHA believes the language in the final definition more 
accurately and fully captures the range of adverse outcomes that can 
result from falls.
    In response to the proposal, OSHA received one comment from Mr. 
David Hoberg of DBM Corporations, recommending that OSHA add a specific 
height to the definition of fall hazard (Ex. 206). He said that a 
specific height is needed for enforcement purposes. OSHA disagrees. The 
risk of a fall or other harm exists at any height, including on the 
same level. That said, OSHA has established specific heights that 
trigger fall protection requirements in final Sec.  1910.28. The final 
definition is adopted as proposed.
    Fall protection. The final rule, like the proposed rule, defines 
``fall protection'' as any equipment, device, or system that prevents a 
worker from falling from an elevation or that mitigates the effect of 
such a fall. For the purposes of the final rule, ``mitigates the 
effect'' means that the fall protection prevents the worker from coming 
into contact with a lower level if a fall occurs. As noted in the 
preamble to the proposed standard, examples of fall protection include 
guardrail systems, safety net systems, ladder safety systems, personal 
fall arrest systems, and similar fall protection systems. OSHA did not 
receive any comments on the proposed definition and adopts it with 
minor revisions for clarity.
    Fixed ladder. The final definition of fixed ladder, which is 
generally consistent with existing Sec.  1910.21(e)(2) and the proposed 
rule, means a ladder with rails or individual rungs that is permanently 
attached to a structure, building, or equipment. The definition also 
states that fixed ladders include individual-rung ladders, but do not 
include ship stairs, step bolts, or manhole steps.
    The final definition differs from the existing and proposed rules 
by clarifying what OSHA does not consider to be fixed ladders. 
Accordingly, the final definition specifies that fixed ladders do not 
include ship stairs (ship ladders), step bolts, and manhole steps. 
Although these devices share some of

[[Page 82513]]

the same characteristics of fixed ladders, such as a vertical or steep 
slope, the final rule clarifies that they are not fixed ladders, and 
therefore, are covered under separate provisions of the final rule.
    While fixed ladders include ladders attached to equipment, OSHA 
notes ladders that are designed into or are an integral part of 
machines or equipment are excluded from coverage by final Sec.  
1910.23(a)(2).
    The final definition, as revised, is consistent with OSHA's 
stairways and ladders standard for construction (Sec.  1926.1050(b)) 
and ANSI A14.3-2008 (Section 3). OSHA received no comments on the 
proposed definition and finalizes it with the revisions discussed.
    Grab bar. This term means an individual horizontal or vertical 
handhold installed to provide workers with access above the height of a 
ladder. The final definition revises the existing and proposed rules in 
two respects. First, the final definition adds language indicating that 
employers can use grab bars installed either horizontally or 
vertically. OSHA received one comment about the orientation of grab 
bars. Nigel Ellis, of Ellis Fall Safety Solutions, recommended OSHA 
require employers to use only horizontal grab bars when the length of 
the bars exceeds six inches because it would be impossible to stop 
workers' hands from sliding down the vertical grab bar during a fall 
(Ex. 155). He also cited a University of Michigan study that 
recommended using only horizontally oriented grab bars (Ex. 155, 
discussing Young J, et al. ``Hand-Handhold Coupling: Effective Handle 
Shape, Orientation, and Friction on Breakaway Strength,'' 51 Human 
Factors 705-717 (2009)). OSHA is not adopting Mr. Ellis' 
recommendations because the customary industry practice, as specified 
by the ANSI fixed ladder standard (ANSI A-14.3-2008 (Section 5.3.3.1)), 
is to allow the use of either horizontal or vertical grab bars and not 
to limit the length of vertical grab bars.
    Second, the final definition deletes language in existing Sec.  
1910.21(e)(14) and the proposed rule specifying that employers use only 
grab bars placed adjacent to a ladder or used as an extension of a 
ladder. The final definition revises this language to ensure that 
employers use only grab bars installed above the height of the ladder, 
not adjacent to it. When grab bars are also in a vertical orientation 
relative to a ladder, they are not an extension of the ladder; 
therefore, the final definition removed the language from the proposal 
referring to grab bars as an extension of a ladder.
    Guardrail system. In the final rule, similar to the proposal, this 
term means a barrier erected along an unprotected or exposed side, 
edge, or other area of a walking-working surface to prevent workers 
from falling to a lower level. A guardrail system generally consists of 
vertical, horizontal, or inclined supports; top rails; midrails; 
screens; mesh or solid panels; intermediate vertical members; or other 
equivalent structural members. Guardrail systems can be either 
permanent or removable. The final definition generally is consistent 
with the scaffold and fall protection standards for construction 
(Sec. Sec.  1926.450(b) and 1926.500(b)).
    The proposed and final definition simplify the existing definitions 
in Sec.  1910.21(a)(6) and (g)(7) by consolidating the terms 
``guardrail'' and ``standard railing'' into the single term ``guardrail 
system.'' The existing definitions are similar to, and included within, 
the final definition. As a result, there is no need to include both 
terms and definitions in the final rule since the single term 
``guardrail system'' adequately covers both terms.
    The final rule clarifies the proposed definition by specifying that 
guardrails are barriers that employers may erect on a side, edge, or 
other area of a walking-working surface (e.g., hole). The barrier may 
be a framework or system of individual units used together to provide 
protection. For example, a guardrail system may consist of several 
barriers surrounding a hole.
    OSHA did not receive any comments on the proposed definition and, 
therefore, adopts it as explained.
    Handrail. The final rule, like the proposed rule and the 
construction stairways standard (Sec.  1926.1050(b)), defines a 
handrail as a rail used to provide workers with a handhold for support. 
Handrails may be horizontal, vertical, or sloping. According to ANSI/
ASSE A1264.1-2007 (Sections 2.6 and 2.7), handrails also may be part of 
a stair rail or stair rail system (i.e., the top rail).
    The proposed and final definition simplify and consolidate into one 
term the three definitions for ``handrail'' in the existing rule in 
Sec. Sec.  1910.21(a)(3), (b)(1), and (g)(8). Specifically, the final 
definition deletes existing specifications for the materials (e.g., 
pipe, bar) that employers must use for handrails, which makes the final 
definition consistent with final Sec.  1910.29, Fall protection systems 
criteria and practices. The final definition also is consistent with 
ANSI/ASSE A1264.1-2007 (Section 2.7). OSHA did not receive any comments 
on the proposed definition and adopts the final definition as proposed.
    Hoist area. In the final rule, like the proposal, a hoist area is 
defined as any elevated access opening to a walking-working surface 
through which equipment or materials are loaded or received. The final 
definition deletes the term ``hoisted'' before the phrase ``equipment 
or material'' in the proposed definition because the definition covers 
any means of loading, passing, or receiving equipment or materials 
through the hoist area. OSHA did not receive any comments on the 
proposed definition and finalizes it with the revisions discussed.
    Hole. The final rule, similar to the proposed rule, defines a hole 
as a gap or open space in a floor, roof, horizontal walking-working 
surface, or similar surfaces that is at least two inches in its least 
dimension. Similar surfaces include runways, dockboards, stair treads, 
and other low-slope or inclined surfaces where employees walk or work. 
The existing rule contains four different terms for holes and openings 
in walking-working surfaces: Floor hole (existing Sec.  1910.21(a)(1)), 
floor opening (existing Sec.  1910.21(a)(2)), wall hole (existing Sec.  
1910.21(a)(10)), and wall opening (existing Sec.  1910.21(a)(11)). Each 
of the terms has a separate definition. ANSI/ASSE A1264.1-2007 contains 
the same four terms and definitions.
    The final definition consolidates and simplifies the existing rule 
in two respects. First, the final rule designates a ``hole'' as a gap 
or open space in ``horizontal walking-working surfaces,'' (e.g., floor, 
roof, similar surfaces) and an ``opening'' as a gap or space in 
``vertical walking-working surfaces'' (e.g., wall or partition). The 
final definition of ``hole'' revises the proposed definition by adding 
``horizontal'' and ``similar surfaces'' so employers know holes are not 
limited to floors or roofs.
    Designating the term ``hole'' to refer to gaps in horizontal or 
similar walking-working surfaces allows OSHA to simplify and 
consolidate the existing definitions for ``floor hole'' and ``floor 
opening'' into a single term: ``hole.'' The existing rule in Sec.  
1910.21(a)(1) defines a ``floor hole'' as a gap that is more than one 
inch but less than 12 inches at its least dimension, while existing 
Sec.  1910.21(a)(2) defines a ``floor opening'' as a gap that is 12 
inches or more at its least dimension. Combining the two terms also 
makes the final definition consistent with the definition in the 
construction fall protection standard in Sec.  1926.500(b). The final 
rule, like the proposal, also expands the term ``hole'' to cover gaps 
in roofs and similar horizontal walking-working surfaces, as well as 
floors.

[[Page 82514]]

    Second, consistent with the Plain Writing Act of 2010, the final 
definition substitutes ``open space'' for ``void'' to make the term 
easier to understand.
    OSHA received one comment on the proposed rule. Mark Damon, of 
Damon, Inc., questioned the need for a definition of hole in a fall 
protection standard, asserting that workers could not fall through a 
two-inch or larger gap (Ex. 251). OSHA disagrees with Mr. Damon's 
assertion. Although a worker cannot fall through a narrow (2-inch) hole 
in a walking-working surface, such holes can cause workers to trip and 
fall on the same level or to a lower level. Such falls can result in 
worker injury or death. As such, OSHA is retaining the definition with 
the changes discussed above.
    Individual-rung ladder. This is a type of fixed ladder that has 
rungs individually attached to a building or structure. It does not 
include manhole steps. The proposed rule also excluded manhole steps.
    Although manhole steps have individual rungs, they involve unique 
conditions, and OSHA addresses these conditions in a separate section 
of final subpart D (Sec.  1910.24). Therefore, the final definition 
excludes manhole steps from the individual-rung ladder definition to 
prevent any confusion and emphasize that final Sec.  1910.24, not final 
Sec.  1910.23 applies to manhole steps.
    The proposed rule also included ladders consisting of rungs 
individually attached to a piece of equipment. Because final rule Sec.  
1910.23(a)(2) excludes ladders designed into or integral to a piece of 
equipment, there was no need to include such ladders within the 
definition of individual rung ladders.
    OSHA did not receive any comments on the proposed definition and 
adopts it with the revisions discussed above.
    Ladder. This term means a device with rungs, steps, or cleats used 
to gain access to a different elevation. The final rule simplifies and 
consolidates into one definition the three definitions of ``ladder'' in 
the existing rule in Sec.  1910.21(c)(1), (d)(1), and (e)(1). The final 
definition also eliminates references to ladder specifications (e.g., 
``joined at regular intervals'') since they simply repeat requirements 
addressed by final Sec.  1910.23.
    OSHA received one comment on the proposed ``ladder'' definition. 
Steve Smith, of Verallia, recommended that OSHA clarify the term 
because he said that the phrase ``a device with steps'' is ambiguous 
and could include stairs as well as a ladder (Ex. 171). OSHA does not 
agree that stakeholders might mistakenly think the term ``ladder'' 
includes stairs. The proposed and final definitions of ``ladder'' are 
essentially the same as the one that all of the ANSI A14 ladder 
standards use: ``Ladder. A device incorporating or employing steps, 
rungs, or cleats on which a person may step to ascend or descend'' 
(see, e.g., ANSI A14.1-2007 (Section 4); ANSI A14.2-2007 (Section 4); 
ANSI A14.3-2008 (Section 3); ANSI A14.5-2007 (Section 4)). The ANSI A14 
ladder standards have been in place for years, and OSHA believes 
employers, workers, and manufacturers clearly understand the term 
``ladder,'' as defined in the ANSI standards, and will not confuse the 
term with stairs. However, to ensure the final rule is understandable, 
the final rule clarifies the definitions of ``rung, step, or cleat'' 
and ``tread'' to specify that a ``step'' is a cross-piece of a ladder 
and ``tread'' refers to the horizontal part of ``stairways (stair).''
    Ladder safety system. In the final rule, a ladder safety system is 
a system designed to eliminate or reduce the possibility of falling 
from a ladder. The final definition explains that a ladder safety 
system usually consists of a carrier; a safety sleeve, which is a 
moving component that travels on the carrier; a lanyard; connectors; 
and a body harness. The final definition also specifies that cages and 
wells are not ladder safety systems.
    The existing rule in Sec.  1910.21(e)(13) uses a similar term, 
``ladder safety device,'' which also excludes ladder cages and wells. 
OSHA's construction ladder standard in Sec.  1926.1053 uses the same 
term, but does not include a definition of the term. The final 
definition is consistent with the ANSI fixed-ladder standard (ANSI 
A14.3-2008; Section 3).
    OSHA received one comment on the definition of ladder safety 
system. Darryl Hill, of the American Society of Safety Engineers 
(ASSE), urged OSHA to prohibit the use of body belts in ladder safety 
systems as the Agency did with personal fall arrest systems:

    ASSE opposes the use of body belts. There are good ``safety 
reasons'' . . . for supporting OSHA's decision in 1998 to ban the 
use of body belts as part of a personal fall arrest system. OSHA 
needs to take this opportunity to ban their use entirely for the 
same reasons it banned them in 1998. A full body harness distributes 
arresting forces over larger areas of the workers body and provides 
better suspension support, as research has repeatedly confirmed (Ex. 
127).

    OSHA agrees with ASSE that full-body harnesses provide better 
suspension support precisely because they distribute arresting/impact 
forces over a larger area of a worker's body than body belts. To that 
end, the final rule in Sec.  1910.140(d)(3) retains OSHA's 1998 
prohibition on the use of body belts as part of a personal fall arrest 
system. OSHA believes this requirement in final Sec.  1910.140 
addresses ASSE's concern and the Agency encourages employers to 
provide, and require that their workers use body harnesses when using 
any type of personal fall protection equipment.
    Low-slope roof. This is a new term that OSHA added to the final 
rule. Low-slope roof is defined as a roof with a slope less than or 
equal to a ratio of 4 in 12. A ratio of 4 in 12 means a vertical rise 
of 4 units (e.g., inches, feet, meters) to every 12 units of horizontal 
run. The final definition is almost identical to the definition of 
``low-slope roof'' found in the construction fall protection standard 
in Sec.  1926.500(b).
    OSHA added this term to final paragraph (b) because the final rule 
includes a new provision on controlling fall hazards on low-slope roofs 
(final Sec.  1910.28(b)(13)), which is consistent with the construction 
fall protection standard in Sec.  1926.501(b)(10). OSHA is aware that 
low-slope roofs also are referred to as ``flat roofs.'' However, even a 
so-called ``flat roof'' has some slope to allow for drainage. As such, 
OSHA believes that the term ``low-slope roof'' more accurately 
represents these roofing configurations.
    Lower level. The final rule, similar to the proposal, defines this 
term as a surface or area to which workers could fall. The final 
definition lists examples of lower levels including, but not limited 
to, ground levels, floors, roofs, ramps, runways, excavations, pits, 
tanks, materials, water, equipment, and similar surfaces and 
structures, or portions thereof. The final rule adds to the proposed 
definition of lower level ``surface'' and ``structures, or portions 
thereof,'' which make the final definition consistent with the 
definition of ``lower level'' in the construction fall protection 
standard in Sec.  1926.500(b). The construction standards for 
scaffolds, and stairways and ladders, also have similar definitions 
(Sec. Sec.  1926.450(b); 1926.1050(b)). OSHA did not receive any 
comments on the proposed definition and adopts it with the changes 
discussed above.
    Manhole steps. The final rule, similar to the proposal, defines 
these as steps that are individually attached to, or set into the walls 
of a manhole structure. Although the steps are individually set into or 
attached to the walls, manhole steps are not considered ``individual-
rung ladders'' as stated in the final definition of ``fixed ladders.'' 
Manhole steps also do not include manhole entry

[[Page 82515]]

ladders which are portable and are covered in final Sec.  1910.23, 
Ladders.
    OSHA did not receive any comments on the proposed definition and 
adopts it with minor editorial changes.
    Maximum intended load. The final rule, similar to the proposal, 
defines this term as the total load (weight and force) of all 
employees, equipment, vehicles, tools, materials, and other loads the 
employer reasonably anticipates to be applied to a walking-working 
surface at any one time. The existing rule in Sec.  1910.21(f)(19) and 
the construction standards for scaffolds, and stairways and ladders in 
Sec. Sec.  1926.450(b) and 1926.1050(b) have similar definitions.
    OSHA clarified the final definition in several ways. First, the 
proposed rule indicated that ``maximum intended load'' was also known 
as ``designed working load.'' OSHA is aware that ``designed working 
load'' is an outdated term; thus, the final definition deletes it. 
Second, the final definition adds language clarifying that the maximum 
intended load includes the combined total weight of the load, as well 
as the force of the load.
    Third, the final definition adds ``vehicles'' to the list of 
potential components of a total load. Vehicles are found on many types 
of walking-working surfaces, and determinations of the maximum intended 
load must include the weight of vehicles, and the load being carried by 
the vehicles, applied to the walking-working surface.
    Fourth, the final definition adds language clarifying that 
employers are responsible for determining the maximum load in terms of 
all equipment, vehicles, materials, workers, and other items they 
reasonably anticipate applying to a walking-working surface. Requiring 
that an employer know the maximum weight and force a walking-working 
surface can support and the total weight and force of the loads they 
reasonably anticipate applying to that surface is essential in 
safeguarding workers from harm, e.g., falls from elevated surfaces and 
being struck by falling objects. OSHA believes the language added to 
the final definition clarifies the employers' responsibility.
    Fifth and finally, the final definition adds the language ``at any 
time'' to make the definition consistent with other OSHA standards 
(e.g., existing Sec. Sec.  1910.21(f)(19); 1926.450(b); 1926.1050(b)).
    OSHA did not receive any comments on the proposed definition and 
adopts it with the revisions discussed above.
    Mobile. The final rule, like the proposed rule, defines ``mobile'' 
as being manually propelled or movable. The existing rule defines 
``mobile'' as manually propelled (existing Sec.  1910.21(g)(12)). The 
proposed and final definitions update the existing rule to make it 
consistent with ANSI A14.7-2011 (Section 3), which specifies that 
``mobile'' also means ``moveable.'' OSHA believes that the final 
definition also clarifies the definitions of ``mobile ladder stand'' 
and ``mobile ladder stand platform.''
    In the proposal, OSHA asked for comment on whether it is necessary 
to define a common term like ``mobile,'' but the Agency did not receive 
any comments. Therefore, OSHA adopts the proposed definition with one 
editorial clarification (replacing ``and/or'' with ``or'').
    Mobile ladder stand. This term (also known as ``ladder stand'') 
means a mobile, fixed-height, self-supporting ladder usually consisting 
of wheels or casters on a rigid base and steps that leads to a top 
step. The final definition explains that a mobile ladder stand also may 
have handrails and is designed for use by one worker at a time. A 
parenthetical in the definition refers to ``ladder stand'' as another 
name for mobile ladder stands; ``ladder stand'' is the term used for 
mobile ladder stands in existing Sec. Sec.  1910.21(g)(9), 1926.450(b), 
and 1926.1050(b), and ANSI A14.7-2011 (Section 3).
    The final definition clarifies the proposed rule and OSHA's 
existing definition for ladder stand in several ways. First, the final 
definition adds language clarifying that mobile ladder stands usually 
consist of wheels or casters on a rigid base, in addition to steps. 
This addition clearly distinguishes ladder stands from other types of 
ladders. Second, the final rule simplifies and clarifies the definition 
by using the term ``steps'' in place of ``treads in the form of 
steps,'' which is in the existing and proposed definitions. The term 
``step,'' which final paragraph (b) also defines, is clear and well 
understood, and does not require further elaboration.
    Third, the final definition deletes the proposed term ``flat'' used 
to describe ladder stand steps because it is not necessary. Final Sec.  
1910.23 establishes requirements for ladder stand steps (final 
Sec. Sec.  1910.23(b)(1) and (b)(4)). OSHA did not receive any comments 
on the proposed definition and adopts it with the clarifications 
discussed above.
    Mobile ladder stand platform. The final rule defines this term as a 
mobile, fixed-height, self-supporting unit having one or more standing 
platforms that are provided with means of access or egress. Existing 
OSHA standards do not include or define the term ``mobile ladder stand 
platforms.'' \11\ Frequently employers use mobile ladder stand 
platforms to provide elevated standing or working surfaces for one or 
more employees.
---------------------------------------------------------------------------

    \11\ OSHA notes that the existing general industry rule includes 
the terms ``platform ladder'' and ``mobile work platform.'' Existing 
Sec.  1910.21(d)(5) defines ``platform ladder'' as a ``self-
supporting ladder of fixed steps with a platform provided at the 
working level.'' Existing Sec.  1910.21(g)(13) defines ``mobile work 
platform'' as ``a fixed work level one frame high on casters or 
wheels, with bracing diagonally from platform to vertical frame.'' 
Both terms include elements of the final definition of ``mobile 
ladder stand platform.'' In the proposed rule, OSHA consolidated and 
simplified existing terms into one term: Mobile ladder stand 
platform.
---------------------------------------------------------------------------

    The final definition is consistent with ANSI A14.7-2011, although 
the ANSI standard, like the proposed rule, includes the definition of 
mobile ladder stand. OSHA did not receive any comments on the proposed 
definition and finalizes the definition with minor clarifications.
    Open riser. The final rule, which is similar to existing Sec.  
1910.21(b)(3) and the proposed rule, defines ``open riser'' as a gap or 
space between treads of stairways that do not have upright (vertical) 
or inclined members (risers).
    OSHA clarified the proposed definition slightly by adding 
terminology to the final definition that it used in the final 
definition of ``riser.'' This terminology specifies that, in addition 
to not having upright (vertical) members, stairways with open risers do 
not have inclined members. This revision makes the final definition 
consistent with ANSI/ASSE A1264.1-2007 (Section 2.11).
    OSHA did not receive any comments on the proposed definition and 
adopts it with the clarifications discussed above.
    Opening. The final rule, similar to the proposed rule, defines this 
term as a gap or open space in a wall, partition, vertical walking-
working surface, or similar surface that is at least 30 inches high and 
at least 18 inches wide, through which a worker can fall to a lower 
level.
    As discussed in the definition of ``hole,'' the final rule 
simplifies and consolidates four terms in the existing rule that 
distinguish between openings and holes in walking-working surfaces. As 
mentioned, the term ``opening'' in the final rule refers to gaps or 
open spaces in areas that are generally vertical, such as walls and 
partitions. The final definition consolidates into one term the 
definitions of ``wall hole'' and ``wall opening'' in existing Sec.  
1910.21(a)(10) and (a)(11). This consolidation makes the final 
definition of ``opening'' consistent with the construction fall 
protection standard

[[Page 82516]]

(Sec.  1926.500(b)), one of OSHA's stated goals of the final rule. OSHA 
believes that having consistent general industry and construction 
definitions will facilitate compliance with the final rule. The final 
definition also is nearly identical to the definition of ``opening'' in 
ANSI/ASSE A10.18-2012 (Section 2.9).
    Consistent with the Plain Writing Act of 2010, the final definition 
substitutes ``open space'' for ``void'' to make the term easier to 
understand.
    OSHA did not receive any comments on the proposed definition and 
adopts the term as discussed above.
    Personal fall arrest system. This is a new term OSHA added to 
subpart D in the final rule and means a system used to arrest a 
worker's fall from a walking-working surface if one occurs. The final 
definition explains that a personal fall arrest system consists of a 
body harness,\12\ anchorage, connector, and a means of connecting the 
body harness and anchorage, such as a lanyard, deceleration device, 
lifeline, or a suitable combination of these. A definition for personal 
fall arrest systems was provided in proposed subpart I in Sec.  
1910.140 (75 FR 29147). Because the term is used in final subpart D, 
and OSHA believes the term is integral to understanding the final rule, 
the Agency decided to include the same definition in subpart D.
---------------------------------------------------------------------------

    \12\ OSHA notes the final rule prohibits the use a body belt as 
part of a personal fall arrest system (final Sec.  1910.140(d)(3)).
---------------------------------------------------------------------------

    The final definition is consistent with OSHA's construction 
standards for scaffolds and fall protection in Sec. Sec.  1926.450(b) 
and 1926.500(b), respectively, and ANSI/ASSE Z359.0-2012 (Section 
2.98). See the preamble to final Sec.  1910.140 for further discussion 
and comments on personal fall arrest systems.
    Personal fall protection system. This is a new term OSHA added to 
subpart D in the final rule and means a system (including all 
components) an employer uses to provide protection from falling or to 
safely arrest a worker's fall if one occurs. The final definition 
identifies examples of personal fall protection systems, including 
personal fall arrest systems, travel restraint systems, and positioning 
systems.
    Personal fall protection systems have the following components in 
common: An anchorage, body support (i.e., body harness or body belt), 
and connectors (i.e., means of connecting the anchorage and body 
support).
    A definition for personal fall protection systems was provided in 
the proposed rule, in proposed Sec.  1910.140 (75 FR 29147). Because 
the term is used in final subpart D, and OSHA believes the term is 
integral to understanding the final rule, the Agency decided to include 
the same definition in subpart D. The requirements for, and comments 
on, personal fall protection systems are in final Sec.  1910.140, 
Personal fall protection systems.
    Platform. In the final rule, like the proposal, a platform is 
defined as a walking-working surface that is elevated above the 
surrounding area. OSHA drew the proposed and final definitions from 
existing Sec.  1910.21(a)(4) and the construction scaffold standard in 
Sec.  1926.450(b). The final rule is consistent with the definition in 
ANSI/ASSE A1264.1-2007.1-2007 (Section 2.14).
    OSHA did not receive any comments on the proposed definition and 
adopts it as proposed with a minor editorial revision.
    Portable ladder. The final rule, like the proposal, defines this 
term as a ladder that can readily be moved or carried, and usually 
consists of side rails joined at intervals by steps, rungs, or cleats. 
The definition in the final rule is consistent with the definition of 
portable ladder in ANSI A14.1-2007 (Section 4), ANSI A14.2-2007 
(Section 4), and ANSI A14.5-2007 (Section 4).
    The final rule clarifies the definition by deleting the language 
``rear braces'' from the proposed definition to eliminate any confusion 
about what constitutes a portable ladder for the purposes of the final 
rule. Rear braces are a structural component of self-supporting 
portable ladders; however, as mentioned above, the final definition of 
portable ladder is not limited to those types of ladders.
    OSHA notes that portable ladders include, but are not limited to, 
self-supporting, non-self-supporting, articulated, sectional, 
extension, special purpose, and orchard ladders. OSHA believes that the 
term portable ladders should be widely understood by employers.
    OSHA received one comment on the proposed definition. Virginia 
Ruiz, representing California Rural Legal Assistance Foundation and 
Farmworker Justice, urged OSHA to cover agriculture operations in the 
final rule (Ex. 201). In her comment, Ms. Ruiz pointed out that 
proposed revisions to the California general industry portable-ladder 
standards (Title 8 CCR, Sections 3276, 3277, 3278, 3287, and 3413) 
cover special-purpose orchard and fruitpickers' ladders (Ex. 201). For 
further discussion on the inclusion of agriculture operations in 
subpart D, see the discussion above in final paragraph (a), Scope.
    Positioning system (work-positioning system). This is a new 
definition OSHA added to subpart D in the final rule. It means a system 
of equipment and connectors that, when used with a body harness or body 
belt, allows an employee to be supported on an elevated vertical 
surface, such as a wall or window sill, and work with both hands free. 
Positioning systems also are called ``positioning system devices'' and 
``work-positioning equipment.''
    The definition is the same as the definition in Sec.  1910.140(b). 
The newly revised electric power generation, transmission, and 
distribution standard in Sec.  1910.269, and the construction standard 
for fall protection in Sec.  1926.500(b), also contain similar terms 
and definitions. The final definition also is consistent with ANSI/ASSE 
Z359.0-2012 (Section 2.120).
    Although the proposed rule for subpart D used the term work-
positioning system, the proposal did not define it. The Agency believes 
it is important to define positioning systems in final subpart D to 
ensure that employers and workers understand the meaning of this term 
as used in this subpart, most importantly that such systems do not 
arrest falls from elevated walking-working surfaces.
    Qualified. In the final rule, like in the proposal, ``qualified'' 
describes a person who, by possession of a recognized degree, 
certificate, or professional standing, or who by extensive knowledge, 
training, and experience has successfully demonstrated the ability to 
solve or resolve problems relating to the subject matter, the work, or 
the project. This definition is the same as the definition in the 
proposed rule and final Sec.  1910.140(b), as well as several 
construction standards (Sec. Sec.  1926.32(m); 1926.450(b)) and ANSI 
A10.32-2012 (Section 2.41).
    The final definition, however, differs from the definition of 
``qualified person'' in the general industry powered platforms standard 
(Sec.  1910.66, Appendix C, Section I(b)) and ANSI/ASSE Z359.0-2012. 
The Sec.  1910.66 definition, for instance, requires that qualified 
persons have a degree or professional certificate, not only 
professional standing, plus extensive knowledge, training, and 
experience. OSHA explained in the proposed rule that to require 
qualified persons to meet the definition in the powered platforms 
standard would mean that the qualified person ``would most likely need 
to be an engineer'' (75 FR 28905).
    Two stakeholders recommended that the Agency adopt the definition 
in

[[Page 82517]]

Sec.  1910.66 (Exs. 155; 206). Mr. Ellis urged OSHA to adopt the Sec.  
1910.66 definition at least as it pertains to certification of 
anchorages. He also said:

    After investing 40 years in industrial fall protection it is 
important to feed back my experiences from hundreds of site visits 
and contacts over that time. I am strongly recommending that the 
word ``or'' be replaced with ``and''. Both are critically important 
and the anchorage must be documented with at least a sketch or 
engineering drawing which presently it rarely is except for 1910.66 
App. C. In America, anchorages are mostly guesswork and this does 
not do justice to ``the personal fall arrest system'' term that OSHA 
is seeking to establish unless the engineering background is added. 
Furthermore the design of anchorages can easily be incorporated into 
architects and engineers drawings but is presently not because there 
is no requirement for an engineer. This simple change may result in 
saving over one half the lives lost from falls in the USA in my 
opinion (Ex. 155).

    Mr. Hoberg, of DBM, Inc., said that defining qualified ``has been a 
struggle for decades'' and that the Sec.  1910.66 definition ``is a 
good one'':

    Two things have become commonly accepted--a competent person is 
one who has enough experience and knowledge to know when to call a 
qualified person. A qualified person is one who knows the technical 
and working practice aspects of the problem.
    The problem we have had was how to limit the `I know, therefore 
I am a qualified person' (Ex. 206).

    The final rule does not adopt the definition of ``qualified 
person'' in Sec.  1910.66 appendix C. The definition of ``qualified'' 
in the final rule has been in use for years in the referenced 
construction standards. OSHA believes the definition is clear and 
employers understand it. In addition, OSHA believes that employers 
understand and can distinguish between qualified and competent persons.
    With regard to the certification of anchorages, OSHA believes that 
the anchorage requirements in final Sec. Sec.  1910.27 and 1910.140, 
combined with the final definition of ``qualified'' person, are 
adequate to ensure worker safety. OSHA notes that building owners are 
free to have their building anchorages certified by professional 
engineers. Therefore, OSHA finalizes the definition of ``qualified'' as 
proposed.
    Ramp. The final rule defines ramp as an inclined walking-working 
surface that is used to gain access to another level. Employers use 
ramps to move workers, equipment, materials, supplies, and vehicles 
from one level to another. Ramps also allow workers to access another 
level when stairs are not available or workers cannot use them (such as 
for workers who use wheelchairs). Ramps generally are permanent devices 
or structures, although some ramps may be portable, such as ramps that 
employers use temporarily for accessing a different level where moving 
equipment or materials up or down stair risers or curbs is impractical.
    The proposed rule, similar to the 1990 proposal, defines ramp as an 
inclined surface between different elevations that is used for the 
passage of employees, vehicles, or both. The final rule revises the 
proposed definition for two reasons. First, the proposed definition 
only refers to the passage of employees and vehicles, but not other 
things that may be moved across ramps, such as materials, supplies, and 
equipment. The final definition does not limit the use of ramps as 
passageways. Second, the final rule simplifies the proposed definition 
to make it consistent with the definition in ANSI/ASSE A1264.1-2007 
(Section 2.16).
    OSHA did not receive any comments on the proposed definition and 
adopts it as discussed above.
    Riser. In the final rule, this term means an upright (vertical) or 
inclined member of a stair located at the back of a stair tread or 
platform that connects close to the front edge of the next higher 
tread, platform, or landing. The final definition is consistent with 
ANSI/ASSE A1264.1-2007 (Section 2.17).
    The final rule differs from the proposed definition in that the 
final definition clarifies that risers may also be inclined (nearly 
vertical), as well as vertical, members of a stair, and connect treads 
to the next higher tread, platform or landing. The height of a riser is 
measured as the vertical distance from the tread (horizontal surface) 
of one step to the top of the leading edge of the tread above it (see 
Figure D-8.). OSHA did not receive any comments on the proposed 
definition and adopts it with the clarification discussed above.
    Rope descent system. In the final rule, a rope descent system (RDS) 
is defined as a suspension system that allows a worker to descend in a 
controlled manner and, as needed, to stop at any time during the 
descent. The final definition adds language to the proposed definition 
explaining that the RDS usually consists of a roof anchorage, support 
rope, a descent device, carabiner(s) or shackle(s), and a chair 
(seatboard). The final definition also states that an RDS may also be 
called controlled descent equipment or apparatus; and does not include 
industrial rope access systems. OSHA based the final definition of 
``rope descent system'' on the definition of the term in ANSI/IWCA I-
14.1-2001, since the existing rule does not include the term.
    OSHA revised the final definition in several ways. First, the ANSI/
ASSE Z359.0-2012 (Sections 2.13 and 2.100) defines both ``automatic 
descent control device'' and ``manual descent control device.'' 
However, neither definition encompasses the entire system. The Agency's 
final definition, like ANSI/IWCA I-14.1-2001, covers the entire system, 
not just the descent control device. In light of the ANSI/ASSE Z359.0-
2012 definitions, OSHA believes that stating, as in the proposal, that 
another name for an RDS is ``controlled descent device'' may be 
confusing. Therefore, OSHA removed that statement in the final 
definition. To further clarify the final definition and distinguish it 
from the terms in ANSI/ASSE Z359.0-2012, OSHA added language 
identifying components of a typical RDS.
    Second, OSHA added language to the final rule specifically 
excluding industrial rope-access systems from the final definition of 
``rope descent system.'' OSHA received several comments recommending 
that the term ``rope descent system'' include industrial rope access 
systems, either as part of rope descent systems or as a new section 
(e.g., Exs. 129; 205; 355-7; 347). One commenter said that rope descent 
systems are a type of industrial rope access system (Ex. 362). However, 
some commenters believe the definition of ``rope descent system'' 
already includes industrial rope access systems (Exs. 69; 72; 122; 168; 
178). For example, the American Wind Energy Association (AWEA) said 
they use industrial rope access systems as rope descent systems for 
repair and maintenance of wind turbines (Ex. 178). AWEA recommended 
that the definition of, and requirements for, rope descent systems 
should incorporate and reference the Society of Professional Rope 
Access Technicians (SPRAT) and the International Rope Access 
Technicians Association standards, which AWEA said ``are much more 
developed'' than the ANSI/IWCA I-14.1-2001 standard.
    In light of the comments, not only does the final definition 
clarify that rope descent systems do not include industrial rope access 
systems, but also final Sec.  1910.27, Scaffolds and rope descent 
systems, explains that the final rule does not cover industrial rope 
access systems. OSHA agrees, as SPRAT pointed out, that while 
industrial rope access systems may use equipment similar to rope 
descent systems (e.g.,

[[Page 82518]]

anchorages, body harnesses, lifelines), they are ``different in key 
ways'' from rope descent systems (Ex. 355-7). For example, industrial 
rope access systems are suspension systems that allow the worker to go 
up or down, while rope descent systems only go down. Also, industrial 
rope access systems have sit harnesses instead of seatboards or chairs.
    Third, OSHA received several comments that opposed OSHA's 
characterization of a rope descent system in the proposal as a 
``variation of the single-point adjustable suspension scaffold'' (Exs. 
62; 168; 205). For example, Brian Gartner, of Weatherguard Service, 
Inc., said, ``A rope descent system is not a variation of the single 
point adjustable scaffold. The scaffold has the capability of being 
raised as well as being lowered, rope descent systems only travel 
downward, and a scaffold has an area, a platform, to store tools and 
supplies, stand, etc.'' (Ex. 168). OSHA agrees with the commenters and 
deleted that comparison from the final definition.
    Rung, step, or cleat. Similar to the proposal, the final rule 
defines ``rung, step, or cleat'' as the cross-piece of a ladder on 
which a worker steps to climb up and down the ladder. OSHA notes that 
in the final definition, ``steps'' only refer to the cross-pieces of 
ladders. The final definition is consistent with ANSI A14.1-2007 
(Section 4), ANSI A14.2-2007 (Section 4), and ANSI A14.5-2007 (Section 
4).
    The final definition consolidates and simplifies the existing 
definitions into one term that identifies their common characteristics 
and purpose (see existing Sec.  1910.21(e)(8), (9), and (10)). The 
final definition also incorporates plain language (``climb up and 
down'') to explain that workers use rungs, steps, or cleats to ascend 
or descend ladders.
    OSHA received one comment on the proposed definition. Nigel Ellis 
said OSHA should retain the separate definitions in the existing rule 
``to explain a rung is designed for holding and stepping but that a 
step cannot be held since it is only for the feet (shoes)'' (Ex. 155). 
OSHA does not agree that including such language is necessary.
    First, the final definition is consistent with ANSI portable ladder 
standards (ANSI A14.1-2007, ANSI A14.2-2007, and ANSI A14.5-2007). 
Rungs, steps, and cleats are all horizontal surfaces for climbing 
ladders, even if their specifications vary. (Rungs are circular or 
oval, cleats are rectangular, and steps are flat). Instead of focusing 
on the differences in the specification, the final rule and the ANSI 
standards identify, and focus on, the primary purpose of rungs, steps, 
and cleats; to provide a place to step to climb up and down the ladder.
    Second, OSHA believes it is not accurate to say that ``a step 
cannot be held'' (Ex. 155). Although side rails provide handholds for 
climbing ladders, especially those with steps, neither the final rule 
nor the ANSI standards prohibit workers for holding onto steps, either 
while climbing or standing on a ladder. As such, OSHA believes the 
language Mr. Ellis suggests may cause confusion; therefore, OSHA is not 
adopting it.
    Runway. In the final rule, similar to the proposal, this term means 
an elevated walking-working surface, such as a catwalk, a foot walk 
along shafting, or an elevated walkway between buildings. The final 
definition is consistent with ANSI/ASSE A1264.1-2007 (Section 2.19).
    OSHA added three clarifications to the final ``runway'' definition. 
First, the final definition substitutes ``walking-working surface'' for 
``passageway.'' This change makes the definition consistent with the 
definitions of other terms in final subpart D. Second, the final 
definition also more clearly indicates that employees use runways to 
perform work as well as to gain access to other areas in the workplace. 
Third, the final rule simplifies the definition by substituting plain 
language (i.e., ``elevated'') in place of ``elevated above the 
surrounding floor or ground level'' used in the proposed definition.
    OSHA did not receive any comments on the proposed definition and 
adopts it with the clarifications discussed above.
    Scaffold. In the final rule, like the proposal and consistent with 
the construction scaffold standard (Sec.  1926.450(b)), this term means 
any temporary elevated or suspended platform and its supporting 
structure, including anchorage points, used to support workers, 
equipment, materials, and other items. The final rule also states that, 
for purposes of final subpart D, ``scaffold'' does not include crane-
suspended or derrick-suspended personnel platforms or rope descent 
systems.
    The final rule consolidates into a single term the two definitions 
in the existing rule in Sec.  1910.21(f)(27) and (g)(15). The final 
definition also adds two clarifications to the proposed definition. 
First, it adds ``equipment'' to the list of items a scaffold must be 
capable of supporting. Second, it also clarifies that the final 
definition of scaffold, including suspension scaffolds, does not 
include rope descent systems. As discussed above, a number of 
commenters opposed characterizing rope descent systems as a type of 
single-point adjustable scaffold (Ex. 62; 168; 205). One commenter, 
David Hoberg, with DBM Consultants, said rope descent systems differ in 
many ways from scaffolds. For instance, he said the stabilization 
required for rope descent systems over a height of 130 feet differs 
from the stabilization required for scaffolds (Ex. 206). Consequently, 
OSHA added to the definition of scaffold that the term does not apply 
to rope descent systems.
    Ship stair (ship ladder). In the final rule, like the proposal, a 
ship stair, also known as a ship ladder, is a stairway that is equipped 
with treads, stair rails, and open risers, and has a slope that is 
between 50 and 70 degrees from the horizontal. The final definition is 
consistent with ANSI/ASSE A1264.1-2007 (Section 2.22).
    Ship stairs are not standard stairs within the meaning of this 
section. Generally, ship stairs are a type of stairway found in 
buildings and structures that have limited space, and are used for 
accessing special use areas, such as but not limited to, attics, roofs, 
mechanical equipment spaces, etc.
    OSHA notes that ship stair is a term of art and use of the term in 
this subpart is not intended to infer applicability to the shipyard 
employment, marine terminal, or longshoring industries.
    OSHA did not receive any comments on this definition and adopts it 
with minor editorial revisions for clarity.
    Side-step ladder. This term means a type of fixed ladder that 
requires a worker to step sideways from it to reach a walking-working 
surface, such as a landing. The final definition is consistent with 
ANSI A14.3-2008 (Section 3). In the final rule, OSHA revised the 
proposed definition to emphasize that side-step ladders are a type of 
fixed ladder (see final Sec.  1910.23(d)(4), (d)(6), and (d)(12)(ii)). 
The final rule also clarifies that when a worker steps off a side-step 
ladder onto a walking-working surface, it may be a landing or another 
type of surface (e.g., roof). The proposed definition, on the other 
hand, only mentions stepping onto a landing.
    OSHA did not receive any comments on the proposed definition and 
finalizes with the clarifications discussed above.
    Spiral stairs. The final rule, similar to the proposal, defines 
this term as a series of treads attached to a vertical pole in a 
winding fashion that is usually within a cylindrical space. For 
clarity, the Agency substituted the language ``stairway having a 
helical (spiral) structure attached to a supporting pole'' in the 
proposal with ``treads attached to

[[Page 82519]]

a vertical pole in a winding fashion within a cylindrical space.'' OSHA 
drew the definition from the construction standards for stairways and 
ladders (see Sec.  1926.1050(b)); it also is consistent with the 
definition of the term in ANSI/ASSE A1264.1-2007 (Section 2.23).
    Additionally, in the final rule, OSHA replaced the proposed term 
``steps'' with ``treads.'' As noted above in the definition for rungs, 
steps or cleats, in the final rule, OSHA clarifies that steps are a 
component of ladders whereas treads are components of stairs.
    Spiral stairs are not standard stairs within the meaning of this 
section, and the final rule limits their use in general industry 
workplaces (see final Sec.  1910.25(b)(8)). Employers generally use 
spiral stairs generally in workplaces that have limited space.
    OSHA did not receive any comments on the proposed definition and 
adopts it as discussed above.
    Stair rail or stair rail system. This term means a barrier erected 
along the exposed or open side of stairways to prevent workers from 
falling to a lower level. Stair rail and stair rail systems include, 
but are not limited to, vertical, horizontal, or inclined rails; 
grillwork or panels, and mesh. In addition, the top rail of a stair 
rail system may serve as a handrail. The final definition is consistent 
with the construction standards for stairways and ladders (see Sec.  
1926.1050(b)). The ANSI/ASSE A1264.1-2007 (Section 2.6) standard 
includes a definition covering ``guardrail/railing system/stair railing 
system'' that is applicable to stairways, ramps, landings, portable 
ladders, hatchway, manholes, and floor openings; the final definition 
is generally consistent with this ANSI/ASSE standard.
    The final definition eliminates ``vertical'' from the term barriers 
in order to make the definition consistent with final Sec.  1910.29(f). 
That provision does not require barriers to be vertical; for example, 
barriers may be horizontal rails.
    OSHA did not receive any comments on the proposed definitions and 
adopts it with the revision discussed.
    Stairway (stairs). The final rule defines stairway (stairs) as 
risers and treads that connect one level with another. Stairways also 
include any landings and platforms between those levels. In addition, 
the final rule specifies that stairway includes standard, spiral, ship, 
and alternating tread-type stairs.
    The existing rule defines stairways as a series of steps leading 
from one level or floor to another, or leading to platforms, pits, 
boiler rooms, crossovers, or around machinery tanks and other equipment 
that are used more or less continuously or routinely by employees, or 
only occasionally by specific individuals. A series of steps and 
landings having three or more risers constitutes stairs or stairway 
(existing Sec.  1910.21(b)(8)). OSHA did not propose a definition of 
stairway; however, the Agency decided to retain and revise the existing 
definition.
    The final definition revises the existing definition in several 
ways. First, the final rule simplifies the definition considerably. 
OSHA believes the term ``stairway'' (``stairs'') is commonly understood 
and does not require a long explanation. Therefore, OSHA limits the 
final definition to identifying the specific aspects of the stairways 
the final rule covers.
    Second, the final rule removes language in the existing definition 
that limits stairways to stairs that have ``three or more risers'' 
(existing Sec.  1910.28(b)(8)). The proposed rule did not retain the 
existing definition of stairway, which limited covered stairs to those 
that have three or more risers. Including a definition in the final 
rule clarifies the Agency's intent to cover stairways that have fewer 
risers.
    OSHA adopted the existing definition from national consensus 
standards in effect in 1971 and those standards have been revised and 
updated. In particular, the current versions of ANSI/ASSE A1264.1-2007 
(Section E6.1) and IBC-2012 (Section 202) specify that a stair has one 
or more risers. The revision makes the final rule consist with those 
national consensus standards, which OSHA believes that most employers 
already follow.
    Finally, OSHA adds language to the final definition explaining that 
stairways include standard, spiral, alternating tread-type, and ship 
stairs (ship ladders). The existing rule did not include that language.
    OSHA did not receive any comments about a definition for ``stairway 
(stairs)'' and adopts the definition as discussed.
    Standard stairs. The final rule, like the proposal, defines 
standard stairs as stairways that are fixed or permanently installed. 
In the preamble to the proposed rule OSHA explained that ``permanently 
installed'' standard stairs are interchangeable with the term ``fixed'' 
standard stairs. To further clarify the definition, OSHA added this 
concept.
    Existing OSHA standards do not define ``standard stairs.'' The 
ANSI/ASSE A1264.1-2007 (Section 6) standard uses the terms ``fixed 
stairs'' and ``conventional stair designs,'' but does not define either 
term.
    Although ship stairs, spiral stairs, and alternating tread-type 
stairs are fixed or permanently installed stairs, the final definition 
specifies that they are not considered standard stairs under this 
subpart.
    OSHA did not receive any comments on the proposed definition and 
finalizes it as discussed above.
    Step bolt (pole step). This term means a bolt or rung attached at 
intervals along a structural member and used for foot placement and as 
a handhold when climbing or standing. The final definition, like the 
proposal, also refers to step bolts as ``pole steps.'' Existing subpart 
D does not specifically define or address step bolts.
    OSHA did not receive any comments on the proposed definition and 
adopts it as discussed.
    Stepladder. This term means a self-supporting, portable ladder that 
has a fixed height, flat steps, and a hinged back. The final definition 
consolidates into one term the two existing definitions in existing 
Sec.  1910.21(c)(2) and (d)(2). The final definition also simplifies 
the proposed definition by incorporating plain language (fixed height) 
in place of ``non-adjustable in length.''
    OSHA did not receive any comments on the proposed definition and 
adopts it with the clarification discussed above.
    Stepstool. This term means a self-supporting, portable ladder that 
has flat steps and side rails. Similar to the proposed definition, the 
final rule defines the term ``stepstool'' to include only those ladders 
that have a fixed height, do not have a pail shelf, and do not exceed 
32 inches in overall height to the top cap, although the side rails may 
extend above the top cap. The definition goes on to clarify that a 
stepstool is designed so an employee can climb and stand on all of the 
steps as well as the top cap. OSHA drew the definition from the 
construction stairways and ladders standard (Sec.  1926.1050(b)), ANSI 
A14.2-2007 (Section 4), and ANSI A14.5-2007 (Section 4), which are 
similar. The final definition simplifies the proposed term by 
incorporating plain language ``fixed height'' in place of ``non-
adjustable in length,'' and reorganizing the definition to make it 
easier to understand.
    OSHA did not receive any comments on the proposed definition and 
finalizes it with the revisions discussed above.
    Through ladder. The final rule, similar to the proposed rule, 
defines a through ladder as a type of fixed ladder that allows workers 
to step through the side rails at the top of the ladder to reach a 
walking-working surface, such as a landing. The final definition is

[[Page 82520]]

consistent with the construction standards for stairways and ladders 
(see Sec.  1926.1050(b)) and ANSI A14.3-2008 (Section 3).
    The final definition clarifies the existing rule in Sec.  
1910.21(e)(15) and the proposed rule by stating that, at the top of a 
through ladder, a worker steps off the ladder onto a ``walking-working 
surface,'' which may be a landing or another type of surface (e.g., 
roof); the existing and proposed rules specify stepping onto a landing 
only.
    OSHA did not receive any comments on the proposed definition and 
adopts it with the clarification discussed above.
    Tieback. Similar to the proposed definition, this term means an 
attachment between an anchorage (e.g., structural member) and a 
supporting device. The final definition adds language to the proposed 
definition clarifying that supporting devices include, but are not 
limited to, parapet clamps or cornice hooks.
    According to the International Safety Equipment Association (ISEA), 
manufacturers provide a number of choices for tieback applications, 
such as tieback lines or lanyards, and tieback anchors (Ex. 185). ISEA 
said manufacturers design tieback lanyards for wrapping around a 
suitable anchor structure (e.g., a beam or structural member), and have 
the advantage of eliminating a separate component for anchorage 
connection. ISEA explained that employers typically use tieback 
lanyards in personal fall arrest systems (Ex. 185).
    ANSI/IWCA I-14.1-2001 (Sections 5.7.17, 17.4, and 17.6) notes that 
the exclusive use of tieback anchors is with tieback lines, not 
lifelines. The final rule requires that tieback lines and lifelines 
have separate anchors.
    Existing OSHA standards do not define ``tieback.'' OSHA drew the 
definition from ANSI A10.8-2011, American National Standard for 
Construction and Demolition Operations--Safety Requirements for 
Scaffolding. OSHA believes that adding a definition for ``tieback'' 
clarifies the use of the term elsewhere in this subpart. Mr. Hoberg, of 
DBM Consultants, stated clarification is necessary because various 
parts of the country use the term differently, and that ``each area 
swears adamantly that theirs is the right one and keeps trying to 
change the other'' (Ex. 206).
    The definition is finalized with the clarifying revisions noted 
above.
    Toeboard. The final rule, similar to the proposal, defines this 
term as a low protective barrier that is designed to prevent materials, 
tools, and equipment from falling to a lower level, and protect workers 
from falling. Typically, employers erect toeboards on platforms, 
dockboards, catwalks, gridirons, and other elevated or exposed floor 
level edges. Toeboards, also are referred to as toeplates or 
kickplates, and may be part of a guardrail system.
    The final rule consolidates into one term the three definitions in 
the existing rule in Sec.  1910.21(a)(9), (f)(31), and (g)(16), all of 
which are consistent with the final definition. The final rule 
clarifies that toeboards prevent tools, as well as materials and other 
equipment, from falling on workers who may be below the elevated 
walking-working surface.
    Finally, and most importantly, OSHA clarifies expressly that 
toeboards serve two purposes: Preventing materials, tools, and 
equipment from falling on and injuring workers on a lower level; and 
protecting workers from falling off elevated walking-working surfaces. 
The final definition is consistent with OSHA's construction standard 
for fall protection in Sec.  1926.500(b) and ANSI/ASSE A10.18-2012 
(Section 2.18).
    OSHA did not receive any comments on the proposed definition and 
adopts it with the clarifications discussed above.
    Travel restraint system. This definition is new in the final rule. 
This system is a combination of an anchorage, an anchorage connector, 
lanyard (or other means of connection), and body support that an 
employer uses to eliminate the possibility of a worker going over the 
edge of a walking-working surface.
    OSHA drew the definition from final Sec.  1910.140(b). The 
definition also is consistent with the definition in ANSI/ASSE Z359.0-
2012 (Section 2.204), and the definition of the term ``restraint 
(tether) system'' in ANSI/ASSE A10.32-2012 (Sections 2.53).
    OSHA did not receive any comments on the proposed definition in 
Sec.  1910.140 and, therefore, adopts a definition as described above 
for final subpart D. For further discussion about the definition of 
``travel restraint system,'' see the preamble discussion for final 
Sec.  1910.140.
    Tread. The final rule, similar to the proposal rule, defines this 
term as a horizontal member of a stair or stairway, but does not 
include landings or platforms. OSHA added clarifying language in the 
final rule, that landings and platforms, which are horizontal members 
of stairways, are not considered treads.
    The final definition revises the existing and proposed rules by 
using ``stairways or stair'' in place of ``step.'' This revision 
clarifies that treads describe horizontal members of stairways. In the 
existing and proposed rules, treads and steps refer to horizontal 
members of both ladders and stairways, which OSHA believes may cause 
confusion. By limiting the term ``tread'' to stairways or stairs, and 
the term ``step'' to ladders, the final rule should resolve any 
potential confusion.
    Treads are measured by their width (side to side) and depth (front 
to back). OSHA notes that tread depth is measured horizontally between 
the vertical planes of the foremost projection of adjacent treads, and 
at a right angle to the tread's leading edge. This method of 
measurement is consistent with the NFPA 101-2012 (Section 7.2.2.3.5) 
and the IBC-2012 (Section 1009.7.2).
    The final definition is consistent with ANSI/ASSE A1264.1-2007.1 
(Section 2.26). OSHA did not receive any comments on the proposed 
definition and adopts it as discussed.
    Unprotected sides and edges. This term means any side or edge of a 
walking-working surface, (except at entrances and other points of 
access) where there is no wall, guardrail system, or stair rail system 
to protect workers from falling to a lower level. The final definition, 
which replaces the language ``open-sided floors, platforms, and 
runways'' in the existing rule in Sec.  1910.23(c)(1), is consistent 
with the definition of the term in OSHA construction standards (see 
Sec. Sec.  1926.500(b) and 1926.1050(b)).
    The final rule revises the proposed definition in two respects. 
First, it states that a walking-working surface is unprotected if it 
does not have a stair rail system, in addition to not having a wall or 
guardrail system as specified in the proposed definition, to protect 
workers from falling.
    Second, OSHA deleted the height-specification language in the 
proposed rule. This language is not necessary because final Sec.  
1910.29, Fall protection systems and falling object protection--
criteria and practices, already addresses these height requirements.
    OSHA did not receive any comments on the proposed definition and 
finalizes it with the revisions discussed above.
    Walking-working surface. The final rule, similar to the proposal, 
defines this term as a horizontal or vertical surface on or through 
which workers walk, work, or gain access to work areas or workplace 
locations. Walking-working surfaces include floors, stairways, roofs, 
ladders, runways, ramps, walkways, dockboards, aisles, platforms, 
manhole steps, step bolts, equipment, trailers, and other surfaces. The 
existing rule does not define ``walking-working

[[Page 82521]]

surfaces,'' but the final definition is similar to the definition for 
``walking-working surface'' in the construction standard for fall 
protection in Sec.  1926.500(b), ANSI/ASSE A10.18-2012 (Section 2.20), 
and ANSI/ASSE A1264.1-2007 (Section 2.28). OSHA notes that, unlike the 
construction standard for fall protection, the final definition does 
not exclude ``ladders, vehicles, or trailers, on which employees must 
be located in order to perform their job duties.''
    The final rule makes two revisions to the proposed walking-working 
surface definition. First, the final definition adds ``work area'' as a 
location to which a worker may gain access. This revision means that 
walking-working surfaces include those areas where employees perform 
their job duties, as well as other locations in the workplace, such as 
hallways and supply and change rooms. OSHA notes that, for some work 
and occupations, including equipment service and repair, delivery of 
materials and supplies, and landscaping, the ``work area'' may be at 
various locations. OSHA believes that adding ``work area'' to the final 
definition makes it clear what the term covers. The revision also makes 
the final definition consistent with ANSI/ASSE A1264.1-2007 (Section 
2.28).
    Second, also consistent with ANSI/ASSE A1264.1-2007, the final rule 
deletes the list of examples of walking-working surfaces from the 
proposal. Accordingly, the regulated community is to broadly construe 
the final definition of ``walking-working surface'' to cover any 
surface on or through which employees walk, work, or gain access to a 
work area or workplace location. Since the final definition does not 
exclude any walking-working surface, OSHA does not believe that 
identifying a partial list of surfaces the final rule covers is 
helpful, necessary, or definitive.
    OSHA received several comments addressing the scope of the 
definition of ``walking-working surface,'' which it discusses above in 
the preamble to Sec.  1910.21(a), Scope.
    Warning line. This is a new definition OSHA added to the final 
rule. The term describes a barrier that is erected on a roof to warn 
workers they are approaching an unprotected side or edge, and which 
designates an area in which work may take place without using other 
means of fall protection. The warning line is a component of a 
designated area, which is an alternative method for preventing falls 
that the final rule allows employers to use to protect workers on low-
slope roofs (see final Sec. Sec.  1910.28(b)(13) and 1910.29(d)). A 
warning line alerts workers that the space marked off by the line is an 
area where they may work without conventional or additional fall 
protection (e.g., guardrail, safety net, or personal fall protection 
system).
    Workers may enter the demarcated area only if the employer provides 
them with the required fall hazard training (see final Sec.  1910.30) 
and assigns them to work in the demarcated area. In large part, OSHA 
drew the definition in the final rule from the definition of ``warning 
line system'' in the construction standard for fall protection (see 
Sec.  1926.500(b)).
    Although the proposed rule used the term ``warning line,'' the 
proposal did not define it. The final rule corrects this oversight. The 
Agency believes it is important to define the term so that employers 
and workers understand the new fall prevention method, and so employers 
may comply with the new warning line requirements.
    OSHA did not receive any comments and adopts the definition as 
discussed above.
    Well. Similar to existing Sec.  1910.21(e)(12) and the proposed 
rule, this term means a permanent, complete enclosure around a fixed 
ladder. A well surrounding a fixed ladder must provide sufficient 
clearance to enable the employee to climb the ladder. The terms 
``well'' and ``cage'' typically are used together because the 
structures serve the same purpose, i.e., to enclose the climbing area 
of a fixed ladder. In the event of a fall, wells and cages contain 
workers within the enclosure and direct them to a lower landing (Ex. 
198). ANSI A14.3-2008 (Section 3) also contains a similar definition.
    The final rule deletes proposed language stating that ``proper 
clearances for a well provide the person climbing the ladder the same 
protection as a cage'' to prevent employers and workers from mistakenly 
believing that wells and cages provide fall protection. Information in 
the record indicates that wells and cages do not protect workers from 
falling (see, e.g., Ex. 198); as a result, the final rule in Sec.  
1910.28(b)(9) phases out their use as fall protection systems.
    OSHA did not receive any comments on the proposed definition and 
adopts the term with the revision discussed above.
    Other issues. Two commenters suggested that OSHA include additional 
definitions in the final rule. First, Nigel Ellis recommended that OSHA 
add a definition for the term ``cover'' to the final rule, stating:

    The word Cover is not presently defined as to adequacy and 
walkability in the May 2010 standard proposal. A cover may be a 
plywood board or perhaps OSB or temporarily and more dangerously a 
section of drywall to keep out dust and weakens when wet. The new to 
America Platform Nets should be accommodated for maintenance work to 
allow walkable fabric covers to be used for walking across holes and 
open spaces.
* * * * *
    The term cover should be defined on a structural level 
applicable to any unit skylight, including plastic, light 
transmitting pane and smoke vent and where it is either a board, 
fabric, fall protection net, walkable net, skylight with structural 
members impervious to the effects of UV sunlight, screen, grill and 
should be tested for impacts with humans (Ex. 155).

    OSHA believes employers understand the meaning of cover; therefore, 
it is not necessary to add a definition to the final rule.
    Second, Mercer ORC requested that OSHA define the term ``chain 
gate'' and identify how it differs from the term ``swinging gate'' (Ex. 
254). The reference to chain gate in proposed Sec.  1910.29(b)(10) was 
a typographical error that inadvertently omitted the comma between 
chain and gate. Given that, there is no need to add a definition for 
either chain gate or swinging gate.
Section 1910.22--General Requirements
    Final Sec.  1910.22 revises and updates the existing requirements 
that apply to surfaces in general industry. These provisions address:
     Surface conditions and housekeeping (paragraph (a));
     Application of loads on walking-working surfaces 
(paragraph (b));
     Access to and egress from walking-working surfaces 
(paragraph (c)); and
     Inspection, maintenance, and repair of walking-working 
surfaces (paragraph (d)).
    In general, the final rule revises the existing requirements in 
several ways. First, final Sec.  1910.22, as well as all other sections 
of final subpart D, uses the term ``walking-working surface.'' Final 
Sec.  1910.21(b) defines walking-working surface as any horizontal or 
vertical surface on or through which an employee walks, works, or gains 
access to a workplace location. Walking-working surfaces include, but 
are not limited to, floors, stairways, roofs, ladders, runways, 
walkways, dockboards, aisles, and step bolts.
    In final Sec.  1910.22, as in other sections of final subpart D, 
OSHA revised the existing language so it is performance-based and 
easier to understand, consistent with the OSH Act (29 U.S.C. 
655(b)(5)), and the Plain Language Act of 2010 (Pub. L. 111-274; see 
also E.O. 13568 (1/18/2011)), respectively. OSHA

[[Page 82522]]

believes the revised language provides greater flexibility for 
employers, and makes it easier for them to comply with the final rule.
    OSHA also moved or deleted provisions in existing Sec.  1910.22 
that address specific issues or hazards rather than general conditions. 
For example, OSHA moved the existing guardrail and covers requirements 
(existing Sec.  1910.22(c)) to final Sec. Sec.  1910.28 (Duty to have 
fall protection), and 1910.29 (Fall protection systems criteria and 
practices). OSHA believes that the existing provision, which addresses 
two specific types of fall protection measures, is more appropriately 
grouped with the other fall protection measures. In addition, OSHA 
deleted the requirements on mechanical-handling equipment in existing 
paragraph (b) because Sec.  1910.176(a) addresses that issue.
Paragraph (a)--Walking-Working Surfaces
    Final paragraph (a), like the existing and proposed rules, contains 
general requirements on housekeeping and walking-working surface 
conditions. Pursuant to section 6(a) of the OSH Act (29 U.S.C. 655(a)), 
OSHA adopted most of the requirements in existing paragraph (a) from 
the ANSI standard in effect in the early 1970s (ANSI Z4.1-1968, 
Requirement for Sanitation in Places of Employment (Z4.1-1968)). 
Although ANSI updated the Z4.1 standard several times since 1968 (see 
ANSI Z4.1-1986 (R2005) (Z4.1-R2005)), OSHA did not update the 
requirements until this rulemaking.
    Final paragraph (a)(1), consistent with the existing and proposed 
rules, requires that employers ensure surfaces are kept in a clean, 
orderly, and sanitary condition in ``[a]ll places of employment, 
passageways, storerooms, service rooms, and walking-working surfaces.'' 
Final paragraph (a)(1) also is consistent with Z4.1-R2005 (Section 
3.1.1). OSHA adds the term ``walking-working surfaces'' to the 
provision to eliminate any confusion about the surfaces the final rule 
is intended to cover.
    In the preamble to the proposed rule, OSHA explained its 
longstanding position that Sec.  1910.22(a), especially Sec.  
1910.22(a)(1), covers hazards other than slips, trips, and falls, and 
includes fire and explosion resulting from combustible dust 
accumulations (see 75 FR 28874). Prior court decisions uphold OSHA's 
interpretation, saying ``the housekeeping [Sec.  1910.22(a)] standard 
is not limited to tripping and falling hazards, but may be applied to 
significant accumulation of combustible dust'' (Con Agra, Inc. v. 
Occupational Safety and Health Review Commission, 672 F.2d 699, 702 
(8th Cir. 1982), citing Bunge Corp. v. Secretary of Labor, 638 F.2d 
831, 834 (5th Cir. 1981)). In Pratt & Whitney Aircraft (9 O.S.H. Cas. 
(BNA) 1653, 1981 O.S.H.D. (CCH) P 25359, 1981 WL 18894 (O.S.H.R.C.), 
the Occupational Safety and Health Review Commission (Review 
Commission) reached the same conclusion on a converse set of facts. 
Pratt & Whitney argued that Sec.  1910.22(a)(1) only covered 
``sanitation and the prevention of disease,'' not trip hazards. The 
Review Commission rejected that argument, saying the standard's 
requirement that employers keep places of employment ``in a sanitary 
condition'' is ``in addition to the requirement that workplaces be 
`clean and orderly,' thus demonstrating that the standard is directed 
not merely to sanitation but to all hazards arising from poor 
housekeeping, including tripping hazards.'' (See also, Farmer's Co-op, 
1982 WL 2222661 (O.S.H.R.C.); CTA Acoustics (KY 2003), CSB Report No. 
2003-09-I-KY (February 2005); Hayes Lemmerz International (Indiana 
2003), CSB Report No. 2004-01-I-IN (September 2005).)
    As these cases show, Sec.  1910.22(a)(1) serves as an important 
enforcement tool for preventing hazardous combustible dust 
accumulations on walking-working surfaces. Moreover, in essentially 
every document addressing combustible dust that OSHA released since 
Bunge, the Agency affirmed that its combustible dust enforcement 
strategy includes citing housekeeping violations (i.e., failure to 
control combustible dust accumulations) under Sec.  1910.22(a)(1). (See 
e.g., ``Combustible Dust in Industry: Preventing and Mitigating the 
Effects of Fire and Explosion,'' OSHA Safety and Health Information 
Bulletin (SHIB) 07-31-2005, (2005, July 31) \13\; ``Hazard Alert: 
Combustible Dust Explosions,'' OSHA Fact Sheet (March 2008) \14\; OSHA 
Compliance Directive CPL-03-00-008, ``Combustible Dust National 
Emphasis Program,'' (March 11, 2008) (replacing CPL 03-00-006, 
``Combustible Dust National Emphasis Program,'' October 18, 2007) \15\; 
and ``Status Report on Combustible Dust National Emphasis Program,'' 
(October 2009)).\16\
---------------------------------------------------------------------------

    \13\ Combustible Dust in Industry: Preventing and Mitigating the 
Effects of Fire and Explosion available from OSHA's Web site at: 
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.
---------------------------------------------------------------------------

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

    Final paragraph (c)(12), like proposed paragraph (c)(13), requires 
that employers not use ladders and ladder sections tied or fastened 
together to provide added length unless the ladder design specifically 
permits such use. The purpose of the final paragraph is to prevent the 
use of unsafe rigging methods and to use ladders only as they were 
intended. Ladders gerry-rigged to provide longer lengths are not likely 
to be as strong and stable as ladders designed to reach such heights.
    Limiting fastening together ladders and ladder sections to those 
``specifically designed for such use'' means that the designer 
developed both the ladders and any mechanism used to connect them 
specifically to achieve greater length. The final rule revises existing 
Sec.  1910.26(c)(3)(v), which specifies that the manufacturer must 
equip the ladders and ladder sections with necessary hardware fittings, 
if the manufacturer endorses allowing such ladder extensions, to ensure 
that the requirement covers both manufactured and job-made ladders and 
ladder sections. Therefore, under the final rule the ladder designer, 
regardless of whether employed by the employer, a manufacturer, or 
other company, must develop the ladder or ladder section specifically 
for the purpose of fastening them together to extend the length of the 
ladder or the employer must not fasten the ladder or ladder sections 
together. Final paragraph (c)(12) is consistent with existing Sec.  
1910.25(d)(2)(ix), A14.1-2007 (Section 8.3.11), and A14.2-2007 (Section 
8.3.11).
    Final paragraph (c)(13) retains the language in existing Sec.  
1910.25(d)(2)(v), which prohibits placing ladders on boxes, barrels, or 
other unstable bases to obtain additional height. The proposed rule 
(proposed paragraph (c)(14)) prohibited employers from increasing the 
reach of ladders and ladder sections by any means not permitted 
specifically by the design of the ladders. After further analysis, OSHA 
believes the language in the existing rule is clearer and easier to 
understand than the proposed language. The language also is the same as 
A14.1-2007 (Section 8.3.4) and A14.2-2007 (Section 8.3.4).
    For the purposes of final paragraph (c)(13), unstable bases include 
surfaces such as vehicles, truck flatbeds, scaffolds, and stairs. OSHA 
received one comment on the proposed provision. Southern Company (Ex. 
192) asked whether paragraph (c)(13) prohibited the use of ladder-
leveling devices that extend the reach of the ladder. Final paragraph 
(c)(12) addresses fastening together ladders and ladders sections. 
However, OSHA does not consider ladder-leveling devices to be ladders 
or ladder sections. Rather they are devices attached to ladder side 
rails and allow for independent adjustment of the rails to ensure the 
ladder is level. Like the A14 standards, OSHA considers ladder-leveling 
devices to be ``ladder accessories . . . that may be installed on or 
used in conjunction with ladders'' (A14.1-2007, Section 1.1; and A14.2-
2007, Section 1.1). Although ladder-leveling devices may be temporary 
or permanent attachments to the ladder, OSHA does not consider ladder-
leveling devices to be ``part of the ladder itself'' (75 FR 28877). 
Therefore, final paragraph (c)(13) does not apply to ladder-leveling 
devices, even if they increase the length of the ladder.
    That said, other provisions in Sec. Sec.  1910.22 and 1910.23 
(e.g., final paragraphs (b)(8) and (c)(4)) are applicable when 
employers use ladder-leveling devices. For example, paragraph (b)(8) 
mandates that employers use ladders only for their intended purpose. 
OSHA believes that employers are using ladders for their intended 
purpose only when the design of the accessories attached to, or used in 
conjunction with, the ladders permit such use. OSHA notes that there 
are many after-market ladder devices that employers may attach to, or 
use in conjunction with, ladders. Many of these devices, including 
ladder-leveling devices, can help to make ladders safer for workers to 
use. OSHA is not prohibiting the use of ladder accessories that can 
make ladders safer for workers to use. However, after-market add-ons 
must meet the standard's requirements. That is, when in use, the 
additional device must not reduce the ladder's strength or stability, 
and employers must use them only for their designed purpose. Although 
allowed, OSHA cautions employers against using job-made devices unless 
a professional engineer designed and certified them. OSHA notes that 
the Agency does not approve or endorse specific products.
Paragraph (d)--Fixed Ladders
    Final paragraph (d) establishes requirements that apply to fixed 
ladders, in addition to the requirements in final paragraph (b). The 
final rule defines ``fixed ladder'' as a ladder, with side rails or 
individual rungs, that is permanently attached to a structure, building 
or equipment (Sec.  1910.21(b)). Fixed ladders do not include ship 
stairs, stepbolts, or manhole steps.
    Final paragraph (d)(1), like the proposed rule, establishes a

[[Page 82541]]

performance-based provision requiring that employers ensure any fixed 
ladder a worker uses is capable of supporting the maximum intended 
load. As discussed in Sec.  1910.22, and above in this section, 
``maximum intended load'' means ``the total load (weight and force) of 
all employees, equipment, vehicles, tools, materials, and loads the 
employer reasonably anticipates to be applied to a walking-working 
surface'' (Sec.  1910.21(b)).
    The performance-based language in final (d)(1) replaces the 
detailed specification requirements in the existing rules (Sec.  
1910.27(a)(1)(i) through (iv) and (a)(2)). OSHA requested comment on 
whether the Agency should retain the specification requirements in 
existing Sec.  1910.27(a)(1), but did not receive any comments.
    OSHA did not adopt proposed paragraph (d)(2) as a companion to 
proposed paragraph (d)(1). Proposed paragraph (d)(2) required that 
employers ensure fixed ladders installed on or after 150 days after 
issuing the final rule meet specific design, construction, and 
maintenance requirements, including supporting two 250-pound live 
loads. The existing rule requires that fixed ladders support a single 
concentrated 200-pound load (Sec.  1910.27(a)(1)). After additional 
analysis, OSHA decided to adopt proposed paragraph (d)(1), and not 
retain existing Sec.  1910.27(a) or adopt proposed paragraph (d)(2). 
First, OSHA believes the maximum load requirement in final paragraph 
(d)(1) is as safe as, or more protective than, the existing and 
proposed rules. Final paragraph (d)(1) requires that employers ensure 
that a fixed ladder meets the maximum load that the designer 
specifically established for that particular fixed ladder. OSHA 
believes that following the load requirement established for a 
particular ladder is at least as safe as a general specification (200 
or 250 pounds) applied to all fixed ladders.
    Second, OSHA believes the performance-based approach in final 
paragraph (d)(1) is easier to understand and follow than the minimum 
weight specifications in the existing and proposed rules. In addition, 
the final rule gives employers greater flexibility in selecting and 
using fixed ladders. OSHA notes that Ameren (Ex. 189), among other 
commenters, supported the use of performance-based language for this 
and other provisions in the final rule.
    Third and finally, not adopting the proposed rule, which had an 
effective date 150 days after publication of the final rule, addresses 
commenters' concerns that that OSHA failed to give adequate lead-in 
time to come into compliance with the new requirement (Exs. 189; 192).
    Final paragraph (d)(2), like proposed paragraph (d)(3), requires 
that employers ensure the minimum perpendicular distance from the 
ladder to the nearest permanent object in back of the ladder is 7 
inches. The final rule requires that this distance be measured from the 
centerline of the fixed ladder steps and rungs or grab bars, or both, 
to the object in back of the ladder (e.g. wall). OSHA believes the 7-
inch minimum will ensure that workers have adequate space to get a safe 
foothold on fixed ladders. Final paragraph (d)(2) also includes an 
exception for elevator pit ladders. For these ladders, the employer 
must ensure that the minimum perpendicular distance is 4.5 inches.
    Final paragraph (d)(2), like the proposal, revises the existing 
rule (Sec.  1910.27(c)(4) and (5)) in several ways. First, the final 
rule replaces the existing 4-inch minimum perpendicular distance for 
grab bars with a 7-inch minimum clearance. To ensure worker safety 
while they climb fixed ladders and transition to upper landing 
surfaces, OSHA believes that the minimum perpendicular distance for 
grab bars needs to be the same as the minimum perpendicular distance 
specified for ladder rungs and steps.
    Second, final paragraph (d)(2) eliminates an exception from the 7-
inch clearance requirement for ``unavoidable obstructions'' (Sec.  
1910.27). OSHA stated in the preamble to the final construction ladder 
standard that ``the minimum clearance requirement is necessary, 
regardless of any obstructions, so that employees can get safe 
footholds on ladders'' (55 FR 47675).
    Third, final paragraph (d)(2) adds a new exception that reduces the 
minimum perpendicular clearance in elevator pits to 4.5 inches. OSHA 
drew this exception from the construction ladder standard (Sec.  
1926.1053(a)(13)). The exception is consistent with the ANSI/ASME 
A17.1-2010, Safety Code for Elevators and Escalators (Section 
2.2.4.2.4) (Ex. 380). Generally, space in elevator pits is restricted, 
and it may not be possible to have a 7-inch clearance. In the preamble 
to the construction ladder standard, OSHA said the exception for 
elevator pit ladders was appropriate because elevator shafts generally 
are secure from unauthorized access (55 FR 47675). As such, only 
workers who have the required equipment and fall protection training 
would be accessing the elevator pit (55 FR 47675). Under the final 
rule, employers must train each worker in the proper use of equipment, 
including fixed ladders, before permitting any worker to use the 
equipment (Sec.  1910.30(b)(1)).
    One of OSHA's goals in revising the existing rule (Sec.  
1910.27(c)(4)) was to make the final rule consistent with OSHA's 
construction ladder standard, and final paragraph (d)(2) is almost the 
same as that rule (Sec.  1926.1053(a)(13)). The construction standard 
also contains language specifically indicating that the required 7-inch 
clearance also applies to obstructions. In addition, the final rule is 
consistent with the 7-inch minimum perpendicular distance in existing 
Sec.  1910.27(c)(4) and A14.3-2008 (Section 5.4.2.1).
    OSHA received one comment from Southern Company (Ex. 192). They 
asked to grandfather in the existing requirement because they have many 
fixed ladders and ``[r]edesigning or moving any of these ladders to 
avoid these obstructions could be expensive or in some cases 
infeasible.'' OSHA does not believe that grandfathering is necessary. 
The Agency believes the vast majority of fixed ladders currently in use 
comply with the final requirement because the final rule reflects 
requirements in place under ANSI A14.3 since 1974. In addition, OSHA's 
construction standard has required the same clearance since the Agency 
adopted it in 1994.
    Final paragraphs (d)(3) through (8) establish requirements for 
ladder extension areas to ensure that workers are able to transition 
safely from the fixed ladder to the landing surface. In particular, 
several of the provisions apply to through and side-step ladders. The 
A14.3-2008 standard defines through ladders as rail ladders that 
require a worker getting off to step through the ladder to reach the 
landing (A14.3-2008, Section 3). That standard also defines side-step 
ladders as rail ladders that require workers getting off at the top to 
step sideways from the ladder to reach the landing (A14.3-2008, Section 
3).
    Final paragraph (d)(3), like the existing (Sec.  1910.27(c)(5)) and 
proposed rules, requires that employers ensure grab bars on the 
climbing side do not protrude beyond the rungs of the ladder they 
serve. The final rule defines grab bars as individual vertical or 
horizontal handholds that provide access above the ladder height (Sec.  
1910.21(b)). Grab bars that protrude beyond the rungs of the ladder can 
be hazardous because they make it more difficult to climb and 
transition to landing surfaces. To illustrate, having the grab bars 
protrude further than the ladder would put the worker at an angle 
greater than 90 degrees and make climbing and holding

[[Page 82542]]

on more difficult, which makes a fall more likely. OSHA did not receive 
any comments on the proposed provision.
    Final paragraph (d)(4), like the proposed rule, establishes 
requirements for through and side-step ladders, including those ladders 
used on buildings with parapets. The final rule requires that employers 
ensure the side rails of through or side-step ladders extend 42 inches 
above the top of the access level or platform served by the ladder.
    Final paragraph (d)(4) also adds language specifying what 
constitutes the ``access level'' for through and side-step ladders on 
buildings that have parapets. When a parapet has an opening that 
permits passage through it (i.e., through ladder), the final rule 
specifies that the access level is the roof (final paragraph 
(d)(4)(i)). For parapets without such an opening (i.e., side-step 
ladders), the final rule specifies the access level is the top of the 
parapet (final paragraph (d)(4)(ii)). OSHA added this language to 
clarify the Agency's intent that workers must have sufficient handholds 
at least 42 inches above the highest level on which they will step when 
reaching the access level, regardless of the location of the access 
level (i.e., roof or top of parapet). The language also makes the final 
rule consistent with Sec.  1926.1053(a)(24) and A14.3-2008 (Section 
5.3.2.1). OSHA did not receive any comments on the proposed provision.
    Final paragraph (d)(5), like the existing (Sec.  1910.27(d)(3)) and 
proposed rules, specifies that employers ensure that there are no steps 
or rungs on the portion of the through ladder extending above the 
access level. It is obvious that this requirement is necessary to allow 
workers to pass the ladder and step onto the upper landing surface. The 
final rule is the same as OSHA's construction ladder standard (Sec.  
1926.1053(a)(25)) and A14.3-2008 (Section 5.3.2.2).
    In addition, final paragraph (d)(5), like the proposed rule, also 
requires flared extensions of the side rails above the access level to 
provide clearance of not less than 24 inches and not more than 30 
inches. The final rule increases the existing clearance width (from 18 
to 24 inches) between the side rails. OSHA believes the additional 
clearance will help to ensure that workers equipped with personal fall 
protection systems, tools, and other items have adequate space to 
negotiate the pass-through area and reach the upper landing safely. The 
increased clearance width makes the final rule consistent with OSHA's 
construction standard (Sec.  1926.1053(a)(25)) and A14.3-2008 (Section 
5.3.2.2).
    Final paragraph (d)(5) adds a new clearance width requirement for 
through ladders equipped with ladder safety systems. In those cases, 
the final rule requires that employers ensure the clearance between 
side rails of the extensions does not exceed 36 inches. The new 
provision makes the final rule consistent with OSHA's construction 
ladder standard (Sec.  1926.1053(a)(25)). OSHA did not receive any 
comments on the proposed provision.
    Final paragraph (d)(6), like the proposed rule, adopts a 
performance-based revision of the existing rule for side-step ladders 
(Sec.  1910.27(d)(3)). Accordingly, the final rule requires that 
employers ensure the side rails, rungs, and steps of side-step ladders 
be continuous in the extension. The existing rule, by contrast, 
specifies that the landings of side-step or off-set fixed ladder 
sections have side rails and rungs that extend to the next regular rung 
above or beyond the 42-inch minimum extension. OSHA believes the 
performance-based revision makes the final rule easier to understand 
and follow. The final rule is consistent with OSHA's construction 
standard (Sec.  1926.1053(a)(24)) and A14.3-2008 (Section 5.3.2.3).
    Final paragraphs (d)(7) and (8) specify criteria for grab bars. 
Final paragraph (d)(7), like the proposed rule, requires that employers 
ensure grab bars extend 42 inches above the access level or landing 
platforms of the ladder, which is the same height required for side 
rails in the extension area of through and side-step ladders (see final 
paragraph (d)(4)). Final paragraph (d)(7) revises and clarifies the 
existing rule (Sec.  1910.27(d)(4)), which states that grab bars ``be 
spaced by a continuation of the rung spacing when they are located in 
the horizontal position,'' and have the same spacing as ladder side 
rails when located in the vertical position. The final rule identifies, 
more clearly and exactly, the required location (i.e., above the access 
level or platform) and height (i.e., 42 inches) of the grab bars. OSHA 
believes that employers will find the final rule easier to understand 
and follow.
    OSHA drew the language in final paragraph (d)(7), in part, from its 
construction ladder standard (Sec.  1926.1053(a)(27)) and A14.3-2008 
(Sections 5.3.3.1 and 5.3.3.2). The final rule expands application to 
grab bars on all fixed ladders; OSHA's construction ladder standard and 
A14.3-2008 only apply to individual-rung ladders. Also, the final rule 
does not include the exception in OSHA's construction standard and 
A14.3-2008 for manhole steps, covers, and hatches because manhole steps 
are not considered ladders in this rule and are covered in a separate 
section (final Sec.  1910.24). OSHA did not receive any comments on the 
proposed provision.
    Final paragraph (d)(8), like the existing (Sec.  1910.27(d)(4)) and 
proposed rules, requires that employers ensure the minimum size (i.e., 
cross-section or diameter) of the grab bars are the same size as the 
rungs on that ladder. The final rule clarifies the existing rule by 
specifying that the grab bars and rungs of fixed ladders be the same 
size (diameter). The final rule is consistent with A14.3-2008 (Section 
5.3.3.3).
    OSHA received one comment about grab bars. Nigel Ellis, Ellis 
Safety Solutions, LLC (Ex. 155), recommended that the final rule 
require horizontal grab bars, especially if the length of vertical grab 
bar exceeds 6 inches. He pointed to a study (Young et al., ``Hand-hold 
Coupling: Effect of Handle Shape, Orientation, and Friction on 
Breakaway Strength,'' 51 Human Factors 705, October 2009) showing that 
breakaway strength (i.e., the maximum force that can be exerted on an 
object before it pulls away or slips from the grasp of the hand) was 
greatest for fixed horizontal cylindrical-shaped bars (Ex. 344). Based 
on that study, Mr. Ellis said that it would be more likely that workers 
could arrest a fall by grabbing a horizontal, rather than a vertical, 
grab bar. He also said, ``It has been shown that vertical grab bars are 
a sliding element that prevents an adequate grip to stop a fall,'' and 
concluded that ``if a vertical grab bar exceeds 6 inches vertically 
then the hand-sliding fall is unstoppable'' (Ex. 344).
    OSHA agrees that horizontal bars provide the possibility of 
stronger grips than vertical ones in the event of a fall from a ladder 
when a ladder safety system or a personal fall protection system is not 
taken into account. However, horizontal grab bars do not provide the 
level of protection from falls that ladder safety systems and personal 
fall protection systems provide. Given that ladder safety systems and 
personal fall protection systems will increasingly protect workers who 
climb ladders from falling, OSHA does not believe is it necessary at 
this point to require installation of horizontal grab bars when any 
vertical grab bar exceeds 6 inches.
    Final paragraph (d)(9), like the proposed rule, establishes two 
requirements for ladders that terminate at hatch covers. First, the 
final rule requires that employers ensure that the hatch cover opens 
with sufficient clearance to provide easy access to or from the ladder 
(see final paragraph (d)(9)(i)). Second, the final rule requires

[[Page 82543]]

that employers ensure counterbalanced hatch covers open at least 70 
degrees from the horizontal (see final paragraph (d)(9)(ii)). In 
essence, this provision defines in objective terms (70 degrees) what 
constitutes ``sufficient clearance,'' as used in the existing rule 
(Sec.  1910.27(c)(7)).
    Final paragraph (d)(9), like the proposal, revises the existing 
rule in two ways. First, the final rule increases to 70 degrees the 
angle to which counterbalanced hatch covers must open. The existing 
rule only requires that hatch covers open a minimum of 60 degrees, but 
also specifies that the minimum distance from the centerline of the top 
rung be at least 24 inches for ladders with ``offset wells,'' and at 
least 30 inches for ``straight wells.'' OSHA believes that increasing 
the opening to 70 degrees will ensure that the space between the top 
rung and hatch provides adequate clearance regardless of what type of 
fixed ladder is used.
    Second, the final rule replaces the specification requirement in 
the existing rule with performance-based language. The performance-
based language ensures that the final rule provides a level of worker 
safety that is as great as or greater than the existing rule, but gives 
employers the flexibility to determine how counterbalanced hatch covers 
will open to 70 degrees. The performance-based language also makes 
final paragraph (d)(9) clearer and easier to follow than the existing 
rule. The final rule is consistent with A14.3-2008 (Section 5.3.4.2). 
OSHA notes that A14.3-2008 also includes language similar to the 
specification language in the existing rule, but the language is only 
advisory. OSHA did not receive any comments on the proposed provision.
    Final paragraph (d)(10), like the existing (Sec.  1910.27(b)(1)(v)) 
and proposed rules, requires that employers ensure that the 
construction of individual-rung ladders will prevent the worker's feet 
from sliding off the ends of the rungs (Figure D-4 in regulatory text 
illustrates). OSHA believes this requirement is essential because 
individual-rung ladders do not have side rails to block the worker's 
feet from sliding off the rung. Final paragraph (d)(10) is the same as 
OSHA's construction industry standard (Sec.  1926.1053(a)(5)). OSHA did 
not receive any comments on the proposed provision.
    Final paragraph (d)(11), like the proposed rule, requires that 
employers ensure workers do not use fixed ladders that have a pitch 
greater than 90 degrees from the horizontal. A ladder that exceeds a 
pitch of 90 degrees makes the ladder dangerous to climb because pitch 
greater than 90 degrees would require climbers to exert considerable 
extra force to maintain their grip on the ladder against the 
gravitational force. The final rule revised the specification approach 
in the existing requirements (Sec.  1910.27(e)(1) through (4)), and 
replaces it with performance-based language. OSHA believes much of the 
language in the existing rule continues to provide useful information 
best included in compliance-assistance documents. OSHA did not receive 
any comments on the proposed paragraph.
    Final paragraph (d)(12), like the proposed rule, addresses step-
across distances for through and side-step ladders. Specifically, final 
paragraph (d)(12)(i) requires that employers ensure the step-across 
distance for through ladders is not less than 7 inches, and not more 
than 12 inches, to the nearest edge of the structure, building, or 
equipment accessed from the ladders, measured from the centerline of 
the ladder. Final paragraph (d)(12)(ii) requires that employers ensure 
the step-across for side-step ladders is at least 15 inches, but not 
more than 20 inches, measured from the centerline of the ladder to the 
nearest point of access on the platform edge.
    The final rule, like the proposal, revises the existing rule in 
Sec.  1910.27(c)(6) in several ways. First, the final rule establishes 
specific step-across distances for each through and side-step ladder 
(Sec.  1910.27(c)(6)). The existing rule establishes a single step-
across distance applicable to all fixed ladders. Compared to the 
existing rule, OSHA believes the final rule more appropriately tailors 
the step-across distances to the type of ladder used, which improves 
worker safety.
    Second, final paragraph (d)(12) revises the existing step-across 
distance (i.e., not less than 2.5 inches and not more than 12 inches) 
to make transitioning from the ladder to the upper landing surface 
safer and consistent with other provisions in the final rule. OSHA 
believes that a 2.5-inch step-across distance could conflict with the 
7-inch minimum perpendicular clearance requirement in final paragraph 
(d)(2). The 7-inch clearance requirement is necessary to ensure that 
workers will have a safe foothold on the ladder. If the existing rule 
inadvertently results in workers having an inadequate foothold on the 
top of the ladder, it could increase the worker's chance of falling.
    Third, the final rule does not retain the companion provision in 
the existing rule (Sec.  1910.27(d)(1)) that requires employers to 
provide a landing platform if the step-across distance is greater than 
12 inches. OSHA believes that the final rule already addresses this 
issue; therefore, it is not necessary to retain the requirement.
    Final paragraph (d)(12) requires that employers measure step-across 
distance from the centerline of the ladder to the ``nearest edge of the 
structure, building, or equipment.'' Thus, in the final rule, the 
nearest edge of a structure may be a landing platform. Final paragraph 
(d)(12) is consistent with OSHA's construction ladder standard (Sec.  
1926.1053(a)(16)) and A14.3-2008 (Section 5.4.2.2). OSHA did not 
receive any comments on the proposed provision.
    Final paragraph (d)(13) addresses fixed ladders that do not have 
cages or wells. Final paragraph (d)(13)(i), like the existing (Sec.  
1910.27(c)(2)) and proposed rules, requires that employers ensure 
ladders without cages or wells have a clear width of at least 15 inches 
on each side of the ladder centerline to the nearest object. Having at 
least a 15-inch minimum clearance on the ladder is necessary to provide 
adequate clearance to climb the ladder and prevent damage to the 
ladder. Figure D-2 illustrates this requirement, which is consistent 
with OSHA's construction ladder standard (Sec.  1926.1053(a)(17)) and 
A14.3-2008 (Section 5.4.3.1).
    Final paragraph (d)(13)(ii), like the proposed rule, requires that 
employers ensure there is a minimum perpendicular distance of 30 inches 
from the centerline of the steps or rungs to the nearest object on the 
climbing side of the ladder. The final rule, like the proposal, revises 
the existing requirement in Sec.  1910.27(c)(1) in three ways. First, 
the final rule replaces the existing requirement that the pitch of the 
ladder be the basis of the minimum perpendicular distance (i.e., 36 
inches for 75-degree pitch ladder and 30 inches for 90-degree pitch 
ladders) with a single, minimum clearance, regardless of the ladder 
pitch. OSHA believes that the revised rule will not pose problems for 
employers because the pitch of virtually all fixed ladders is 90 
degrees. As such, the final rule is consistent with the existing rule. 
The revision in the minimum perpendicular clearance makes the final 
rule consistent with OSHA's construction ladder standard (Sec.  
1926.1053(a)(14)) and A14.3-2008 (Section 5.4.1.1).
    Second, the final rule provides an exception to the minimum 
perpendicular clearance requirement ``[w]hen unavoidable obstructions 
are encountered.'' The final rule allows a reduction of the minimum 
clearance to 24 inches in those cases, provided that

[[Page 82544]]

employers install deflector plates. The deflectors will protect workers 
on fixed ladders by guiding them around unavoidable obstructions. 
Adding this exception makes the final rule consistent with OSHA's 
construction ladder standard (Sec.  1926.1053(a)(15)) and A14.3-2008 
(Section 5.4.1.3).
    Third, final paragraph (d)(13) recasts the existing rule so it is 
more performance-based. OSHA believes this change makes the final rule 
easier to understand and follow than the existing rule.
    OSHA received one comment on the proposed provision. Ameren 
Corporation stated:

    As long as the fixed ladders in any facility comply with the 
current ``inches clearance per pitch'' requirements, they should be 
grandfathered in due to the potential financial impact and minimum 
difference in clearance as well as any history of no apparent 
difficulties with head clearance by way of reviewing incident 
reporting trends (Ex. 189).

    OSHA does not agree with Ameren that the revisions to the minimum 
perpendicular clearance on the climbing side of fixed ladders will have 
any significant financial impact on employers who are in compliance 
with the existing rule. As mentioned earlier, almost all fixed ladders 
have a 90-degree pitch, which means that they must already meet the 30-
inch clearance requirement of the existing rule. Therefore, the vast 
majority of employers would not have to replace their ladders since 
they are in compliance with the existing provision.
    Final paragraph (d) includes an informational note stating that 
Sec. Sec.  1910.28 and 1910.29 establish, respectively, the duty to 
provide fall protection for workers using fixed ladders and the 
mandatory criteria for that fall protection.
Paragraph (e)--Mobile Ladder Stands and Mobile Ladder Stand Platforms
    Final paragraph (e) establishes requirements that apply to mobile 
ladder stands and mobile ladder stand platforms (mobile ladder stands 
and platforms). These requirements apply to mobile ladder stands and 
platforms in addition to the requirements specified by paragraph (b) of 
this section that cover all ladders.
    Final paragraph (e) is a performance-based revision of the design 
and use requirements in the existing rule (Sec.  1910.29(a) and (f)), 
and consistent with the design requirements in the ANSI standard 
(A14.7-2011). Therefore, consistent with the requirement in the OSH Act 
that OSHA express standards ``in terms of objective criteria and of the 
performance desired,'' final paragraph (e) does not incorporate the 
testing requirements in either the existing OSHA rule or ANSI standard 
(e.g., Sec.  1910.29(f)(5); A14.7-2011 (Section 5)).
    For purposes of the final rule, final Sec.  1910.21(b) defines a 
``mobile ladder stand'' as a ladder that:
     Is mobile;
     Has a fixed height;
     Is self-supporting; and
     Is designed for use by one worker at a time.
    This paragraph of the final rule also specifies that mobile ladder 
stands generally consist of:
     Wheels or casters on a rigid base;
     Steps (treads); and
     A top step.
    Mobile ladder stands also may have handrails. This definition is 
consistent with both the existing OSHA rule and ANSI standard (Sec.  
1910.21(g); A14.7-2011, Section 3). Although the final rule does not 
identify what constitutes a ``top step,'' the ANSI standard defines the 
term ``top step'' as ``[t]he uppermost flat surface of a ladder stand 
upon which a person may stand and that has a front to back dimension of 
not less than 9.5 inches or more than 32 inches and does not exceed 6.7 
square feet in area'' (A14.7-2011, Section 3).
    A ``mobile ladder stand platform,'' as defined in the final rule 
(Sec.  1910.21(b)), is a mobile ladder stand with treads leading to one 
or more platforms. Unlike the definition of mobile ladder stands, some 
mobile ladder stand platforms may be designed for use by more than one 
worker at a time.
    Although the existing OSHA ladder rules for general industry do not 
define or specifically address mobile ladder stand platforms, the final 
definition is consistent with the ANSI standard (A14.7-2011, Section 
3). The ANSI standard also defines a ``platform'' as ``[a]n elevated 
surface for standing or working that is more than 6.7 square feet in 
area, or more than 32 inches in depth and may be occupied by more than 
one person'' (A14.7-2011, Section 3).
    While the existing OSHA rule does not specifically address mobile 
ladder stand platforms, many of the provisions in the existing rule 
provide effective worker protection regardless of whether employees are 
working on mobile ladder stands or mobile ladder stand platforms. Thus, 
when appropriate, in the final rule OSHA applied provisions in the 
existing rules to mobile ladder stand platforms as well as mobile 
ladder stands.
    One commenter raised general concerns about the design requirements 
for mobile ladder stands and platforms:

    Nearly all requirements are design and construction requirements 
over which an employer would have minimal or no control.
    Again, an employer would be relying primarily on third party 
certification without any assurance that such reliance would be 
recognized as a legitimate defense against OSHA citations (Ex. 368).

    The commenter is correct that most of the general provisions in 
proposed and final paragraph (e)(1) are equipment-design requirements. 
This also applies to the existing OSHA rules, which have been in place 
since 1973. Many other OSHA standards also require that employers 
provide equipment designed, constructed, and maintained so it is safe 
for their workers to use. In the years since OSHA adopted the existing 
rules, no employers have raised concerns about being able to comply 
with the design requirements. OSHA also believes that today, more than 
40 years after it adopted the existing rules, virtually all mobile 
ladder stands and platforms manufactured meet the design requirements 
of the existing rules, as well as the ANSI standard.
    OSHA, however, does not agree that employers have minimal or no 
control over whether mobile ladder stands and platforms meet the design 
requirements in the final rule. Employers are free to design and 
construct their own equipment to the design requirements in OSHA 
standards, and some employers do. For example, employers may build 
their own mobile ladder stands and platforms if they need the units for 
special purposes, or if the ladders must fit into unusual locations.
    Employers also have control over the equipment they purchase. They 
can evaluate, investigate, and even test potential equipment to ensure 
that it meets OSHA requirements. They also can select equipment that a 
recognized third party (e.g., Underwriters Laboratories) tests and 
certifies as meeting the OSHA requirements. In addition, employers can 
obtain the third-party testing information or reports to reassure 
themselves that the equipment meets the requirements in the final rule.
    Final paragraph (e)(1) establishes general design and use 
requirements that apply to both mobile ladder stands and mobile ladder 
stand platforms. OSHA drew these general requirements from two sources: 
(1) The existing rule (Sec.  1910.29); and (2) A14.7-2011.
    Final paragraph (e)(1)(i), like the existing (Sec.  
1910.29(a)(3)(ii)) and proposed rules, requires that employers ensure 
that the minimum width of steps on mobile ladder stands and platforms 
is 16 inches. This minimum-width requirement applies regardless of the

[[Page 82545]]

length (depth) of the top step of mobile ladder stands, which, pursuant 
to A14.7-2011, may be up to 32 inches in depth or 6.7 square feet in 
area. OSHA believes that this approach is generally consistent with the 
ANSI standard, which requires that steps, including the top step, on 
mobile ladder stands have a minimum width of 16 inches (A14.7-2011, 
Section 4.3.1); for mobile ladder stand platforms, section 4.4.1 of A-
14.7-2011 requires a minimum step width of 16 inches.
    OSHA believes that employers should not have any problem complying 
with final paragraph (e)(1)(i). The existing OSHA and ANSI standards 
have been in place for many years and OSHA believes the width of steps 
on virtually all mobile ladder stands and platforms meet the ANSI 
requirements, and, therefore, are in compliance with the final rule. 
OSHA did not receive any comments on the proposal, and adopts the 
provision as discussed.
    Final paragraph (e)(1)(ii), like the existing (Sec.  
1910.29(a)(3)(iv)) and proposed rules, requires that employers ensure 
that steps and platforms of mobile ladder stands and platforms be slip 
resistant. The final rule includes language, drawn from A14.7-2011, 
that gives employers greater flexibility in complying with the slip-
resistance requirement. Final paragraph (e)(1)(ii) provides that 
employers may meet the slip-resistance requirement by providing mobile 
ladder stands and platforms where the slip-resistant surfaces either 
are (1) an integral part of the design and construction of the mobile 
ladder stand and platform, or (2) provided by a secondary process or 
operation. For the purposes of this final rule, secondary processes 
include things such as dimpling, knurling, shotblasting, coating, 
spraying the walking-working surfaces, or adding durable slip-resistant 
tape to steps and platforms.
    In addition to providing more flexibility than the existing OSHA 
requirements for meeting the slip-resistance requirement, OSHA believes 
the final paragraph will help to ensure a level of protection that is 
equivalent to or greater than the existing requirements. First, it 
allows employers to select the types of slip resistance that will 
provide the most effective protection for workers in the particular 
workplace conditions in which employers use the unit. For example, in 
outdoor, icy conditions, grated steps and platforms may provide better 
slip resistance than steps and platforms with a sprayed-on finish.
    Second, the new language also indicates that employers have both an 
initial and continuing obligation to ensure that steps and platforms on 
mobile ladder stands and platforms remain slip resistant (i.e., ``[t]he 
steps . . . are slip resistant''). Accordingly, while the manufacturer 
may apply the secondary slip resistance process initially, if the slip 
resistance on steps of stands or platforms wears down or is in need of 
repair, the final rule requires that employers treat those surfaces 
with additional processes to restore their slip resistance. For 
example, if slip-resistant tape comes off, the employer must replace 
it. OSHA believes that employers should not have problems complying 
with the final provision since slip-resistance processes and materials 
are readily available in the marketplace. OSHA did not receive any 
comments on the proposed provision, and adopts it as proposed.
    Final paragraphs (e)(1)(iii) and (iv) establish strength and 
stability requirements for mobile ladder stands and platforms to ensure 
units are safe for workers to use. Final paragraph (e)(1)(iii), which 
is almost identical to proposed paragraph (e)(1)(vi), requires that 
employers ensure mobile ladder stands and platforms are capable of 
supporting at least four times their maximum intended load. The 
existing OSHA rule and ANSI standard also require that mobile ladder 
stands be capable of supporting at least four times the ``design 
working load'' or ``rated load,'' respectively (Sec.  
1910.29(a)(2)(ii)(b); A14.7-2011, Section 4.2.1). Both standards have 
been in place for many years, so OSHA believes that virtually all 
mobile ladder stands and platforms manufactured and currently in use 
already comply with the final rule.
    Final paragraph (e)(1)(iv), which also is almost identical to 
proposed paragraph (e)(1)(iii), requires that employers ensure wheels 
and casters of mobile ladder stands and platforms under load are 
capable of supporting: (1) their proportional share of four times the 
maximum intended load, plus (2) their proportional share of the unit's 
weight. OSHA believes this requirement is necessary to ensure that 
mobile ladder stands and platforms are safe for workers to use. Unless 
the wheels and casters can support both the proportional weight of the 
mobile ladder stand or platform and the weight of the maximum intended 
load placed on that unit, failure of the wheel(s) or caster(s) may 
occur. If that happens, the stand or platform could become unstable and 
the worker could fall off the unit and be injured or killed.
    Final paragraph (e)(1)(iv) provides greater protection than the 
existing OSHA rule in Sec.  1910.29(a)(4). The existing rule does not 
require that wheels or casters be capable of supporting the weight of 
the mobile ladder stand or mobile ladder stand platform, as well as the 
weight of the load (e.g., worker, tools, equipment, and materials) 
placed on it (Sec.  1910.29(a)(4)(i)). However, OSHA notes that the 
final rule is almost identical to the ANSI standard (A14.7-2011, 
Sections 4.3.7 and 4.4.8). As discussed above, the ANSI standard has 
been in place for many years, so OSHA believes that virtually all 
mobile ladder stand and platform wheels and casters manufactured and 
currently in use already comply with the final rule.
    In final paragraphs (e)(1)(iii) and (iv), OSHA replaced the term 
``design working load'' in the existing OSHA rule with ``maximum 
intended load'' (i.e., the total load of all employees, equipment, 
tools, materials, and other loads the employer reasonably anticipates 
to be applied to the mobile ladder stand or platform). While the 
definition of ``maximum intended load'' in this final rule (see Sec.  
1910.21(b)) is similar to the definition of ``design working load'' in 
the existing rule (see Sec.  1910.21(g)(5)), using the term ``maximum 
intended load'' in final paragraphs (e)(1)(iii) and (iv) makes these 
paragraphs consistent with other provisions in the final rule that use 
the term.
    Finally, consistent with OSHA's goal to make the final rule 
performance based, final paragraphs (e)(1)(iii) and (iv) do not 
incorporate the testing requirements in either the existing OSHA rule 
(Sec.  1910.29(f)(5)) or A14.7-2011 (Section 5). OSHA did not receive 
any comments on either of the proposed requirements, and adopts final 
paragraphs (e)(1)(iii) and (iv) as discussed above.
    Final paragraph (e)(1)(v) establishes general requirements for 
handrails on mobile ladder stand and platform steps (except for 
handrails on top steps when paragraph (e)(2)(ii) applies). Final 
paragraph (e)(1)(v) requires that employers ensure mobile ladder stands 
and platforms have handrails when the height of the top step or 
platform is 4 feet or higher above lower levels. Where handrails are 
required, employers must ensure that the handrails have a vertical 
height of at least 29.5 inches but not more than 37 inches, as measured 
from the front edge of the step, unless specified elsewhere in the 
section.
    The purpose of the final paragraph (e)(1)(v) is to protect workers 
from falling when they are climbing or standing on mobile ladder stands 
and platforms. OSHA believes handrails are necessary to assist workers 
as they are

[[Page 82546]]

climbing mobile ladder stands and platforms, and also provide a 
handhold they can grab to steady themselves if they slip or start to 
fall off the unit. In addition, handrails provide a necessary barrier 
to prevent workers from falling off the side of steps and off the top 
step or platform. To ensure that the barrier provides adequate 
protection, OSHA notes that stands and platforms must have handrails on 
both sides of the steps, including the top step and platform. On mobile 
ladder stands, the handrail also must extend across the open back of 
the top step.
    The existing OSHA rule requires that mobile ladder stand steps have 
handrails (a minimum of 29 inches high, measured vertically from the 
center of the step) if the height of the top step was more than 5 feet 
or 5 steps (Sec.  1910.29(f)(4)). However, the existing rule does not 
specify the maximum height allowed for the handrails. In addition, the 
existing rule does not contain a specific provision covering handrails 
on mobile ladder stand platforms. The proposed rule, on the other hand, 
included specific and separate handrails provisions for mobile ladder 
stands and mobile ladder stand platforms (proposed paragraphs 
(e)(2)(ii) and (e)(3)(ii)). In the final rule, OSHA consolidated those 
proposed provisions into the general requirement in paragraph (e)(1)(v) 
to reduce repetition and simplify the final rule.
    The final rule provides greater protection than the existing OSHA 
rule. The final rule requires that mobile ladder stands and platforms 
have handrails where the top step height is at least 4 feet compared to 
more than 5 feet or 5 steps in the existing rule. OSHA notes that the 
ANSI standard (A14.7-2011, Sections 4.3.5 and 4.4.5) also requires that 
handrails provide the same level of protection as the final rule.
    Final paragraph (e)(1)(v), like the proposal (a note to proposed 
paragraphs (e)(2)(ii) and (e)(3)(ii)), also allows alternatives to the 
handrails requirement for ``special-use applications.'' In such 
situations, the final rule permits employers to use removable gates or 
non-rigid members (such as chains) instead of handrails on the top step 
of mobile ladder stands and platforms. The alternative means of 
compliance allows employers to remove the gates or chains when a work 
task involves special-use application; however, employers must replace 
the gates or chains (i.e., comply with the handrail requirement) when 
they complete the special-use task. In a special use application, it is 
important that the mobile ladder stand or platform is placed to 
minimize the risk of falls. For example, when a gate needs to be 
removed to place or remove objects from a shelf, the employer needs to 
ensure that the unit is placed so there is no gap between the unit and 
shelf that could result in a worker falling while performing the task. 
OSHA believes this alternative method provides flexibility for 
employers while reducing the exposure of workers to fall hazards under 
these conditions. For the purposes of this provision, a special-use 
application may include a situation in which permanent handrails block 
or impede the movement of boxes, products, or materials from the ladder 
stand or platform to shelves or other storage areas. The ANSI standard 
also includes this alternative method (A14.7-2011, Sections 4.3.5, 
4.3.6, 4.4.5, and 4.4.6). OSHA did not receive any comments on the 
proposed provisions, and adopts them as consolidated and revised.
    Final paragraph (e)(1)(vi), like the existing OSHA and proposed 
rules (Sec.  1910.29(a)(3)(i) and (f)(2); proposed paragraph 
(e)(1)(v)), requires that employers ensure the maximum work-surface 
height of mobile ladder stands and platforms does not exceed four times 
the shortest dimension of the base, without additional support. OSHA 
believes this requirement is necessary to prevent units from tipping 
over and injuring workers. Also consistent with the existing and 
proposed rules, the final rule specifies that when mobile ladder stands 
and platforms need to reach greater heights, the employer must provide 
additional support such as outriggers, counterweights, or comparable 
means to stabilize the base and prevent the unit from overturning. The 
ANSI standard includes the same requirement (A14.7-2011, Section 5.2).
    Final paragraph (e)(1)(vi) differs from the existing OSHA rule in 
one respect: it does not incorporate the testing requirement in 
existing Sec.  1910.29(f)(2) for calculating the maximum base length, 
opting instead to adopt a performance-based requirement. Similarly, it 
does not incorporate the A14.7-2011 testing provisions. OSHA did not 
receive any comments on the proposal, and adopts it with minor 
editorial clarifications.
    Final paragraph (e)(1)(vii), like proposed paragraph (e)(1)(iv), 
requires that employers ensure wheels and casters on mobile ladder 
stands and platforms are equipped with a system that will impede 
horizontal movement when a worker is on the unit. OSHA drew the final 
requirement from the ANSI standard (A14.7-2011, Sections 4.3.8 and 
4.4.9); the existing OSHA rule does not contain a similar provision. 
OSHA believes the requirement in final paragraph (e)(1)(vii) is 
necessary to prevent accidental or inadvertent movement of a mobile 
ladder stand or platform. If the stand or platform suddenly moves, it 
may cause the worker to fall off the unit. Sudden movement also can 
cause materials, equipment, and tools to fall off a mobile ladder stand 
or platform and hit employees working in the immediate area. The phrase 
``rigid and swivel'' has been removed from the proposed language 
because it is unnecessary. In addition, OSHA added the phrase ``when an 
employee is on a stand or platform'' to the proposed text to clarify 
that it is acceptable that mobile ladder stands move at other times. 
OSHA did not receive any comments on the proposed rule, and adopts it 
as discussed.
    Final paragraph (e)(1)(viii), like proposed paragraph (e)(1)(vii), 
requires that employers ensure mobile ladder stands and platforms do 
not move while workers are on them. The final rule will prevent workers 
from falling from mobile ladder stands and platforms. Working on a 
unit, particularly on the top step or platform, raises the unit's 
center of gravity, causing the unit to become less stable. If somebody 
moves the unit, intentionally or not, a worker on the unit could lose 
his or her balance and experience a serious fall. The same consequences 
could occur if a worker rides on a mobile ladder stand or platform when 
somebody moves the unit to a new location in the workplace.
    OSHA also drew this requirement from A14.7-2011 (Section 6.4) 
because the existing rule does not contain a similar requirement. OSHA 
did not receive any comments on the proposed rule, and adopted it as 
proposed with minor editorial changes for clarity.
    Final paragraph (e)(2) establishes design requirements for mobile 
ladder stands that apply to mobile ladder stands in addition to the 
general mobile ladder stand and platform requirements in final 
paragraph (e)(1). As with the general requirements in final paragraph 
(e)(1), OSHA carried forward most of the provisions in final paragraph 
(e)(2) from its existing rule (Sec.  1910.29) or from A14.7-2011.
    Final paragraph (e)(2)(i), like proposed paragraph (e)(2)(i), 
establishes requirements for mobile ladder stand steps. The employer 
must ensure that these steps:
     Are uniformly spaced and arranged;
     Have a maximum rise of 10 inches; and
     Have a minimum depth of 7 inches.
    The final rule also requires that the employer ensure the slope 
(angle) of the

[[Page 82547]]

``step stringer'' to which the steps are attached is not more than 60 
degrees from horizontal. A step stringer (also called a ``stile'' or 
``siderail'') is the inclined structural member that supports the steps 
(treads).
    The requirements in final paragraph (e)(2)(i) are consistent with 
the general requirements for ladders in final paragraph (b) of this 
section. Final paragraph (b) also requires that ladder steps be 
``parallel, level, and uniformly spaced'' (final paragraph (b)(1)) and 
have steps spaced ``not less than 10 inches and not more than 14 inches 
apart'' (final paragraph (b)(2))(see discussion of final paragraph (b) 
above).
    Final paragraph (e)(2)(i) differs from the existing OSHA rule 
(Sec.  1910.29(f)(3)) in two respects. The final rule does not carry 
forward the existing requirements to have (1) a 9-inch minimum rise for 
mobile ladder stand steps, and (2) a minimum 55-degree slope for step 
stringers. OSHA believes final paragraph (e)(2)(i) simplifies the rule 
and provides greater compliance flexibility. Since the final rule is 
virtually identical to the ANSI standard (A14.7-2011, Section 4.3.3), 
OSHA also believes the revisions to the final rule do not compromise 
worker protection. OSHA did not receive any comments on the proposed 
rule, and adopted it with minor editorial revisions.
    Final paragraph (e)(2)(ii), like proposed paragraph (e)(2)(iii) and 
the ANSI standard (A14.7-2011, Section 4.3.6), establishes requirements 
for mobile ladder stands with a top step height more than 10 feet above 
lower levels. Final paragraph (e)(2)(ii) requires that employers ensure 
these mobile ladder stands have handrails on three sides of the top 
step. The employer must ensure that the handrail has a vertical height 
of at least 36 inches. Also, top steps with a length (depth) of at 
least 20 inches, front to back, must have midrails and toeboards.
    The requirements in final paragraph (e)(2)(ii) provide additional 
protection from falls and falling objects that are particularly 
important when employees work on taller mobile ladder stands. To 
protect workers from falls, final paragraph (e)(2)(ii) ensures that 
workers have a handhold to grab onto while they are climbing or located 
on the top step. In addition, final paragraph (e)(2)(ii) requires top 
steps that are at least 20 inches in depth to be provided with a 
midrail and toeboard. This protects adjacent workers from falling 
objects when the top step becomes large enough for the possibility of 
materials, tools, equipment, or other objects to be placed on the top 
step. OSHA drew the requirements in final paragraph (e)(2)(ii) from the 
ANSI standard (A14.7-2011, Section 4.3.6). The existing OSHA rule 
(Sec.  1910.29(f)(4)) does not include any of these protections.
    Although final paragraph (e)(2)(ii) is similar to proposed 
paragraph (e)(2)(iii), it also differs in some respects. OSHA 
reorganized the final paragraph so it is a plain-language provision. 
OSHA believes that the reorganized provision in the final rule is 
easier for employers to understand than the proposed provision.
    Also, final paragraph (e)(2)(ii) contains two clarifications of the 
proposed provision. First, final (e)(2)(ii) clarifies the handrail, 
midrail, and toeboard requirements, stating that employers must provide 
these protective structures on three sides of the top step. Although 
OSHA believes that most employers understand that locating handrails, 
midrails, and toeboards on three sides is necessary to provide adequate 
protection to their workers, the final rule expressly clarifies this 
requirement.
    Second, a note to final paragraph (e)(2)(ii), like final paragraph 
(e)(1)(v), incorporates an alternative method from the handrail and 
midrail requirement for special-use applications. (See the explanation 
of the exception for special-use applications in paragraph (e)(i)(v) 
above.) OSHA did not receive any comments on the proposed provision, 
and adopts it as revised.
    Final paragraph (e)(2)(iii), like proposed paragraph (e)(2)(iv), 
requires that employers ensure the standing areas of mobile ladder 
stands are within the base frame. OSHA believes this requirement is 
necessary to ensure the stability of mobile ladder stands. Keeping the 
center of gravity within the base frame increases the stability of the 
mobile ladder stand. This requirement reduces the potential for the 
mobile ladder stand to tip when a worker is using it.
    OSHA drew final paragraph (e)(2)(iii) from the ANSI standard 
(A14.7-2011, Section 4.3.9) since the existing OSHA rule does not 
include this requirement. Consistent with the goal of making the final 
rule more performance based, OSHA did not adopt the stability-testing 
requirements in the ANSI rule (A14.7-2011, Section 5). OSHA did not 
receive any comments on the proposed provision, and adopts it as 
proposed.
    Employers must comply with the design requirements for mobile 
ladder stand platforms specified by final paragraph (e)(3), as well as 
the general requirements for mobile ladder stands and platforms in 
final paragraph (e)(1). OSHA drew most of these requirements from 
A14.7-2011. In addition, OSHA expanded the existing requirements on 
mobile ladder stands in Sec.  1910.29 that apply to mobile ladder stand 
platforms.
    Final paragraph (e)(3)(i), like the proposed paragraph and final 
paragraph (e)(2)(i), requires that employers ensure the steps of mobile 
ladder stand platforms:
     Are uniformly spaced and arranged;
     Have a maximum rise of 10 inches; and
     Have a minimum depth of 7 inches.

The final rule also requires that the employer ensure the slope (angle) 
of the ``step stringer'' to which the steps are attached is not more 
than 60 degrees from horizontal.
    Final paragraph (e)(3)(i) differs from final paragraph (e)(2)(i) in 
one respect. It includes an exception when the employer demonstrates 
that the final requirement is not feasible. In that circumstance, the 
employer may use mobile ladder stand platforms that have steeper slopes 
or vertical rung ladders, provided the employer stabilizes the 
alternative unit to prevent it from overturning. The final rule 
includes this exception because OSHA recognizes that there may be 
situations or locations where, for example, the slope of the step 
stringer on a mobile ladder stand platform may need to be greater than 
the 60-degree limit. To illustrate, there may be a workplace space 
where the employer needs to use a mobile ladder stand platform, but the 
unit does not fit. In that situation, OSHA believes it would be 
appropriate to use an alternative unit with a steeper stringer slope or 
a vertical rung ladder that takes up less space.
    The ANSI standard also includes a similar exception for mobile 
ladder stand platforms (A14.7-2011, Section 4.4.3). The exception in 
the ANSI standard specifically permits employers to use alternative 
mobile ladder stand platforms that have steps with a slope of 60 to 70 
degrees. OSHA notes that some alternative units consist of retractable 
ship's stairs which, consistent with final Sec.  1910.25(e)(1), have a 
slope of 60 to 70 degrees. When employers demonstrate the final rule is 
not feasible, OSHA notes that employers will be in compliance with 
final paragraph (e)(3)(i) if they use mobile ladder stand platforms 
with a slope of up to 70 degrees, the limit permitted by A14.7-2011, 
Section 4.4.3. The exception also requires that employers properly 
stabilize the alternative unit to reduce the risk of workers falling 
off the steeper steps. OSHA did not receive any comments on the 
proposed provision, and adopts it as discussed above.
    Final paragraphs (e)(3)(ii) and (iii) establish requirements 
addressing the

[[Page 82548]]

platform area of mobile ladder stand platforms. When the height of the 
platform is 4 feet to 10 feet, final paragraph (e)(3)(ii) requires that 
employers ensure the platform areas have handrails and midrails. 
Employers also must ensure the handrails on the platforms in this 
height range have a vertical height of at least 36 inches. As discussed 
in final paragraph (e)(2)(ii), these requirements are necessary to 
protect workers from falling off walking-working surfaces that are 4 
feet or more above a lower level.
    Although the existing OSHA rule contains a requirement for 
handrails on mobile ladder stands (Sec.  1910.29(f)(4)), it only 
requires that the vertical of height of the handrails be at least 29 
inches, which is not as protective as the ANSI standard. Therefore, 
OSHA adopted final paragraph (e)(3)(ii) from the ANSI standard (A14.7-
2011, Section 4.4.4).
    Final paragraph (e)(3)(ii) differs from the proposed rule in that 
OSHA removed the proposed requirement that mobile ladder stand 
platforms have handrails on the steps if the top step height is 4 feet 
to 10 feet. The final rule consolidated that requirement in final 
paragraph (e)(1)(v), which preserves the step-handrail requirement for 
both mobile ladder stands and platforms. (See discussion of handrails 
in the summary of final paragraph (e)(1)(v) above.) OSHA did not 
receive any comments on the proposed requirement, and adopts it as 
revised.
    Final paragraph (e)(3)(iii), like the proposal (proposed paragraph 
(e)(3)(iii)), establishes requirements for mobile ladder stand 
platforms that are more than 10 feet above a lower level. For these 
units, the final rule requires that employers must ensure that the 
exposed sides and ends of the platforms have both guardrails and 
toeboards. OSHA notes that all fall protection and falling object 
protection requirements must meet the systems criteria in final Sec.  
1910.29.
    OSHA believes it is essential that guardrails on platforms that are 
more than 10 feet in height comply with the criteria in final Sec.  
1910.29(b) to ensure that employers adequately protect workers from 
falling off the platforms. OSHA also believes that toeboards must meet 
the criteria in final Sec.  1910.29(k)(1) to ensure workers on the 
ground are not hit by falling objects. The toeboards must, consistent 
with the requirements of Sec.  1910.29:
     Have a vertical height of at least 3.5 inches;
     Not have more than a 0.25-inch clearance above the 
platform surface;
     Be solid or have openings that do not exceed 1-inch at the 
greatest dimension; and
     Be capable of withstanding a force of at least 50 pounds 
applied at any downward or outward direction at any point along the 
toeboard (see final Sec.  1910.29(k)(1)(ii)).
    Lastly, like final paragraphs (e)(1)(v) and (e)(2)(ii), final 
paragraph (e)(3)(iv) includes language, proposed as a note to this 
provision, that permits the use of removable gates or non-rigid members 
instead of handrails and guardrails in special-use applications (see 
further discussion of special-use applications in final paragraph 
(e)(1)(v) above). OSHA did not receive any comments on the proposed 
provisions, and adopts them as revised.
Section 1910.24--Step Bolts and Manhole Steps
    Final Sec.  1910.24, like the proposed rule, establishes new 
design, strength, and use requirements for step bolts and manhole 
steps. The final rule defines a step bolt as ``a bolt or rung attached 
at intervals along a structural member used for foot placement and as a 
handhold when climbing or standing'' (Sec.  1910.21(b)). Step bolts, 
often are used on metal poles or towers, and include pole-steps, 
commonly used on wooden poles such as utility poles.
    The final rule, like the proposed rule, defines manhole steps as 
``steps individually attached to, or set into, the wall of a manhole 
structure'' (Sec.  1910.21(b)). Manhole steps are cast, mortared, or 
attached by mechanical means into the walls of the base, riser, and 
conical top sections of a manhole.
    Telecommunications, gas, and electric utility industries are the 
industries that most often use step bolts and manhole steps. 
Manufacturing establishments also use them instead of conventional 
ladders and stairs, especially in locations where it is infeasible to 
use ladders and stairs.
    OSHA drew the step bolt and manhole step requirements in the final 
rule from the following six sources:
     The step bolt, pole step, and manhole ladder requirements 
in OSHA's Telecommunications standard (29 CFR 1910.268);
     The step bolt and manhole step provisions in OSHA's 1990 
proposed Walking and Working Surfaces and Personal Protective Equipment 
(Fall Protection Systems) standard (55 FR 13360), which drew its 
requirements from proposed Electric Power Generation, Transmission, and 
Distribution standard (29 CFR 1910.269) (54 FR 4974 (1/31/1989));
     American National Standards Institute/Telecommunications 
Industry Association (ANSI/TIA) 222-G-1996, Structural Standard for 
Antenna Supporting Structures and Antennas (ANSI/TIA 222-G-1996) (Ex. 
33);
     American National Standards Institute/Telecommunications 
Industry Association (ANSI/TIA) 222-G-2005, Structural Standard for 
Antenna Supporting Structures and Antennas (ANSI/TIA 222-G-2005) (Ex. 
27);
     American Society for Testing and Materials (ASTM) C 478-
13, Standard Specification for Precast Reinforced Concrete Manhole 
Sections (ASTM C 478-13) (Ex. 381); and
     American Society for Testing and Materials (ASTM) A 394-
08, Standard Specification for Steel Transmission Tower Bolts, Zinc-
Coated and Bare (ASTM A 394-08).

The requirements in final Sec.  1910.24 replace the step bolt, pole 
step, and manhole step provisions in the existing Telecommunications 
standard (Sec.  1910.268(h)), and final Sec.  1910.23 replaces the 
ladder requirements in Sec.  1910.268(h). Thus, the final rule deletes 
those requirements from Sec.  1910.268(h). Therefore, the 
telecommunications industry, as well as all other users of ladders, 
step bolts, and manhole steps in general industry must comply with the 
ladder, step bolt, and manhole step requirements in revised subpart D.
    Consistent with section 6(b)(5) of the OSH Act (29 U.S.C. 
655(b)(5)), the final rule is performance based to the extent possible. 
For example, final paragraph (a)(2) of this section requires that the 
employer ensure that step bolts are designed, constructed, and 
maintained to prevent the worker's foot from slipping off the ends, 
instead of mandating specific requirements on the size and shape that 
the step bolt heads must meet.
    OSHA notes that two of the step bolt provisions (final paragraphs 
(a)(1) and (7)), and all but two of the manhole step requirements 
(final paragraph (b)(2)), apply only to those steps installed after the 
effective date of the final rule. OSHA recognizes that many step bolts 
and manhole steps already in workplaces currently comply with the 
requirements in final Sec.  1910.24. This high rate of compliance, OSHA 
believes, is the result of the Agency issuing its Telecommunications 
standard in 1975 (40 FR 13341 (3/26/1975)), and because the national 
consensus standards addressing step bolts and manhole steps have been 
in place for a number of years. That said, OSHA believes the most 
efficient and least disruptive way

[[Page 82549]]

to implement the final rule is to require employers to comply with the 
final rule when they install new step bolts and manhole steps. 
Employers may install new step bolts and manhole steps when they 
install new structures (e.g., telecommunications and utility towers), 
or when they replace damaged step bolts and manhole steps (e.g., 
broken, missing) that are hazardous for workers to use. Because final 
paragraphs (a)(8) and (b)(3) of this section require that employers 
inspect step bolts and manhole steps, respectively, at the start of 
each work shift, OSHA believes that employers will quickly and readily 
identify whether hazardous conditions, including damage, are present. 
If such conditions are present, final Sec.  1910.22(d)(2) and (3) 
require that employers repair, correct, or replace the step bolts or 
manhole steps.
    For example, if an inspection of an electric utility tower finds a 
corroded step bolt that cannot support the required load (final 
paragraphs (a)(6) and (7)), the final rule requires that the employer 
replace it with one made of corrosion-resistant materials or with 
corrosion-resistant coatings (final paragraph (a)(1)). However, if the 
inspection shows existing step bolts still have useful life, i.e., they 
can support the required load and meet the other requirements in final 
paragraph (a), the employer can continue to use the step bolt even if 
it is not made with corrosion-resistant materials or coatings. OSHA 
believes that following this type of implementation strategy and 
schedule, rather than requiring employers to retrofit all existing step 
bolts not made with corrosion-resistant materials or coatings, will 
ensure that the final rule does not impose an undue burden on 
employers, while ensuring that the existing step bolts are safe for 
workers to use.
Paragraph (a)--Step Bolts
    Paragraph (a) of the final rule, like the proposal, establishes 
requirements addressing the design, dimensions, strength, and 
installation of step bolts. OSHA received a comment recommending that 
the final rule prohibit the use of step bolts unless it requires that 
employers provide fall protection, such as ladder safety systems, when 
workers use step bolts (Ex. 155). Dr. J. Nigel Ellis, of Ellis Fall 
Safety Solutions, referenced a 1990 Duke Power study he said 
demonstrated step bolts had a high breaking frequency, and therefore, 
that fall protection was necessary for workers using step bolts. Dr. 
Ellis also said fall protection needed to be continuous, and not 
require the worker to manipulate or handle objects when climbing.
    OSHA addressed in final Sec.  1910.28 Dr. Ellis' concerns about 
protecting workers using step bolts that break unexpectedly. That 
section requires that employers provide fall protection for workers on 
any walking-working surface with an unprotected side or edge that is 
four feet or more above a lower level (Sec.  1910.28(b)). The final 
rule is more protective than ANSI/TIA 222-G-2005, which requires that 
antenna-supporting structures designed for climbing to heights greater 
than 10 feet must have at least one climbing facility (e.g., step 
bolts) and a ``safety climb device'' (Section 12.3). The ANSI/TIA 222-
G-2005 standard defines a ``safety climb device'' as ``a support system 
that may be a cable or solid rail attached to the structure'' (Section 
12.2), and specifies that the device meet the requirements in the A14.3 
standard (Section 12.4).
    Final paragraph (a)(1), 1ike the proposed rule, requires that 
employers ensure step bolts installed in an environment where corrosion 
may occur are constructed of, or coated with, material that protects 
against corrosion. The final rule is consistent with 1990 proposed 
Sec.  1910.24(b)(6) (55 FR 13399). The ANSI/TIA 222-G-2005 standard 
requires that structural steel members and components must have zinc 
coating (Section 5.6.1). Although the national consensus standard 
specifies that hot-dip galvanizing is the preferred method, employers 
may use other equivalent methods (Section 5.6.1).
    Corrosive environments can cause damage to unprotected metals. For 
example, corrosion can lead to deterioration and weakening that may 
cause step bolts to break or fail to support the total required load. 
OSHA believes that corrosion-resistant materials and coatings will 
protect step bolts and ensure they are capable of supporting at least 
four times the maximum intended load.
    Final paragraph (a)(1), like the proposed rule, applies the 
requirement prospectively to step bolts installed on or after the 
effective date of the final rule. As noted above, OSHA believes this is 
the most efficient way to implement this provision while, at the same 
time, ensuring worker protection. Mr. Robert Miller, of Ameren 
Corporation, supported OSHA's decision to make the paragraph (a)(1) 
prospective (Ex. 189). Accordingly, OSHA is adopting paragraph (a)(1) 
as discussed.
    Final paragraph (a)(2), similar to the proposed rule, requires that 
employers ensure step bolts are designed, constructed, and maintained 
to prevent the worker's foot from slipping off the end of it. If a 
worker's foot slips off the end of the step bolt, the worker could fall 
or sustain an injury from slipping. Designing the head of the step bolt 
to prevent the worker's foot from slipping off will provide the 
requisite protection. Final paragraph (a)(2) also is consistent with 
the ANSI/TIA 222-G-2005 standard (Section 12.5(f)), as well as 1990 
proposed Sec.  1910.24(b)(5).
    The proposed rule specified that step bolts be ``designed to 
prevent slipping or sliding off the end of the bolt,'' but the proposal 
also required step bolts to be ``designed, constructed, and 
maintained'' free of recognized hazards (proposed Sec.  1910.22(a)(3)). 
Only properly designed, constructed, and maintained step bolts will be 
effective in preventing the worker's foot from slipping off the end, 
therefore the Agency added ``constructed and maintained'' to final 
paragraph (a)(2) to emphasize that step bolts must meet these 
requirements as well. OSHA did not receive any comments on the proposed 
provision and has adopted paragraph (a)(2) with the revisions 
discussed.
    Final paragraph (a)(3), like the proposed rule, requires that 
employers ensure step bolts are uniformly spaced at a vertical distance 
of not less than 12 inches and not more than 18 inches apart, measured 
center to center. The final paragraph also notes that the spacing from 
the entry and exit surface to the first step bolt may differ from the 
spacing between other step bolts. This requirement means that the 
maximum uniform spacing between alternating step bolts is 18 inches, 
resulting in a maximum spacing between step bolts on the same side of 
36 inches. OSHA believes that uniform spacing helps to ensure safe 
climbing when using step bolts. (Figure D-6 illustrates the vertical 
spacing requirements in the final rule.)
    The final rule generally is consistent with the proposed rule and 
the existing Telecommunications standard (Sec.  1910.268(h)(2)), which 
limit the maximum vertical spacing between step bolts (alternating) to 
18 inches. OSHA adopted the Telecommunications standard in 1975 based 
on recommendations of a voluntary committee of representatives from 
telephone companies and communication unions (40 FR 13341 (3/26/1975)). 
The 1990 proposal specified that the spacing between step bolts be 
between 6 and 18 inches (Sec.  1910.24(b)(1)). The ANSI/TIA 222-G-2005 
standard requires that the spacing between step bolts be between 10 to 
16 inches, with a tolerance of  1 inch (Section 12.5).

[[Page 82550]]

    In the proposed rule, OSHA requested, but did not receive, comments 
on whether the Agency should adopt the proposed requirement or the 
spacing that the ANSI/TIA 222-G-2005 standard specifies. OSHA believes 
that adopting the maximum 18-inch uniform vertical spacing requirement 
in final paragraph (a)(3) is appropriate for two reasons. First, as 
mentioned earlier, the step bolt requirement in the Telecommunications 
standard has been in place for more than 35 years. During that period, 
the telecommunications industry constructed many towers that have step 
bolts spaced no more than 18 inches apart. OSHA has no data showing 
that the maximum 18-inch vertical step bolt spacing requirement in the 
Telecommunications standard poses any safety problems or resulted in 
any injury in that industry. Moreover, OSHA believes that most of the 
telecommunications industry already is in compliance with Sec.  
1910.268, and that final paragraph (a)(3) would not impose a financial 
burden on employers.
    Second, if the 1-inch tolerance allowed in the ANSI/TIA 
222-G-2005 standard is taken into account, there is, at most, only a 1-
inch difference in the maximum vertical spacing in final paragraph 
(a)(3) and the ANSI/TIA 222-G-2005 standard. OSHA does not consider 
this difference to be significant in this provision. Therefore, OSHA is 
adopting in the final provision, the step bolt spacing requirement 
(between 12 and 18 inches) that is consistent with OSHA's 
Telecommunications standard.
    Final paragraph (a)(3), like the proposed rule, allows the spacing 
of step bolts at the entry and exit surface to the first step bolt to 
differ from the uniform spacing between the other step bolts. For 
example, the first step bolt on a monopole may be 10 feet above the 
ground. Having a higher first step bolt on a structure is not unusual; 
in many cases, this configuration limits unauthorized access to the 
structure's hazardous heights, communication devices, or electrical 
wiring.
    OSHA's Telecommunications standard also allows the spacing of the 
initial step bolt to differ from the other steps, ``except where 
working, standing, or access steps are required'' (existing Sec.  
1910.268(h)(2)). The 1990 proposal did not specifically address spacing 
of the initial step bolt. Section 12.5(a) of ANSI/TIA 222-G-2005 
requires that ``spacing shall remain uniform over a continuous length 
of climb,'' but does not address entry and exit spacing. OSHA believes 
that allowing a variation in spacing from the entry surface to the 
first step bolt or from the last step bolt to the exit surface will 
make it easier and safer for workers to establish their foothold. Once 
again, since the Telecommunication standard allows the spacing on the 
first and exit step bolt to differ and OSHA is not aware of any 
injuries or problems occurring as a result, the Agency is adopting 
paragraph (a)(3) as proposed, with minor editorial revisions.
    Final paragraph (a)(4), like the proposed rule, requires that 
employers ensure step bolts have a minimum clear width of 4.5 inches. 
The final rule is the same as OSHA's Telecommunications standard (Sec.  
1910.268(h)(2)); 1990 proposed Sec.  1910.24(b)(2); and the ANSI/TIA 
222-G (2005) standard (Section 12.5(f)).
    OSHA believes it is necessary that workers have an adequate space 
on which to step and secure their foothold while climbing or they could 
slip and fall. OSHA believes the telecommunications industry supports 
the 4.5-inch minimum clear-step width in the Telecommunications and 
ANSI/TIA 222-G-2005 standards. In addition, since both standards have 
been in place for many years, OSHA believes the industry already is in 
compliance with the minimum clear width requirement.
    Mr. Larry Halprin, of Keller and Heckman, said that OSHA should 
only apply the vertical spacing distance (final paragraph (a)(3)) and 
minimum clear width (final paragraph (a)(4)) requirements prospectively 
(Ex. OSHA-S029-2006-0662-0381). He stated that, in the OSHA notice 
reopening the rulemaking docket on subpart D, the Agency said that the 
1990 proposal specified prospective application of the revised 
provisions, and ``would allow workplaces and equipment meeting existing 
subpart D requirements to be `grandfathered in''' (68 FR 23529 (5/2/
2003)). However, neither the 2010 nor the 1990 proposed rules stated 
that OSHA would apply the vertical spacing or minimum clear width 
requirements prospectively. In addition, as mentioned, the 
Telecommunications and ANSI/TIA 222-G-2005 standards, which have been 
in place more than 35 years, include both requirements. Moreover, OSHA 
received no comments from affected industries indicating that they 
could not meet the existing vertical spacing and minimum clear width 
requirements. Therefore, OSHA believes that most employers already are 
in compliance with final paragraphs (a)(3) and (4). Accordingly, OSHA 
does not believe it is necessary to limit the vertical spacing and 
minimum clear width requirements to prospective application and adopts 
the provisions as proposed, with minor editorial revisions.
    Final paragraph (a)(5), like the 2010 and 1990 proposed rules, 
requires that employers ensure the minimum perpendicular distance 
between the centerline of each step bolt to the nearest permanent 
object in back of the step bolt is at least 7 inches. When employers 
can demonstrate that they cannot avoid an obstruction, the final rule 
permits them to reduce the minimum perpendicular clearance space to 4.5 
inches.
    The required 7-inch minimum perpendicular clearance space in final 
paragraph (a)(5) is consistent with the minimum perpendicular clearance 
for fixed ladders in final Sec.  1910.23(d)(2), the construction 
ladders standard (Sec.  1926.1053(a)(13)), and ANSI/TIA 222-G-2005 
standard (Section 12.5). However, final paragraph (a)(5), like the 2010 
and 1990 proposals, provides more flexibility than those standards. 
When the employer demonstrates that an obstruction is not avoidable, 
final paragraph (a)(5) allows employers to reduce the minimum 
perpendicular clearance to 4.5 inches for any step bolt.
    OSHA believes that a 7-inch minimum perpendicular clearance for 
step bolts, like fixed ladders, is necessary to ensure workers are able 
to maintain a secure foothold and negotiate the step bolts while they 
are climbing or working. Because the final rule gives employers the 
flexibility to reduce the minimum perpendicular clearance space for any 
step bolt if an obstruction cannot be avoided, the Agency believes that 
employers need to be able to demonstrate that they made a case-by-case 
evaluation and determination that the obstruction was not avoidable in 
the specific instance. For example, where an employer uses step bolts 
in an industrial setting because it is not feasible to use fixed 
ladders or stairs (e.g., space limits), employers need to show they 
evaluated the specific situation and considered potential options in 
determining whether they could avoid or remove the obstruction. The 
language in the final rule clarifies the Agency's intent about the 
situations in which employers may reduce the minimum perpendicular 
clearance space on a step bolt. The Agency did not receive comments on 
proposed paragraph (a)(5) and adopts the requirement as discussed.
    Final paragraphs (a)(6) and (7) address strength requirements for 
existing step bolts and for step bolts installed on or after the 
effective date of the final rule. The final rule establishes different 
strength requirements for existing and new step bolts to reduce the 
need for

[[Page 82551]]

retrofitting step bolts that currently meet the maximum intended load 
requirements in final Sec.  1910.22(b) and still have useful life.
    Final paragraph (a)(6), like the proposed rule, requires that 
employers ensure each step bolt installed before the effective date of 
the final rule is capable of supporting the maximum intended load. The 
final rule defines maximum intended load as ``the total load (weight 
and force) of all workers, equipment, vehicles, tools, materials, and 
loads the employer reasonably anticipates to be applied to a walking-
working surface at any one time'' (Sec.  1910.21(b)).
    The final provision is based on the Telecommunications standard 
requirement that employers shall ensure that no employee nor any 
material or equipment may be supported or permitted to be supported on 
any portion of a ladder unless it is first determined, by inspections 
and checks conducted by a competent person that such ladder is 
adequately strong, and in good condition (Sec.  1910.268(h)(1)), and is 
consistent with 1990 proposed Sec.  1910.24(c)(2). The ANSI/TIA 222-G-
2005 standard establishes strength specifications:

    A load factor, [alpha]L = 1.5, shall be applied to 
the nominal loads specified herein:
    The minimum nominal load on individual rungs or steps shall be 
equal to a normal concentrated load of 250 lbs [1.1 kN] applied at 
the worst-case location and direction.
    The minimum nominal load on ladders shall be 500 lbs [2.2 kN] 
vertical and 100 lbs [445 N] horizontal applied simultaneously, 
concentrated at the worst-case location between consecutive 
attachment points to the structure (Section 12.4).

    The general requirements in the final rule specify that employers 
ensure all walking-working surfaces are capable of supporting the total 
weight and force employers reasonably anticipate placing on that 
surface (Sec.  1910.22(b)). Final paragraph (a)(6) reinforces that this 
requirement applies as well to existing step bolts. OSHA believes step 
bolts that cannot support their maximum intended load are not safe to 
use, regardless of when the employer installed them.
    The ANSI/TIA 222-G standard has been in place since 2005, and OSHA 
believes most step bolts manufactured today meet the requirements of 
that standard. In addition, OSHA's experience is step bolt 
manufacturers generally specify maximum loads that step bolts can 
withstand without failure. As such, OSHA believes that most existing 
step bolts are in compliance with final paragraph (a)(6) and Sec.  
1910.22(b). That said, employers must continue to inspect step bolts to 
ensure that the loads placed on the step bolts covered by this 
provision do not exceed the maximum intended loads and manufacturer 
specifications. This is because failure or deflection of step bolts can 
occur during use, particularly since the weight on step bolts is not 
static and varies as a worker climbs. OSHA did not receive any comments 
on proposed paragraph (a)(6), and is adopting it as discussed.
    Final paragraph (a)(7), like the proposed rule, requires that 
employers ensure each step bolt installed on or after the effective 
date of the final rule is capable of supporting at least four times its 
maximum intended load. As discussed in the proposed rule, OSHA believes 
that requiring step bolts be capable of supporting four times the 
maximum intended load is necessary to provide a safety factor that is 
adequate to ensure that step bolts do not fail during use. The required 
safety factor (i.e., 4 times the maximum intended load) will provide an 
additional level of assurance that step bolt are safe for workers to 
use. OSHA believes that common engineering practice requires 
manufacturers to include a safety factor in any product design to 
account for any unanticipated conditions that may stress the product 
beyond its designed capabilities.
    Final paragraph (a)(7) is consistent with 1990 proposed Sec.  
1910.24(c)(1), which specified that ``[e]ach step bolt shall be capable 
of withstanding, without failure, at least four times the intended load 
calculated to be applied to the [step] bolt.'' In addition, as 
mentioned above, the Telecommunications standard requires any portion 
of a ladder to be ``adequately strong,'' while the ANSI/TIA 222-G-2005 
standard establishes specification requirements.
    The ASTM A 394-08 standard establishes specification for step bolts 
with nominal thread diameters of \1/2\, \5/8\, \3/4\, \7/8\ and 1-inch 
(Ex. 383). OSHA believes that \5/8\-inch diameter steel step bolts 
normally comply with the strength requirement in final paragraph 
(a)(7), and are the most commonly used step bolts in general industry. 
Manufacturers also produce step bolts smaller than \5/8\-inch diameter, 
but OSHA notes that \1/2\-inch step bolts may not comply with final 
paragraph (a)(7).
    Final paragraph (a)(7), unlike the ANSI/TIA and ASTM standards, is 
a performance-based requirement. OSHA believes that giving employers 
flexibility in determining the maximum load they anticipate applying to 
any step bolt will ensure that the maximum intended load accurately 
reflects the particular work and workplace conditions present. By 
contrast, OSHA believes that the ANSI/TIA 222-G-2005 test procedures 
are for manufacturers, not employers, because manufacturers are in the 
best position to test whether step bolts meet the strength 
requirements. Employers are free to use the specifications and test 
procedures in the ANSI/TIA national consensus standard to determine 
whether their step bolts meet the maximum intended load requirements in 
final paragraph (a)(7).
    OSHA received two comments on the proposed requirement. As 
discussed in final paragraph (a)(1), Mr. Miller, of Ameren, supported 
the Agency's decision to apply the new strength requirement in final 
paragraph (a)(7) prospectively (Ex. 189). In the second comment, Mr. 
Richard Willis, of Southern Company, questioned how employers would 
calculate the performance-based maximum intended load for step bolts in 
final paragraph (a)(7) (Ex. 192). He recommended:

    We suggest that the methodology of National Electric Safety Code 
(NESC) 2007 Rule 261N be adopted. We also feel that OSHA needs to 
state a failure criteria for 1910.24(a)(7). . . .
    Instead of using the four times the maximum intended load, OSHA 
should consider using the criteria of the NESC or IEEE 1307 (Ex. 
192).

    OSHA recognizes the methodologies in the national consensus 
standards that Mr. Willis recommended are methodologies employers can 
use to determine and ensure that step bolts are capable of supporting 
four times the maximum intended load. Employers are free to use the 
NESC and IEEE 1307 standards, which OSHA referenced in the proposed 
rule (75 FR 28901) in determining whether their step bolts are capable 
of supporting four times the total load they reasonably anticipate 
placing on the step bolt. In a 2003 letter of interpretation, OSHA 
wrote, ``We believe in most situations an employer's compliance with 
IEEE 1307-1996 will usually prevent or eliminate serious hazards'' 
(OSHA letter to Mr. Brian Lacoursiere, May 5, 2003).\21\
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    \21\ Available from OSHA's website at: 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)).
---------------------------------------------------------------------------

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

    \23\ OSHA letter to Mr. Podlovsky available at: http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_id=23731.
---------------------------------------------------------------------------

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

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

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

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

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

    \29\ The final rule also deletes the existing requirements for 
forging machine areas and veneer machinery in existing Sec.  
1910.30(b) and (c), respectively. OSHA believes these requirements 
are not necessary because Sec.  1910.22(b) of the final rule, as 
well as other general industry standards (e.g., 29 CFR part 1910, 
subpart O (Machinery and Machine Guarding)) already address those 
hazards. For example, subpart O includes standards on forging 
machines (Sec.  1910.218).
---------------------------------------------------------------------------

     American National Standards Institute (ANSI)/Industrial 
Truck Standards Development Foundation (ITSDF) B56.1-2012, Trucks, Low 
and High Lift, Safety Standard (B56.1-2012) (Ex. 384);
     ASME/ANSI MH14.1-1987, Loading Dock Levelers and 
Dockboards (MH14.1-1987) (Ex. 371);
     ANSI MH30.1-2007, National Standard for the Safety 
Performance, and Testing of Dock Loading Devices (MH30.1-2007) (Ex. 
372); and
     ANSI MH30.2-2005, Portable Dock Loading Devices: 
Standards, Performance, and Testing (MH30.2-2005) (Ex. 20).
    Both the proposed and final rules adopted provisions that generally 
are consistent with these national consensus standards. Final Sec.  
1910.26 applies to all dockboards unless a provision states otherwise.
    The final rule (final Sec.  1910.12(b)) defines a dockboard as a 
portable or fixed device used to span a gap or compensate for a 
difference in height between a loading platform and a transport 
vehicle. Dockboards may be powered or manual, and include, but are not 
limited to, bridge plates, dock levelers, and dock plates.
    ``Loading platforms,'' as used in the definition of dockboards, 
include loading docks, interior floors, driveways or other walking or 
working surfaces. ``Transport vehicles,'' as used in the definition and 
in the final rule, are cargo-carrying vehicles that workers may enter 
or walk onto to load or unload cargo and materials. Transport vehicles 
include, but are not limited to, trucks, trailers, semi-trailers and 
rail cars. Employers primarily use transfer vehicles on dockboards in 
order to move cargo and materials on and off transport vehicles. 
``Transfer vehicles,'' which are mechanical powered or non-powered 
devices to move a payload, include, but are not limited to, powered 
industrial trucks, powered pallet movers, manual forklifts, hand carts, 
hand trucks, and other types of material-handling equipment. Transfer 
vehicles include all mechanical handling equipment that 29 CFR part 
1910, subpart N, covers.
    These descriptions of transport vehicles and transfer vehicles are 
consistent with the definitions of those terms in the MH30.1-2007 and 
MH 30.2-2005 consensus standards. In proposed Sec.  1910.26(d), OSHA 
used the term ``equipment'' to reference all types of transfer 
vehicles. OSHA believes the term ``transport vehicle'' more accurately 
describes the types of equipment OSHA intends to cover in final Sec.  
1910.26.
    Paragraph (a) of the final rule, like proposed paragraph (a), 
requires that employers ensure that the dockboards are capable of 
supporting their maximum intended load. Section 1910.21(b) of the final 
rule defines ``maximum intended load'' as the total load (weight and 
force) of all workers, equipment, vehicles, tools, materials, and other 
loads that the employer ``reasonably anticipates'' to be applied to a 
walking-working surface at any one time. OSHA recognizes that not all 
dockboards are equal, and some employers may have multiple dockboards 
with different capacities. Some dockboards are made of lightweight 
materials, such as aluminum, designed to support lighter loads such as 
those that typically occur with manual material handling methods. Other 
dockboards, such as those made of steel, are typically designed to 
accommodate a heavier load, such as a laden powered industrial truck. 
Additionally, portable dockboards may be carried on transport vehicles 
for use at various loading platforms and subjected to a wide range of 
anticipated loads.
    The final rule differs from existing Sec.  1910.30(a)(1) in that 
the existing rule requires dockboards to be strong enough to carry the 
load imposed on them. As OSHA explains in the discussion of final Sec.  
1910.21(b), the term ``maximum intended load'' applies not only to 
total loads currently applied to a walking-working surface, such as a 
dockboard, but also to total loads that the employer has a reasonable 
anticipation will be placed on the walking-working surface.
    The provision for loads in final Sec.  1910.22(b) requires that 
employers ensure all walking-working surfaces are capable of supporting 
the maximum intended load that will be applied to that surface. OSHA 
believes it is important for clarity to include this performance-based 
requirement in Sec.  1910.26. OSHA included the provision in final 
Sec.  1910.26(a) to emphasize that the final rule revised the load 
criteria in the existing rule from ``load imposed'' to ``maximum 
intended load.'' Also, OSHA included the load requirement in this 
section to emphasize that it applies to all dockboards that workers 
use, regardless of whether the employer or some other entity owns or 
provides the dockboard; whether the dockboard is portable, fixed, 
powered, or manual; or whether the employer uses the dockboard as a 
bridge to a transport vehicle. Finally, OSHA included the requirement 
in this section to stress that, consistent with MH14.1-1987 (Section 
2), the design and construction of all load-supporting parts of the 
dockboard must ensure that the dockboard unit as a whole, when under 
load, is capable of supporting the maximum intended load.
    The national consensus standards also provide guidance to help 
employers comply with final paragraph (a). For example, MH14.1-1987 and 
MH30.2-2005 identify factors and circumstances employers should 
consider when ensuring their dockboards meet the load requirement in 
final paragraph (a): ``In selecting dock leveling devices, it is 
important [for employers/owners] to consider not only present 
requirements but also future plans or adverse environments'' (MH14.1-
1987 (Section 3.1(j) and MH30.2-2005 (Section 6.2.9))).
    The MH14.1-1987 standard requires that load-supporting parts of 
dockboards, including structural steels

[[Page 82564]]

and other materials, when under load, conform to American Society for 
Testing and Materials (ASTM) standards, and that all welded connections 
on dockboards comply with American Institute of Steel Construction 
standards (Sections 2(a) and (b)). Similarly, the MH30.1-2007 standard 
recommends that owners and employers never use dockboards outside the 
manufacturer's rated capacity (Section 5.4.10). OSHA believes the 
guidance these national consensus standards provide will help employers 
ensure that dockboards are able to carry, and do not exceed, the 
maximum intended load. OSHA did not receive any comments on the 
proposed provision and adopts it with editorial revisions.
    Final paragraph (b)(1), like the proposed rule, requires employers 
to ensure that dockboards put into initial service on or after the 
effective date of the final rule, January 17, 2017, are designed, 
constructed, and maintained to prevent transfer vehicles from running 
off the dockboard edge. In other words, dockboards put into service for 
the first time starting on the effective date of the final rule must 
have run-off protection, guards, or curbs. A ``run-off guard,'' as 
defined in the MH14.1-1987 standard, is ``a vertical projection running 
parallel with the normal traffic flow at each side extremity of the 
dockboard. Its intent is to avoid accidental side exit'' (Section 1.3; 
see also MH30.1-2007 (Section 1.2.16) and MH30.2-2005 (Section 2.9))). 
For example, run-off protection on many dockboards is simply a lip on 
the side of the dockboard that is bent 90 degrees from the horizontal 
portion of the dockboard. The existing rule does not include a similar 
requirement.
    OSHA believes this provision is necessary to protect workers. A 
transfer vehicle that runs off the side of a dockboard could kill or 
injure employees working on or near it. For example, forklifts used to 
load items onto a transport vehicle could seriously injure or kill the 
operator and nearby workers if the forklift runs off the side of the 
dockboard. In addition, workers using hand trucks to load and unload 
materials from a truck could lose their balance and fall if there is no 
run-off guard to prevent the hand truck from running off the side of 
the dockboard.
    Final paragraph (b)(1) is a performance-based version of the run-
off protection requirements in national consensus standards. To 
illustrate, the MH14.1-1987 standard specifies:

    Run-off guards shall be used for units that bridge an opening in 
excess of 36 in. (910 mm) from the face of the dock. The minimum 
run-off guard height shall be 2\3/4\ in (70 mm) above the plate 
surface. Ends of run-off guards shall be contoured both horizontally 
and vertically to permit a smooth transition to minimize damage to 
the tires of handling equipment. (Section 3.2(a); see also Sections 
3.4(c), 3.5, 3.6.)

    The MH30.1-2007 and MH30.2-2005 standards also contain similar 
specifications (MH30.1-2007 (Sections 5.3.2, 5.3.3) and MH30.2-2005 
(Section 6.1.4)) to prevent transfer equipment from accidentally 
running off the side of the dockboard. OSHA will deem employers that 
comply with the run-off protection specifications in MH14.1-1987, 
MH30.1-2007, or MH30.2-2005 as being in compliance with final paragraph 
(b)(1). OSHA also will consider employers that follow a different 
approach, or use dockboards with run-off guards of a different height, 
to be in compliance with the final rule, provided the run-off guards 
they use are effective in preventing transfer vehicle from running off 
the dockboard side.
    OSHA made several revisions to proposed paragraph (b) in the final 
rule. First, final paragraph (b)(1) clarifies that this provision is 
prospective only, that is, it only applies to dockboards put into 
``initial service'' on or after the effective date of the final rule. 
The final rule grandfathers existing dockboards (75 FR 29009-10), 
meaning employers do not have to replace or retrofit dockboards 
currently in use.
    Second, OSHA revised the compliance deadline for this provision. 
The effective date specified by the proposed rule was 90 days after the 
effective date of the final rule. After reviewing the record, OSHA does 
not believe that the longer proposed compliance phase-in period is 
necessary because the national consensus standards on which OSHA based 
final paragraph (b) have been in place for many years. As such, OSHA 
believes many dockboards currently in use, and virtually all dockboards 
manufactured today, already have run-off guards. Therefore, OSHA does 
not believe the compliance date in final paragraph (b) will impose an 
undue burden on employers.
    Third, OSHA added an exception (final paragraph (b)(2)) in response 
to a comment the Agency received on the proposed provision. The 
American Trucking Associations, Inc., (ATA) (Ex. 187) said the proposed 
rule was ``very broad'' and opposed the requirement that all dockboards 
have run-off protection:

    To load or to unload, the driver of the commercial motor vehicle 
backs up to the dock slowly and does not stop until contacting the 
dock or the installed dock bumper blocks. In most cases, the gap 
between the vehicle and the loading dock is no more than a few 
inches. Either a dock leveler or portable dockboard is used to 
reduce even this minimal amount of space. There is insufficient 
space between the terminal and the truck to permit a powered 
industrial truck loading or unloading freight to fall to the ground.
    OSHA's proposed requirement that portable dockboards and dock 
plates be provided with edging and curbing is ill-conceived. 
Moreover, there is no space between the side of the truck and the 
edge of dock bay opening to allow for a forklift truck to run off of 
the edge to cause death or injury to the employee.
    Further, this requirement actually would reduce safety for 
employees in the trucking industry, as providing curbing on dock 
plates would create a tripping hazard for employees walking on the 
plates (Ex. 187).

    Accordingly, ATA recommended that OSHA revise paragraph (b) to 
specify:

    [C]urbing on dockplates to prevent a vehicle from running off 
the edge of a ramp or bridging device is not required where there is 
insufficient space for a vehicle using the device to run off the 
edge and drop to the ground. Any requirement for curbing on the 
edges of ramps and bridging devices should be limited to those 
working environments where a true fall-off hazard exists (Ex. 187).

    The Agency agrees with ATA that run-off protection is not necessary 
when there is insufficient space for equipment to run off the side of 
the dockboard. Accordingly, OSHA added an exception to final paragraph 
(b)(1) specifying that employers do not have to use dockboards equipped 
with run-off guards if there is no fall hazard to guard against. This 
exception is consistent with MH14.1-1987, MH30.1-2007, and MH30.2-2005, 
which only require run-off guards when the opening the dockboard 
bridges exceeds 36 inches (MH14.1-1987 (Sections 3.2(a), 3.4(c), 3.5, 
3.6) and MH30.2-2005 (Section 6.1.4)). Unlike the national consensus 
standards, final paragraph (b)(1) does not specify what size of opening 
on the dockboard constitutes a run-off hazard. In some circumstances, 
an opening of less than 36 inches may pose a fall hazard. As such, OSHA 
believes the most effective way to determine whether a hazard exists is 
for employers to evaluate whether a particular opening poses a hazard, 
including considering factors such as the type and size of transfer 
vehicle the worker is using.
    Paragraph (c) of the final rule, like existing Sec.  1910.30(a) and 
the proposed rule, requires employers to secure portable dockboards by 
anchoring them in place or using equipment or devices to prevent the 
dockboard from moving out of a safe position. The final rule also 
specifies that, when the employer can demonstrate that it is not 
feasible to

[[Page 82565]]

secure the dockboard, the employer must ensure that there is sufficient 
contact between the dockboard and the surface to prevent the dockboard 
from moving out of a safe position.
    OSHA believes this provision is necessary to protect workers from 
injury or death. If the employer does not securely anchor the dockboard 
or equip it with a device that prevents movement, it could slide or 
drop off of the loading platform or transport vehicle, and the worker 
could fall. Workers also could fall if the dockboard moves or slides 
while they are on it. In addition, failure to secure a dockboard could 
expose workers to crush or caught-in hazards if the dockboard moves, 
and pins or strikes the worker, or causes the load the worker is moving 
to shift or fall against the worker.
    Final paragraph (c) is consistent with B56.1-2012. That standard 
also requires anchoring or equipping portable dockboards with devices 
that prevent the dockboards from slipping (Section 4.13.2). B56.1-2012 
does not include any requirements for employers to follow when 
anchoring or equipping portable dockboards from slipping is not 
feasible. It does require, like final paragraph (c), dockboards of all 
types be designed and maintained so the ends have ``substantial 
contact'' with the dock and transport vehicle to prevent the dockboard 
from ``rocking or sliding'' (Section 4.13.5). Similarly, MH14.1-1987 
(Section 3.7(b)), MH30.1-2007 (Section 5.1.7), and MH30.2-2005 (Section 
6.2.2) require at least 4-inch overlap between the edge of a dockboard 
and the edge of the supporting surface (e.g., dock, platform, trailer 
track bed). OSHA did not incorporate a specific minimum overlap in the 
final rule because it believes that what constitutes an adequate 
overlap may involve a number of factors that employers need to 
determine on a case-by-case basis. OSHA did not receive any comments on 
proposed paragraph (c) and finalized the paragraph as discussed.
    Final paragraph (d), like the proposed rule, requires that 
employers provide and use measures (e.g., wheel chocks, sand shoes) to 
prevent transport vehicles from moving while dockboards are in place 
and workers are using them. OSHA believes it is necessary to prevent 
transport vehicles from moving in order to protect workers from falling 
when they work on dockboards. If a transport vehicle moves when a 
worker is on the dockboard, the sudden movement may cause the worker to 
fall off the dockboard or the dockboard may be displaced and fall to 
the ground along with the worker.
    The proposed and final rules expand the existing rule (Sec.  
1910.30(a)(5)), which only requires that employers prevent ``rail 
cars'' from moving when workers are using dockboards to load/unload 
cargo. However, workers also are exposed to fall hazards when they use 
dockboards to load/unload other types of transport vehicles. As a 
result, OSHA expanded the existing rule to ensure that workers are 
protected whenever they use dockboards, regardless of the type of 
transport vehicle workers are loading/unloading.
    The final rule gives employers flexibility in selecting measures to 
prevent the transport vehicle from moving. Employers must ensure 
whatever measures they use are effective in preventing movement, 
regardless of the type of transport vehicle the employer is loading/
unloading. For example, for wheel chocks, which are one of the most 
frequently used measures to prevent transport vehicles from moving, the 
size of the transport vehicle wheel determines the size of the wheel 
chock that will be effective to prevent the vehicle from moving.
    OSHA received one comment on the proposed rule. ATA said the 
requirement is both unnecessary and conflicts with section (4)(b)(1) of 
the OSH Act (29 U.S.C. 653(b)(1)):

    FMCSA's [Federal Motor Carrier Safety Administration] brake 
regulations address this condition and preclude OSHA's wheel 
chocking requirements. Jurisdiction in this matter was asserted in a 
2001 letter from then FMCSA Acting Deputy Administrator Julie 
Cirillo to OSHA officials. The letter clearly asserts FMCSA's 
exclusive jurisdiction over the immobilization of parked vehicles in 
stating that FMCSA's parking brake regulations were ``written 
specifically to protect truck drivers and anyone else who might be 
injured by inadvertent movement of a parked commercial motor 
vehicle.'' . . . We believe [FMCSA] brake regulations constitute an 
`exercise of statutory authority' to prescribe or enforce standards 
or regulations affecting occupational safety or health (Ex. 187).

    Department of Transportation (DOT) regulates interstate 
transportation of ``commercial motor vehicles'' (CMV) traveling on 
public roads, thus, pursuant to section 4(b)(1) of the OSH Act, OSHA is 
preempted. DOT regulations define a CMV, in part, as a self-propelled 
or towed vehicle used on the highways in interstate commerce, if the 
vehicle:
     Has a gross vehicle weight rating or gross vehicle weight 
of at least 10,001 pounds, whichever is greater; or
     Is used in transporting materials found by the Secretary 
of Transportation to be hazardous as defined by DOT regulations and 
transported in a quantity requiring placarding under DOT regulations 
(49 U.S.C. 31132).
    DOT regulations do not apply to transport vehicles that do not meet 
the definition of CMV, do not operate in interstate transportation, or 
are not used on public roads. OSHA continues to have authority over:
     Transport vehicles that do not meet the definition of CMV; 
and
     CMVs not operated in interstate commerce, which includes 
CMVs that transport materials on private roads or within a work 
establishment.
    OSHA has the authority to enforce chocking requirements in these 
situations, which the Agency outlined in two letters of interpretation 
(Letter to Mr. Turner, November 8, 2005 \30\ and letter to Mr. Cole, 
March 7, 2011 \31\). Thus, to the extent that FMCSA covers the specific 
vehicle, final paragraph (d) does not apply. That said, OSHA believes 
final paragraph (d) is necessary because not all transport vehicles are 
CMVs or used on public roads. Employers use transport vehicles to move 
material and equipment within their facilities. In addition, most 
transport vehicles are loaded and unloaded off public roads. Therefore, 
OSHA adopted proposed paragraph (d) with editorial revisions.
---------------------------------------------------------------------------

    \30\ OSHA letter to Mr. Turner available at: 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.
---------------------------------------------------------------------------

    Final paragraph (e), like existing Sec.  1910.30(a)(4) and the 
proposed rule, requires that employers equip portable dockboards with 
handholds or other means that permit workers to safely handle the 
dockboard. Handholds and other means of gripping are necessary so 
workers are able to move and place dockboards without injuring 
themselves or others. If workers cannot handle or grip a dockboard 
safely, they could drop it on their feet, crush their fingers while 
putting the dockboard into place, or fall. Handholds also make it 
possible to place dockboards into the proper position (e.g., adequate 
overlap, secure position) so the dockboards will be safe for workers to 
use.
    Final paragraph (e) is essentially the same as existing Sec.  
1910.30(a)(4) and is consistent with B56.1-2012 (Section 4.13.3), 
MH14.1-1987 (Section 3.2.(b)), MH30.1-2007 (Section 5.2.1), and MH30.2-
2005 (Section 6.1.6). OSHA notes that these national consensus 
standards also specify that, when handling a portable dockboard

[[Page 82566]]

mechanically, employers must provide forklift loops, lugs, or other 
effective means to move or place the dockboard. There were no comments 
on the provision and OSHA adopted the provision with minor editorial 
revisions.
Section 1910.27--Scaffolds and Rope Descent Systems
    Final Sec.  1910.27, like the proposed rule, addresses scaffolds 
and rope descent systems (RDS) used in general industry. The purpose of 
Sec.  1910.27 is to protect workers whose duties require them to work 
at elevation, whether on scaffolds or RDS. The existing standards 
(Sec. Sec.  1910.28 and 1910.29) address scaffolds, but not RDS. Prior 
to the final rule, OSHA regulated the use of RDS under the general duty 
clause (29 U.S.C. 654(a)(1)) and through written policy statements that 
established minimum expectations for employers who use RDS.
    For two reasons, OSHA divided the final rule into separate 
paragraphs for scaffolds and RDS. First, the record shows that the 
hazards involved in working on scaffolds are different from the hazards 
associated with using an RDS (Exs. 66; 122; 221). Second, based on 
comments received in the record, OSHA believes that the final rule 
should not regulate RDS as a type of suspended scaffold. Uniformly, 
commenters said RDS are not suspended scaffolds (Exs. 122; 163; 205). 
For example, Mr. Matt Adams, with Rescue Response Gear, stated: ``Rope 
descent systems are described in this document as representing a 
variation of the single-point adjustable suspension scaffold. This is a 
terribly antiquated view of what rope work really is, and does not 
adequately acknowledge the extreme versatility and safety record of 
rope access'' (Ex. 122). The Society of Professional Access Technicians 
(SPRAT) had similar concerns, noting:

    Permitting rope descent systems to be regulated as suspended 
scaffolds is potentially hazardous in that this does not adequately 
address the versatility, safety, and training required to achieve 
safety while working suspended on rope. The hazards associated with 
suspended scaffolds do not in any way emulate the hazards associated 
with roped access work, and as a result the mitigation measures, 
training, and equipment requirements also differ (Ex. 205).

    For the reasons discussed above, OSHA also revised the title of 
this section of the final rule to ``Scaffolds and Rope Descent 
Systems'' from the proposed ``Scaffolds (including rope descent 
systems).'' OSHA agrees with commenters that the proposed title may 
mistakenly imply that RDS are a type of scaffold (Exs. 122; 221). The 
only purpose of the proposed title was to indicate that RDS, like 
scaffolds, involve working at elevated work locations.
    OSHA notes that a number of stakeholders who commented on various 
provisions of proposed Sec.  1910.27 submitted almost identical 
comments. OSHA does not cite to all of these comments when discussing 
each provision of the final rule. Instead, OSHA cites to samplings of 
those comments when addressing an issue.
    OSHA drew the rope descent system requirements in the final rule 
from the following sources:
     1991 OSHA memorandum to regional administrators allowing 
the use of RDS when employers follow all of the provisions outlined 
therein (Ex. OSHA-S029-2006-0062-0019);
     American National Standards Institute/American Society of 
Safety Engineers ANSI/ASSE Z359.4-2012 Safety Requirements for 
Assisted-Rescue and Self-Rescue Systems, Subsystems and Components 
(ANSI/ASSE Z359.4-2012) (Ex. 387); and
     American National Standards Institute/International Window 
Cleaning Association I-14.1-2001--Window Cleaning Safety (I-14.1-2001) 
(Ex. 14).\32\
---------------------------------------------------------------------------

    \32\ After the rulemaking record was closed and certified on 
June 13, 2011, ANSI administratively withdrew ANSI/IWCA I-14.1-2001, 
Window Cleaning Safety, on October 23, 2011, because the standard 
had not been revised or reaffirmed by the deadline required. ANSI 
Essential Requirements (www.ansi.org/essentialrequirements) specify 
all that ANSI national consensus standard must be revised or 
reaffirmed within 10 years from their approval as an American 
National Standard or the standard is automatically withdrawn 
(Section 4.7 Maintenance of American National Standards).
    SEIU Local 32BJ objected to OSHA's reliance on I-14.1-2001, 
arguing that the ANSI/IWCA I-14 committee did not operate by 
consensus and misrepresented votes (Ex. 316, 324, Ex. 329 (1/19/
2011), pgs. 5-8). The Local submitted a number of documents 
purportedly substantiating this claim (see Ex. 316-320). However, 
ANSI has due process requirements that standards developers must 
follow. Because the I-14 committee was accredited by ANSI and the I-
14.1-2001 standard was approved by ANSI, OSHA presumes those 
requirements were followed. ANSI's requirements include procedures 
for dealing with the sort of objections Local 32BJ has made, and 
nothing in these documents show that Local 32BJ presented its claims 
to ANSI, through an appeal or otherwise. OSHA is unable to ascertain 
from the Local's documents that the I-14 committee did not follow 
the ANSI rules.
---------------------------------------------------------------------------

Paragraph (a)--Scaffolds
    Final paragraph (a), like the proposed rule, requires that 
employers ensure scaffolds used in general industry meet the 
requirements in the construction scaffold standards (29 CFR 1926, 
subpart L (Scaffolds)), and, as a result, the final rule deletes the 
existing general industry scaffold requirements (existing Sec. Sec.  
1910.28 and 1910.29). The construction scaffold standards, which OSHA 
updated on August 30, 1996 (61 FR 46104; 61 FR 46107; 61 FR 46116)), 
are more current than the general industry standards, which OSHA first 
adopted in 1974 (39 FR 23502), and last updated in 1988 (53 FR 12121 
(4/12/1988)).
    The final rule, similar to the proposed and construction scaffold 
rules, defines scaffold as a ``temporary elevated or suspended platform 
and its supporting structure, including anchorage points, used to 
support employees, equipment, materials, and other items'' (Sec.  
1910.21(b)). For the purposes of final subpart D, scaffolds do not 
include crane-suspended or derrick-suspended personnel platforms or 
RDS. OSHA's standard on powered platforms for building maintenance 
(Sec.  1910.66) addresses personnel platforms used in general industry.
    Commenters supported making OSHA's general industry and 
construction standards consistent. For example, Mr. Bill Kojola with 
the AFL-CIO, said: ``We believe that it is important to have consistent 
standards that address scaffolds so that all workers, regardless of the 
industry in which they work, have equal or equivalent protection from 
the hazards that are associated with scaffolds'' (Ex. 172). At the 
hearing on the proposed rule, Mr. Kojola added:

    OSHA is proposing that general industry comply with the 
construction industry's scaffold standards in 29 CFR 1926(L). . . . 
By requiring employers in general industry to comply with the 
construction scaffold standards, consistency will be achieved as 
well as a decrease in any confusion that . . . would likely arise if 
the standards were different between these two industries (Ex. 329 
(1/20/2011, p. 222)).

Mr. Mark Damon, president of Damon, Inc., observed: ``My experience is 
that people in general industry are sometimes involved in the erection 
of scaffolds. I believe . . . similar protection should be afforded to 
workers in general industry'' (Ex. 251).
    OSHA believes that the final rule will ensure consistent 
application of the general industry and construction standards, and 
increase understanding of, and compliance with, the final rule by 
employers who perform both general industry and construction work. The 
record indicates that many general industry employers who use scaffolds 
also perform construction work on scaffolds; therefore, they already 
are familiar with the construction scaffolds standards. OSHA believes 
that having those employers comply with a single set of requirements 
will facilitate

[[Page 82567]]

compliance and, thus, provide greater worker protection. In addition, 
these employers will not have to change their current practices to meet 
the requirements of the final rule. OSHA also believes that other 
general industry employers should not have difficulty complying with 
the final rule. The construction scaffold standards include all 21 
types of scaffolds the existing general industry standards regulate. 
Therefore, OSHA finalizes paragraph (a) as discussed.
Paragraph (b)--Rope Descent Systems
    Final paragraph (b), similar to the proposed rule, establishes 
requirements for rope descent systems (RDS) when employers use them. 
The final rule defines an RDS as a ``suspension system that supports an 
employee in a chair (seat board) and allows the employee to descend in 
a controlled manner and, as needed, stop at any point during the 
descent'' (Sec.  1910.21(b)). An RDS, sometimes referred to as 
controlled descent equipment or apparatus, usually consists of a roof 
anchorage, support rope, descent device, carabiner(s) or shackle(s), 
and a chair (seat board) (Sec.  1910.21(b)). The final rule definition 
also expressly states that an RDS does not include industrial rope 
access systems.
    The use of RDS is prevalent in the United States today. Employers 
frequently use RDS in building cleaning (including window cleaning), 
maintenance, and inspection operations. As far back as 1990, OSHA noted 
that, according to some estimates, 60 percent of all window cleaning 
operations used RDS (55 FR 92226). In 2010, Valcourt Building Services 
(Valcourt) stated that about 70 percent of all window cleaning 
operations in high-rise buildings in the United States used RDS (Ex. 
147).
    OSHA's existing general industry and construction standards do not 
address the use of RDS.\33\ In the 1990 proposed rule, OSHA requested 
comments on whether OSHA should allow or prohibit the use of RDS (55 FR 
29224, 29226 (7/18/1990)). Although OSHA did not finalize the 1990 
proposal, in 1991 the Agency issued a memorandum allowing the use of 
RDS when employers follow all of the provisions outlined in that 
memorandum (hereafter, ``1991 RDS memorandum'') (Ex. OSHA-S029-0662-
0019).\34\
---------------------------------------------------------------------------

    \33\ The existing general industry rule only covers boatswain's 
chairs (29 CFR 1910.28(j).
    \34\ 1991 RDS Memorandum is available from OSHA's Web site at: 
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.
---------------------------------------------------------------------------

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

    Mr. Lapham, of Valcourt, said their experience indicated that the 
following factors necessitated limiting RDS use to a maximum of 300 
feet:
     The significant increased effect of wind at heights above 
300 feet;
     The significant increased length and weight of ropes 
required for using RDS above 300 feet; and
     The increased potential that moving the weightier ropes 
will ``literally pull a window cleaner over the edge of the building'' 
roof (Ex. 147).
    Other commenters agreed with Valcourt's analysis. Ms. Kelley 
Streeter, of Vertical Access, said ropes longer than 300 feet are heavy 
and moving or working with such lengths can be hazardous and strenuous 
for workers (Ex. 329 (1/21/2011, p. 98)). Mr. Brian Gartner, of 
Weatherguard Service, Inc. (Weatherguard), agreed, and identified 
additional factors that contributed to the danger of using RDS above 
300 feet:

    In my opinion, based on testing and evaluation and basic 
engineering concepts, 300 feet is at the high end of the safe use 
range. Suspensions over 225 feet start responding to the effects of 
wind on the ropes and the worker. The longer the rope, the more 
surface area is exposed to the wind. The wind effect is variable. 
The lower the worker is from the roof, there is more rope above him 
or her that can be subjected to the wind, thus the higher the 
suspension, the more the worker is free to move.
    The longer the suspension the greater the ``spring'' in the 
suspension and safety ropes. This springiness is in all synthetic 
ropes that are in the diameter ranges that are used for this purpose 
whether they are static type ropes or other rope types. There are 
many other factors that contribute to the dangers of rope descents 
above 300 feet. For every foot of increased suspension, the dynamics 
and conditions change and become more problematic (Exs. 329 (1/19/
2011, pgs. 253-254); 331).

    Mr. Gartner added that there is a marked difference in handling RDS 
ropes (support and fall arrest) on buildings less than 300 feet 
compared to buildings above 300 feet: ``[T]he differences of how the 
winds affect [the ropes] and you, on the roof, and the trouble 
discerning what is happening with the ropes will speak volumes 
regarding the safety issues of building height and rope descent'' (Ex. 
331; see also Ex. 300). For example, he said moving heavier ropes has 
the potential of pulling workers over the edge of the building (Ex. 
147). In conclusion, he stated: ``Those that minimize, overlook, or 
disregard all of these factors, as they are all safety concerns, are 
not responsibly or realistically addressing the height issue and 
manifesting a disregard to worker and the public's safety'' (Exs. 329 
(1/19/2011, pgs. 253-254); 331).
    Some commenters said the 300-foot height limit would not be a 
burden on most employers. Mr. Gartner said, ``The [number] of buildings 
in the United States taller than 300-feet is miniscule when compared to 
the [number] of buildings under 300 feet in height'' (Ex. 331). Mr. 
Coleman said that the 300-foot limit would affect only six percent of 
office buildings in the 19 largest national markets:

    If you were to take the study out to additional markets the 
effect would be even less since smaller/shorter buildings are 
typically built in these markets. If you were to add schools, 
hospitals and hotels to a study the effect would be even less since 
again these types of structures are typically shorter except when 
located in a major metropolitan area. Of the 6% of buildings over 11 
floors the vast majority of them will have either permanent rigging 
or building owned davits and tie-backs thereby reducing the cost 
effect of lowering the height (Ex. 215).

    Finally, commenters said OSHA should adopt the 300-foot height 
limit because the I-14.1-2001 national consensus standard requires it. 
Mr. Lapham, of Valcourt, who was one of the members of I-14.1-2001 
committee, said it took ``multiple decades'' for the industry to agree 
to the 300-foot limit in the I-14.1-2001 standard, so OSHA should not 
eliminate it ``under any circumstance'' (Ex. 147). Mr. Gartner, of 
Weatherguard, and also a member of the I-14.1-2001 committee, said that 
Ontario, Canada, also adopted the I-14.1-2001 standard's 300-foot limit 
for RDS:

    Canada spent much time and money in the establishment of their 
Code with respect to the height limit of 300 feet.\36\ They did 
studies, hired consultants and deliberated at length. Their Code was 
promulgated due to the high death toll of their window cleaners; 
they had one fatality a month before the code was enacted (Ex. 331).
---------------------------------------------------------------------------

    \36\ The Ontario window cleaning regulation specifies that 
employers must not use controlled descent devices above 90 meters, 
which equals 295.276 feet (R.R.O. 1990, Regulation 859 Sec.  28(c)).

    Many commenters opposed the proposed 300-foot RDS height limit for 
various reasons (Exs. 126; 151; 163; 178; 184; 205; 218; 219; 221; 222; 
242). Most of those commenters said there was no safety-related reason 
to impose the height restriction, claiming that using RDS at heights 
above 300 feet is safe (Exs. 151; 163; 184; 218; 242). Mr. Terry, of 
Sparkling Clean, said using RDS ``at all heights is routinely performed 
safely [and] successfully . . . in many parts of the country'' (Ex. 
163). He considered using RDS at any height to be so safe that ``I 
believe the proposed 1910.27(b) should actually read [that using RDS] 
is encouraged at any height'' (Exs. 163; 329 (1/19/2011, p. 330)). He 
added that OSHA's final rule also should allow employers to use RDS as 
a substitute to the means and methods originally designed into the 
building or structure when the design of the building or structure will 
safely support the use of the RDS (Ex. 163).
    A number of commenters said their injury data also demonstrated 
that RDS are safe to use at any height. These commenters said that they 
had no recordable incidents related to using RDS on taller buildings 
(Exs. 163; 184; 242). Mr. Terry said his analysis of nine RDS incidents 
that involved RDS use over 300-feet indicated that none of the cases 
involved the height of the work as the cause of the incident (Ex. 163).
    Many commenters said they considered RDS to be safer than powered 
platforms at any height, including above 300 feet, and, thus, there was 
no reason for OSHA to impose the 300-foot height limit on their use. 
For example, Corporate Cleaning said RDS are safer than powered 
platforms at all heights below 700 feet because they are more 
maneuverable, and allow workers to descend more quickly in an emergency 
(Ex. 126).
    Other commenters disputed the argument that the effects of wind on 
RDS used above 300 feet are greater than for suspended scaffolding/
powered platforms. Some commenters said there was no difference in the 
effects of wind on RDS use than on powered platforms at any height 
(Exs. 163; 205). For instance, Ms. McCurley, of SPRAT, said:

    We . . . find that the height restrictions and the wind exposure 
to be. . . unfounded. In practical living and in practical working, 
we find that all of these things are a matter of skills, knowledge 
and good decision-making. If the wind is too high that day, if there 
is ice out there that day, you just don't go. And that's true of 
whether you are using a scaffold or a powered platform or a ground-
based system or whatever. You just have to

[[Page 82573]]

make the right decision based on the gear that you are using (Ex. 
329 (1/19/2011, p. 154)).

    Some commenters who opposed the proposed 300-foot RDS height limit 
claimed it was ``arbitrary.'' For instance, Mr. Ken Diebolt, of 
Vertical Access, said:

    My primary objection is to the 300-foot limit . . . [is] it 
seems to us completely arbitrary. I mean, once you're X number of 
feet off the ground, once you're 10 feet off the ground, 50 feet, 
100 feet, it doesn't really--you're no safer at 300--at 100 feet 
than you are at 300 feet or 500 feet if you're doing the work well. 
And I wonder where this came from. It comes from the window washing 
industry but I have no history of that and I don't know (Ex. 329 (1/
21/2011, p. 138)).

    Mr. Adkins, of Corporate Cleaning, agreed:

    We urge you not to adopt that limitation, especially as it is 
written in your proposals. . . . It appears to be an arbitrary limit 
and does not, is not based on any kind of empirical research to 
determine that there is a problem in fact with the use of ropes in 
excess of 300 feet. In fact, I haven't been able to find any 
evidence of any accidents or any serious incidents where the length 
of the rope had anything to do with it (Ex. 329 (1/19/2011, p. 
204)).

    In addition, several commenters disputed there was consensus 
supporting the RDS height limit. For example, Mr. Adkins said:

    [T]here is an implication there's a consensus in this industry 
supporting the 300-foot rule. I think a lot of testimony we've had 
here today makes it clear that that is not the case. Not only do I 
not believe it, not only will you hear from other individuals in the 
window washing industry who do not support that, you also heard from 
people on the other side, Mr. Stager from the Union who doesn't 
believe there's been an effective consensus developed on it (Ex. 329 
(1/19/2011, pgs. 203-212)).

    However, Mr. Bright, chair of the I-14.1-2001 committee, said there 
was ``broad agreement'' among the committee to include a 300-foot RDS 
height limit, which is ANSI's definition of ``consensus'' (Ex. 329 (1/
19/2011), pgs. 244-46).
    Commenters opposing the RDS height restriction also said the IWAC 
based the I-14.1-2001 requirement more on emotions and economics than 
on safety (Ex. 163; 184; 221; 222; 241). The comment of Mr. Sam Terry, 
of Sparkling Clean, was representative of those stakeholders:

    It is my contention that the 300' limitation is based more on 
the following two issues:
     The emotions of the untrained observer who thinks [RDS] 
looks scary
     The financial benefit to the manufacturer, designer, 
installer or equipment associated with suspended scaffolding and the 
large window cleaning companies who can limit their competition by 
restricting the use of the less expensive option of [RDS] (Ex. 163).

    Mr. Adkins agreed:

    Now like I said, those people worked very hard on it, I don't 
dispute that, but the I-14 Committee or 50 percent of them were not 
window washers. They are from other industries and they are very 
honest, hard-working people of integrity but they have legitimate 
business interests to look at enforcing a 300-foot limitation or 
eliminating it all together and that has to be considered, I am sure 
(Ex. 329 (1/19/2011, pgs. 203-212)).

    Mr. Adkins also said that restricting RDS use would lead to 
economic hardship for some window cleaning companies and to higher 
unemployment (Ex. 329 (1/19/2011, p. 220), but he did not have 
knowledge of any companies that experienced economic hardship by 
following the I-14.1-2001 height restriction on RDS use. However, 
Diamond Window Cleaning said the RDS height limit would give unfair 
competitive advantage to larger companies that have, and only use, 
powered platforms or systems installed on buildings (Ex. 219). Some 
commenters said using RDS is less costly than using powered platforms, 
and requiring companies to use powered platforms would be costly (Ex. 
219). Mr. Terry explained:

    Of the buildings in my marketplace, the buildings taller than 
300 feet typically do not have permanently-installed powered 
platforms for access to the exterior of the building. Most of those 
buildings were designed and built in the last five years and do not 
have permanently installed powered platforms for access to the 
exterior of the building (Ex. 163).

    After reviewing the rulemaking record, OSHA has decided to retain 
the proposed requirement that employers not use RDS at heights above 
300 feet above grade. OSHA continues to believe that using RDS above 
300 feet is hazardous, and that adopting the height limit in the final 
rule will help protect workers from injury and death.
    OSHA agrees with commenters who said that there are many factors 
that contribute to the dangers of operating RDS above 300 feet. First, 
as the proposed preamble and commenters discussed, OSHA believes that 
using RDS at greater heights increases the potential effects of wind 
(e.g., wind gusts, microbursts, tunneling wind currents) on workers. 
OSHA believes that, when working at heights over 300 feet, the effects 
of wind on the RDS and the worker are greater in general, and greater 
than the effects imposed on heavier powered platforms. OSHA notes that 
commenters identified incidents in which workers used RDS in windy 
weather, and the wind blew the workers around the side of a building 
and 30 feet away from a building (Exs. 163; 168). Moreover, while OSHA 
agrees that workers can descend more quickly on RDS if severe weather 
suddenly occurs, excessively windy weather can buffet workers 
descending from above 300 feet, causing them to swing great distances 
during the long descent. Most likely in these situations, workers using 
RDS will have only intermittent stabilization (i.e., suction cups) so 
they can swing by the ropes and hit the building or other structures 
and get seriously injured before they reach the ground.
    Second, using RDS above 300 feet requires the use of longer ropes. 
OSHA said in the proposed rule, and IWCA (Ex. 138) agreed, that the 
greater the length of rope used for descent, the greater the effect of 
winds (e.g., wind gusts, microbursts, tunneling wind currents) (see 
also Ex. 300). Longer ropes have a greater possibility of getting 
tangled or caught on objects, especially in windy (or gusty) weather, 
leaving the worker unable to descend or self-rescue. The compilation of 
RDS incidents Mr. Terry submitted included cases in which the ropes got 
entangled in equipment lines, an antenna, and other workers' RDS lines, 
leaving the worker stuck and unable to descend (Ex. 163). These cases 
arise because, as Mr. Bright testified, employers often have a number 
of workers (e.g., 5 to 6) descending on the same side of a building at 
the same time (Ex. 329 (1/19/2011, pgs. 477, 489-490)).
    Third, OSHA agrees with Mr. Lapham, of Valcourt, and Ms. Streeter, 
of Vertical Access, who said that longer ropes needed for RDS use above 
300 feet are heavier, and moving them can be hazardous (Ex. 147; 329 
(1/21/2011, p. 98)). Taken together, OSHA finds convincing the 
arguments that workers are at an increased risk of harm when using RDS 
over 300 feet, and that the RDS height limit in the final rule is 
necessary to protect them.
    OSHA also retained the RDS height limit in the final rule because 
the I-14.1-2001 national consensus standard included the same limit. 
The American National Standards Institute (ANSI) approved the I-14.1-
2001 standard, and industry widely uses it. OSHA believes the national 
consensus standard reflects industry best practices. Commenters, 
including some who were members of the I-14.1 committee, said there was 
broad agreement to include the 300-foot RDS height limit in the I-14.1 
standard (Ex. 147; 329 (1/19/2011, pgs. 210-211, 253, 267-268)).

[[Page 82574]]

    Since IWCA issued the I-14.1-2001 standard, several jurisdictions 
have adopted the 300-foot RDS height limit. Minnesota (5205.0730, 
Subpart 6(A)) and Washington (WAC-296-878-20005) issued regulations 
limiting RDS use to 300 feet, while California now limits RDS use to 
130 feet (Cal. Code Regs., Tit. 8, Sec.  3286 (2012)). Additionally, 
OSHA believes the experience of Canada (Ontario province) deserves 
consideration (R.R.O. 1990, Regulation 859). According to Mr. Brian 
Gartner, of Weatherguard Service, who was a member of the I-14.1 
committee:

    Canada invested much time and money in the establishment of 
their code with respect to the height limit of 300 feet. They did 
studies, hired consultants, and deliberated at length. Their code 
was promulgated due to the high death toll of their window cleaners. 
They had one fatality a month before the code was enacted (Ex. 331).

    With regard to commenters' claims that economics was the basis for 
supporting or opposing the RDS height limit in I-14.1-2001 (as well as 
OSHA's proposed rule), OSHA notes that commenters on both sides of the 
issue claimed that the other side was seeking an economic advantage. 
Those commenters who supported the RDS height limit said employers were 
using RDS above 300 feet to win bids for window cleaning and save money 
(Ex. 215). For example, Mr. Gartner noted: ``RDS is the least expensive 
method to service a building, saving the building owner money while 
allowing for the largest profit margin for a window cleaning 
contractor'' (Ex. 331).
    Commenters who opposed the 300-foot RDS height limit said large 
window cleaning companies that use powered platforms instead of RDS 
were pushing for the height restriction to gain an ``unfair competitive 
advantage.'' Those commenters also said that prohibiting the use of RDS 
above 300 feet would result in loss of jobs, higher unemployment, and 
loss of income because it costs more to use powered platforms.
    During the rulemaking hearing, OSHA asked Mr. Coleman, of JOBS, 
whose company only uses powered platforms, why the company did not 
support prohibiting the use of RDS since such a prohibition would be in 
his company's best economic interests. He replied: ``Because . . . I 
understand the reality that it's here. It's going to be used and so I 
understand the importance of some regulation that's definite. Nothing 
that leaves a loophole, that leaves it up to the people in the field'' 
(Ex. 329 (1/19/2011, pgs. 315-316)). Moreover, Mr. Coleman said the 
company did not lay off any employees or lose business when they 
decided in 1985 to only use suspended scaffolding for suspended work 
(Ex. 329 (1/19/2011, p. 313)). Mr. Coleman testified that the company 
initially lost income because they did not change their prices even 
though using suspended scaffolding cost as much as 30 percent more than 
RDS use. He further noted that, the company eventually passed the cost 
to customers, ``the building owners did not really flinch when they 
understood that we were not going to use a device that there was no 
OSHA regulation for. They saw their liability rise. So . . . window 
cleaning on a building, if you put it on a chart, probably won't even 
measure as a measurable cost for most buildings'' (Ex. 329 (1/19/2011, 
p. 314)).
    In conclusion, based on analysis of comments and the record as a 
whole, OSHA believes there is substantial evidence to support retaining 
the 300-foot height limit for RDS use.
    Mr. Adkins, of Corporate Cleaning Services, recommended that OSHA, 
instead of prohibiting the use of RDS for heights greater than 300 
feet, limit their use based on wind speeds \37\ (Exs. 297; 360). Mr. 
Adkins' model assumes that a 25 mph wind speed and 300-foot rope length 
``yields a `safe' horizontal displacement,'' which he calculated to be 
5 feet (Ex. 297). According to his model, as the RDS rope length 
increases, the permissible wind speed decreases. Thus, for example, 
under Mr. Adkins' model when the rope length is 700 feet the 
permissible wind speed for RDS use would be 15 mph \38\ (Ex. 297).
---------------------------------------------------------------------------

    \37\ Mr. Adkins said the term ``wind speed'' refers to wind 
gusts (``[W]hen I talk about wind speed, I talk about a gust'' Ex. 
329 (1/19/2010, p. 234)).
    \38\ Mr. Adkins said 9 mph would be a safe wind speed when the 
rope is 700 feet if the maximum speed allowed at 300 feet is 15 mph 
(Ex. 297).
---------------------------------------------------------------------------

    The rulemaking record, however, does not support Mr. Adkins' model 
or recommendation to replace the 300-foot RDS height limit with wind 
speed limits. First, according to a study, ``Wind Effects on a Window 
Washer Suspended on a Rope,'' a 250-pound window cleaner hanging 75 
feet down from a 300 foot building in a steady 25 mph wind would be 
displaced/deflected as much as 40 feet, which is far greater than the 5 
feet Mr. Adkins' model predicts (Exs. 300; 352). Moreover, changes in 
wind speed (i.e., gusts, stops) when window cleaners are deflected 
significantly more than 5 feet could cause them to swing back into the 
building resulting in death or serious injury. In fact, the study found 
that window cleaners can be knocked over by ``moderate wind speeds'' 
(i.e., approximately 7 mph at 300 feet) and injured hitting buildings 
at a speed of 4 mph, both of which are significantly less than wind 
speeds Mr. Adkins says would be safe at 300 feet.
    Second, many stakeholders did not support limiting RDS based on 
wind gusts instead of height (e.g., Exs. 138; 147; 168; 206; 215; 300), 
or that the wind speeds limits Mr. Adkins recommends for RDS use above 
300 feet would be safe (Exs. 153; 163; 184; 298; 317; 329 (1/19/2010, 
p. 411); 331; 352). Mr. Craig Schoch, of Tractel, Inc., said OSHA 
should reject Mr. Adkins' recommendation because his ``safe'' wind 
speeds are based on incorrect deflection assumptions (Ex. 352). Other 
stakeholders, including window cleaning contractors and members of the 
IWCA I-14.1-2001 committee, said wind speeds of 20--25 mph ``are 
excessive'' or ``very dangerous,'' regardless of height (Exs. 317; 329 
(1/19/2010, p. 411); 331). Several employers said they discontinue 
using RDS when wind speeds are between 15--20 mph and stop cleaning 
windows before winds reach 15 mph (Exs. 153; 163; 184; 298). Mr. Terry 
said 15 mph is a ``reasonable'' speed limit, but added that his company 
stops window cleaning before winds reach that speed (Ex. 163). And 
although Mr. Adkins recommended the wind speed alternative, he said:

    Now, in actual fact, I've never had anybody work at 15 mph and 
never will because that, in my opinion, is too high for . . . a 
boatswain's chair, a swingstage, [and] a scaffold (Ex. 329 (1/19/
2010, p. 213)).

    Thus, OSHA does not believe there is sufficient evidence that Mr. 
Adkins' wind speed/rope length alternative would adequately protect of 
workers using RDS, and the final rule does not adopt that approach.
    Final paragraph (b)(2)(i) includes two exceptions to the 300-foot 
height limit for using RDS. Employers may use RDS above 300 feet when 
they demonstrate (1) it is not feasible to access heights above 300 
feet by any other means; or (2) other means pose a greater hazard than 
using RDS. The proposed rule would have allowed employers to use RDS at 
any height when the employer can demonstrate that ``access cannot 
otherwise be attained safely and practicably,'' which is consistent 
with I-14.1-2001.
    OSHA received a number of comments on the proposed exceptions. Some 
commenters opposed the proposed exceptions (Exs. 147; 215; 331). For 
example, Valcourt said:

    In no case should a window cleaning contractor be allowed to 
determine when RDS is acceptable over 300 feet. . . . The 
determination that RDS can be utilized on a per case basis on 
descents over 300 feet

[[Page 82575]]

should be made by a third party qualified person and/or, likely, a 
registered professional engineer experienced in facade access 
equipment (Ex. 147).

    Mr. Coleman, of JOBS, agreed with Valcourt, stating, ``This is a 
safety issue and should not be left up to an individual employer or 
employee to make an onsite decision of this nature'' (Ex. 215).
    Mr. Gartner, of Weatherguard, said OSHA's proposed exception 
allowing RDS use above 300 feet when employers cannot attain access 
``safely and practicably'' was subjective and difficult to enforce (Ex. 
329 (1/19/2011, pgs. 255-256)). He said, ``What is practical for me may 
not be practical for you and what I deem to be safely is not 
necessarily what you consider safely'' (Ex. 331).
    OSHA agrees with the commenters and revised the language in the 
final rule to make it consistent with established legal tests and 
defenses under the OSH Act.
    Final paragraph (b)(2)(ii) requires employers to ensure RDS use is:
     In accordance with manufacturer instructions, warnings, 
and design limitations (hereafter collectively referred to as 
``instructions''), or
     Under the direction of a qualified person.
    The final rule (Sec.  1910.21(b)) defines qualified as someone who, 
by possession of a recognized degree, certificate, or professional 
standing, or who by extensive knowledge, training, and experience has 
successfully demonstrated the ability to solve or resolve problems 
relating to the subject matter, the work, or the project.
    The I-14.1-2001 standard also requires that employers use RDS in 
accordance with manufacturer's instructions. In addition, the standard 
specifies that employers follow design requirements in I-14.1-2001 
(Section 5.7.1).
    OSHA believes that following manufacturer's instructions is 
critical to ensure the safety of workers who use RDS. To illustrate, 
manufacturers may design and sell ropes and equipment rated 
appropriately for recreational, but not industrial, use. The final rule 
requires that employers ensure they use only equipment that the 
manufacturer rated for industrial use. Similarly, under the final rule, 
employers must ensure that, if they replace elements of one 
manufacturer's RDS with the components of another manufacturer's 
system, the instructions specify that the components are compatible. 
Using incompatible systems or components could endanger the safety of 
workers and result in fatal accidents.
    Proposed paragraph (b)(2)(i)), like the 1991 RDS memorandum, would 
have required that employers use RDS in accordance with manufacturer or 
distributor instructions, and did not include the qualified person 
option. In the preamble to the proposed rule, OSHA requested comment 
about whether to allow employers to act in accordance with the 
instructions of either the manufacturer or a qualified person, as 
defined in Sec.  1910.21(b) (75 FR 28886).
    Commenters overwhelmingly supported adding the qualified person 
option and removing distributors (Exs. 138; 150; 153; 163; 184; 221; 
220; 241; 242; 243; 245). For instance, Martin's said it was 
appropriate to allow employers to rely on qualified persons because 
they are ``able to solve relevant problems'' (Ex. 222). Mr. Gene 
Donaldson, of Sunlight Building Services (Sunlight), also preferred 
qualified persons because they ``must have a recognized degree, 
certificate, etc., or extensive experience and ability to solve subject 
problems, at the worksite'' (Ex. 227). Mr. Lawrence Green, president of 
Clean & Polish, said he supported replacing distributors with qualified 
persons ``because distributors primarily sell the product to the end 
user and are not responsible for the safety, design and training of the 
personnel using them'' (Ex. 242).
    OSHA agrees with the commenters and revised final paragraph 
(b)(2)(ii) by adding qualified person and deleting distributor. The 
Agency believes the revised language in the final rule provides greater 
flexibility for employers, while ensuring that RDS use is at the 
direction of a person who is qualified.
    Final paragraph (b)(2)(iii), like proposed paragraph (b)(2)(ii) and 
the 1991 RDS memorandum, requires employers to ensure that each worker 
who uses an RDS receives training in accordance with Sec.  1910.30. 
This requirement means that the employer must train each worker who 
uses an RDS in the proper rigging, use, inspection, and storage of an 
RDS before the worker uses the RDS. In addition, since the final rule 
requires that each worker who uses an RDS also uses an independent 
personal fall arrest system (Sec.  1910.27(b)(2)(vi)), the employer 
must ensure that each worker receives fall hazard training before that 
worker uses an RDS in an area where the worker may be exposed to fall 
hazards (Sec.  1910.30(a)(1)). As final Sec.  1910.30 specifies, the 
fall hazard training must include the nature and recognition of the 
fall hazards in the work area; the procedures to follow to minimize the 
hazards; the correct procedures for installing, inspecting, 
maintaining, disassembling, and operating the fall protection systems 
workers will use, such as proper hook-up, anchoring, and tie-off 
techniques; and methods of inspection and storage of the equipment the 
manufacturer specifies (Sec.  1910.30(a)(1) and (3)). Moreover, to 
ensure that the RDS training meets the requirements of Sec.  1910.30, 
employers also must provide retraining when they have reason to believe 
the workers do not have the understanding and skill needed to use RDS 
safely.
    OSHA notes that the final provision is similar to the I-14.1-2001 
standard, which requires that employers train workers who use RDS so 
they understand the manufacturer's instructions, inspection of 
components, accepted rigging practices, identifying anchorages, 
descending, fall arrest requirements, rescue considerations, and safe 
working conditions (Section 5.7.2).
    OSHA believes that the final provision is necessary. Evidence in 
the record indicates that some employers do not train their workers who 
use RDS (Ex. 329 (1/19/2011, pgs. 86, 100)). OSHA believes, and 
commenters agreed, that workers are able to safely use RDS only if they 
are thoroughly knowledgeable in the equipment and its proper use (Exs. 
66; 138; 151; 163; 153; 184; 216; 221; 222; 242; 243; 245; 329 (1/19/
2011, pgs. 22-24, 433)). A number of commenters said proper training is 
the most important aspect of using RDS safely (Exs. 163; 184; 221; 242; 
329 (1/19/2011, p. 252)). Those commenters also said that proper 
training would prevent most, if not all, of RDS incidents they 
identified (Exs. 163; 184; 221; 242). Similarly, Mr. Capon, of 
Valcourt, credited their training program as the reason their company 
did not have a fatality during its 25 years of operation (Ex. 329 (1/
19/2011, pgs. 419-420)). Some commenters recommended that OSHA also 
require that employers use professional organizations to train and 
certify their workers (Exs. 123; 205). The performance-based approach 
in the final rule clearly allows employers to use professional 
organizations to provide training, and to require that workers receive 
certification to operate RDS. However, the performance-based approach 
of the final rule gives employers flexibility to determine how to train 
their workers, provided the training and the training contents meet the 
requirements of Sec.  1910.30. Accordingly, OSHA does not believe it is 
necessary to adopt the commenters'

[[Page 82576]]

recommendation, and finalizes the provision as discussed.
    Final paragraph (b)(2)(iv), like proposed paragraph (b)(2)(iii), 
requires that employers ensure inspection of each RDS at the start of 
each workshift in which their workers will use it. Additionally, the 
employer must ensure damaged or defective equipment is removed from 
service immediately and replaced. The equipment inspection must include 
every component of the RDS, including safety devices, ropes, rope 
grabs, lanyards, descent devices, harnesses, seat boards, carabiners 
and other hardware. When replacing damaged or defective equipment, the 
replacement component or system must be compatible, undamaged and not 
defective. Overwhelmingly, commenters supported the requirement to 
inspect RDS equipment (Exs. 138; 151; 153; 163; 184; 221; 222; 242; 
243; 245).
    The final rule revises the proposed paragraph to clarify the 
regulatory language. First, OSHA drafted the final provision to specify 
that employers must inspect each RDS ``at the start of each workshift 
that it is to be used'' rather than ``each day before use'' as in the 
proposed rule. Therefore, the final rule specifies that employers must 
inspect each RDS before a worker uses it in their workday. Thus, to the 
extent that there is more than one workshift in a work day, the RDS 
needs to be inspected to ensure it is safe for each worker to use 
during their workshift. The inspection of RDS equipment at the start of 
each workshift ensures that any damage (such as abrasions and cracks) 
that may have occurred when using the RDS during the last workshift is 
identified, and appropriate action is taken before another worker uses 
the RDS. In addition, employers need only inspect an RDS if a worker 
will use it during a workshift, rather than each day. The language in 
the final rule clarifies this requirement.
    Second, the final rule requires that employers remove both damaged 
and ``defective'' equipment from service, while the proposed rule only 
specified removal of damaged equipment. OSHA added ``defective'' 
because, regardless of whether an inspection reveals that equipment was 
damaged during use or defectively manufactured, OSHA considers such 
equipment to be unsuitable for continued use.
    Third, OSHA added language to the final rule specifying that 
employers remove damaged or defective equipment from service 
``immediately.'' This addition is consistent with the I-14.1-2001 
standard (Section 5.7.3).
    Finally, the final rule revises the proposed rule to specify that 
employers must replace damaged or defective equipment removed from 
service. OSHA believes this language clarifies that improvised repairs 
are not allowed, consistent with I-14.1-2001 (Section 5.7.3). Replacing 
damaged or defective components is necessary to ensure that RDS are 
restored to their original condition and capacity. For these reasons, 
OSHA adopts the final provision as discussed.
    Final paragraph (b)(2)(v), like proposed paragraph (b)(2)(iv) and 
the 1991 RDS memorandum, requires that employers ensure the RDS has 
proper rigging, including proper anchorages and tiebacks. The final 
rule also requires that employers ensure that RDS rigging emphasizes 
providing tiebacks when using counterweights, cornice hooks, or similar 
non-permanent anchorage. The I-14.1 standard addresses proper rigging 
by requiring that employers train workers in ``correct'' and 
``accepted'' rigging practices (Section 5.7.2).
    Proper rigging of RDS equipment is essential to ensure that the 
system is safe for workers to use. To ensure proper RDS rigging and 
safe use, OSHA believes that employers also must take into 
consideration and emphasize the specific conditions present. For 
example, OSHA believes that giving particular emphasis to providing 
tiebacks when using counterweights, cornice hooks, or similar non-
permanent anchorages is an essential aspect of proper rigging and 
necessary to ensure safe work. To illustrate, when tiebacks and 
anchorages are not perpendicular to the building face, it may be 
necessary for worker safety for employers to install opposing tiebacks 
to support and firmly secure the RDS, have at least a 30-degree sag 
angle for opposing tiebacks, or ensure that no angle exists on single 
tiebacks. In addition, as the final rule specifies, OSHA believes that 
employers also must place emphasis on non-permanent anchorages because 
of the possibility of damage during transport and installation.
    Finally, some commenters recommended that OSHA include additional 
rigging requirements in the final rule. For example, Vannoy & 
Associates recommended that OSHA include a requirement for angle of 
attachment (Ex. 213). OSHA believes that the term ``proper rigging'' 
includes the angle of attachment and, therefore, needs no further 
elaboration. For the reasons discussed above, OSHA adopts the provision 
as discussed.
    Final paragraph (b)(2)(vi), like proposed paragraph (b)(2)(v) and 
the 1991 RDS memorandum, requires that each worker uses a separate, 
independent personal fall arrest system, when using an RDS. Final Sec.  
1910.140(b) defines personal fall arrest system as ``a system used to 
arrest an employee in a fall from a walking-working surface.'' A 
personal fall arrest system consists of at least an anchorage, 
connector, and a body harness, but also may include a lanyard, 
deceleration device, lifeline, or suitable combination of these devices 
(Sec.  1910.140(b)). The final rule requires that the personal fall 
arrest system meets the requirements in 29 CFR part 1910, subpart I, 
particularly final Sec.  1910.140. This final rule is consistent with 
other existing OSHA standards (e.g., Sec.  1910.66(j), Powered 
Platforms for Building Maintenance, Personal Fall Protection; Sec.  
1926.451(g), Scaffolds, Fall Protection), as well as the I-14.1 
consensus standard (Section 5.7.6).
    OSHA believes the provision is essential to protect workers from 
injury or death if a fall occurs. As the 1991 RDS memorandum mentions, 
requiring workers to use personal fall arrest systems that are 
completely independent of RDS ensures that any failure of the RDS 
(e.g., main friction device, seat board, support line, anchorage) does 
not affect the ability of the fall arrest system to quickly stop the 
worker from falling to a lower level.
    Commenters uniformly supported the proposed provision (Exs. 138; 
151; 153; 184; 221; 222; 242; 243). Also, Surface Solutions pointed out 
that 91 of 125 RDS incidents they reviewed as far back at 1977 resulted 
from the lack of an independent personal fall arrest system (Ex. 184). 
OSHA finds the comments and data persuasive and, therefore, adopts the 
requirement as proposed with only minor editorial change, for clarity.
    Final paragraph (b)(2)(vii) requires that employers ensure all 
components of each RDS, except seat boards, are capable of supporting a 
minimum rated load of 5,000 pounds. For seat boards, the final rule 
requires that they be capable of sustaining a live load of 300 pounds. 
In accordance with section 6(b)(8) of the OSH Act (29 U.S.C. 
655(b)(8)), OSHA revised the final provision in three ways to make it 
consistent with the I-14.1-2001 national consensus standard.
    First, the final rule revised the proposal (proposed paragraph 
(b)(2)(vi)) to require that employers ensure ``all components'' of each 
RDS, except seat boards, are capable of supporting a 5,000-pound 
minimum rated load. As the final definition of RDS specifies, these 
systems usually consist of the following components: Roof anchorage, 
support rope, descent device, carabiner(s) or shackle(s), and chair

[[Page 82577]]

(seat board) (final Sec.  1910.21(b)).\39\ I-14.1-2001 (Section 14.1.2) 
also requires that each RDS must include the same list of components. 
The proposed rule (proposed paragraph (b)(2)(vi)) and 1991 RDS 
Memorandum, by contrast, only required that ``all lines'' be capable of 
sustaining the required load, but was silent on the minimum load 
requirements for other RDS components.
---------------------------------------------------------------------------

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

    However, like I-14.1-2001, OSHA believes that requiring all RDS 
components, except seat boards, be capable of supporting the required 
minimum rated load is essential to ensure that these systems are safe 
for workers to use. It makes no difference if RDS lines and ropes are 
capable of supporting the minimum 5,000-pound required load if RDS 
connectors, anchorages, and other components cannot sustain such a 
load. In other words, all components must be able to support the 
required load because RDS are only as strong as their weakest 
component. Thus, applying the final load requirement to all RDS 
components will ensure that none of the critical components will break 
or fail when supporting a significant load. OSHA notes that commenters 
overwhelmingly support the minimum 5,000 load requirement as essential 
to ensure RDS are safe to use (Exs. 138; 151; 153; 184; 221; 222; 242; 
243).
    Second, in final paragraph (b)(2)(vii), consistent with I-14.1-2001 
(Section 14.1.4), OSHA does not apply the 5,000-pound rated load 
requirement to seat boards. Instead, OSHA incorporates language from I-
14.1-2001 (Section 14.3.1(c)) specifying that seat boards must be 
capable of supporting a live load of at least 300 pounds. I-14.1-2001 
(Section 14.3.1(a)) specifies that seat boards must be made of ``wood 
or other suitable material,'' which cannot and does not need to support 
a rated load of 5,000 pounds. OSHA notes that final paragraph 
(b)(2)(vi), as mentioned, requires that employers ensure each employee 
who uses an RDS also uses a ``separate, independent personal fall 
arrest system'' that meets the requirements in final Sec.  1910.140.
    Third, the final rule, consistent with I-14.1-2001 (Section 
14.1.4), revises the proposed rule to require that RDS components be 
capable of sustaining a minimum ``rated load'' of 5,000 pounds. The 
proposed rule specified that RDS lines be able to sustain a minimum 
``tensile load'' of 5,000 pounds. OSHA believes that ``rated load'' or 
``rated strength'' is the appropriate term to specify the ability of 
all RDS components to support a load and is consistent with the I-14.1-
2001 standard. I-14.1-2001 (Section 2) broadly defines ``rated load'' 
as ``the combined weight of the [workers], tools, equipment, and other 
materials which the device is designed and installed to lift.'' Tensile 
load, on the other hand, is the maximum stress that material can 
withstand while being stretched before breaking or failing. While the 
term is appropriate to use for identifying the required strength of 
ropes or lines, it is not a standard measure for components that do not 
stretch.
    OSHA notes that the final rule does not preclude the use of lines 
or ropes that have a knot, swage, or eye splice, which could reduce the 
tensile strength of a rope or line. However, under final paragraph 
(b)(2)(vii), even if an employer uses a line or rope that has a knot, 
swage, or eye split, the rope or line still must be capable of 
supporting a minimum rated load of 5,000 pounds. Several commenters 
supported this interpretation of the final paragraph (b)(2)(vii).
    In conclusion, OSHA believes that employers should not have 
difficulty complying with the final paragraph (b)(2)(vii) as revised. 
Virtually all RDS manufactured today meet the design requirements in I-
14.1-2001 (Section 14) (See e.g., Ex. 242). In addition, I-14.1-2001 
represents standard industry practice, thus, OSHA believes that the 
revisions to final paragraph (b)(2)(vii) will make the final rule 
easier to understand and reduce potential for confusion.
    Final paragraph (b)(2)(viii), like proposed paragraph (b)(2)(vii), 
requires that employers provide for prompt rescue of each worker in the 
event of a fall. The final rule is almost the same as the 1991 RDS 
memorandum and Sec.  1910.140(c)(21), and generally consistent with the 
I-14.1 standard (Section 5.7.11).
    Like Sec.  1910.140(c)(21), final paragraph (b)(2)(viii) 
establishes two fundamental points--(1) employers must provide for the 
rescue of workers when a fall occurs, and (2) the rescue must be 
prompt. First, providing for rescue means employers need to develop and 
put in place a plan or procedures for effective rescue. The plan needs 
to include making rescue resources available (i.e., rescue equipment, 
personnel) and ensuring that workers understand the plan.
    Appendix C to Sec.  1910.140 provides guidance to employers on 
developing a rescue plan (appendix C, Section (h)). For example, 
appendix C recommends that employers evaluate the availability of 
rescue personnel, ladders, and other rescue equipment, such as 
mechanical devices with descent capability that allow for self-rescue 
and devices that allow suspended workers to maintain circulation in 
their legs while they are awaiting rescue. OSHA's Safety and Health 
Information Bulletin on Suspension Trauma/Orthostatic Intolerance 
identifies factors that employers should consider in developing and 
implementing a rescue plan, including being aware of signs and symptoms 
of suspension trauma and factors that can increase the risk of such 
trauma, rescuing unconscious workers, monitoring suspended and rescued 
workers, and providing first aid for workers showing signs and symptoms 
of orthostatic intolerance (SHIB 03-24-2004).\40\
---------------------------------------------------------------------------

    \40\ SHIB 03-24-2006 is available from OSHA's Web site at: 
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.
---------------------------------------------------------------------------

    \42\ OSHA letter to Mr. Keith Harkins available at: https://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_id=24552.
---------------------------------------------------------------------------

    Applying the rationale in the construction standard to general 
industry, the final rule limits the use of designated areas to work on 
low-slope roofs (final paragraph (b)(13)). OSHA believes that the use 
of designated areas is appropriate on flat or gently sloping surfaces 
or when workers and work are located a safe distance from a fall 
hazard, such as a roof edge. However, OSHA does not believe that 
designated areas provide adequate protection from fall hazards on steep 
or vertical surfaces or for work performed near an unprotected edge or 
side, such as narrow walking-working surfaces. (See further discussion 
of designated areas in final paragraph (b)(13), below.)
    OSHA received several comments on the use of designated areas. 
David Hoberg, with DBM Consultants, supported limiting the use of 
designated areas because ``it is a huge opening for abuse'' (Ex. 206). 
He suggested limiting the use of designated areas to those situations 
that existed prior to publication of this final rule, are unique to the 
work such that the same work is not done at other locations using 
standard methods, and when a certified safety professional or 
professional engineer with experience in the work and conditions 
approves use of a designated area (Ex. 206). As discussed in more 
detail below (final Sec.  1910.28(b)(13)), OSHA is limiting the use of 
designated areas to low-slope roofs and to work more than 6 feet from 
the edge. Employers may use designated areas for work that is more than 
6 feet and less than 15 feet from the edge if it is both infrequent and 
temporary. If the work is not temporary or infrequent, the employer may 
use a designated area if the work is more than 15 feet from the roof 
edge. The Agency believes this clarification addresses Mr. Hoberg's 
concerns.
    Several commenters objected to the designated area approach because 
it was too different from the construction standard's requirements for 
residential roofs, and instead asked that OSHA synchronize the general 
industry requirements with the construction standard for those roofs 
(See, e.g., 124, 149, 150.). OSHA agrees in general, and the final rule 
includes a new paragraph (final Sec.  1910.28(b)(1)(ii)) addressing 
these concerns. Under this provision, employers may implement a fall 
protection plan meeting the requirements of the construction standard 
if they can demonstrate that it is not feasible or creates a greater 
hazard to use guardrail, safety net, or personal fall protection 
systems on a residential roof.
    In addition to establishing fall protection options for specific 
workplace areas and situations, final paragraph (b) also establishes 
the height that triggers the employer's obligation to provide fall 
protection. The final rule, like the existing and proposed rules, 
generally requires that employers provide fall protection when workers 
work at levels that are four feet or more above a lower level. The 
final rule, like the proposal, defines ``lower level'' as an area to 
which a worker could fall (Sec.  1910.21(b)). The definition also 
includes examples of lower levels, including ground levels, floors, 
excavations, pits, tanks, materials, water, equipment, and similar 
surfaces and structures, or portions thereof.
    Employers' duty to provide fall protection when workers can fall 
four feet or more to a lower level is not new. As mentioned earlier, 
the existing rule, which OSHA adopted in 1971, has a four-foot trigger 
height (e.g., existing Sec.  1910.23(b)(1)(i), (b)(2), (b)(3), (c)(1), 
(c)(2); Sec.  1910.268(g)). Pursuant to section 6(a) of the OSH Act, 
OSHA adopted the 4-foot trigger from ANSI A12.1-1967, Safety 
Requirements on Floor and Wall Openings, Railings and Toe Boards. As 
far back as 1932, ANSI A12.1 prescribed a 4-foot trigger height. ANSI/
ASSE A1264.1-2007, Safety Requirements for Workplace Floor and Wall 
Openings, Stairs and Railing Systems, also requires the use of fall 
protection where there is an unprotected side or edge 4 feet or more 
above a lower level (Ex. 13). Like ANSI A12.1, the ANSI/ASSE A1264.1 
standard has specified the 4-foot fall protection height requirement 
since its inception.
    Since OSHA adopted the general industry four-foot trigger, the 
Agency consistently reinforced the requirement in numerous public 
statements and Agency interpretations (e.g., letters to Mr. Paul 
Osborne (May 13, 1980); \43\ Mr. Anil Desai (September 14, 1990); \44\ 
M.O. Brown, Jr. (October 22, 1992) \45\). Moreover, as far back as 
1932, the ANSI A12.1 standard included the four-foot trigger. Thus, 
OSHA believes the general industry four-foot trigger is a well-
recognized requirement.
---------------------------------------------------------------------------

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

    In 1994, the construction fall protection standard, with some 
exceptions, set a six-foot trigger height for construction work (59 FR 
40672 (8/19/1994)). In 2003, when OSHA reopened the record for comment 
on subpart D, comments received by the Agency indicated that some 
stakeholders mistakenly believed that the general industry fall 
protection trigger height is the same as the construction fall 
protection standard. To address this confusion, OSHA clearly pointed 
out in the 2010 proposed rule that the four-foot trigger height for 
general industry ``has been standard industry practice for more than 75 
years'' (75 FR 28887).
    OSHA did not propose to revise the four-foot trigger height, noting 
that the existing rule is a long-standing requirement and standard 
industry practice. OSHA also said the results of a 1978 University of 
Michigan study supported the four-foot fall protection trigger height 
(Ex. OSHA-S041-2006-0666-0004). OSHA requested comment on the four-foot 
trigger height, including information on any recent studies and 
information that ``support or contradict'' the four-foot trigger height 
(75 FR 28887).
    A number of commenters supported retaining the existing four-foot 
trigger height (Exs. 65; 172; 226). In particular, the American 
Federation of Labor and Congress of Industrial Organizations (AFL-CIO) 
stated, ``The 4-foot rule maintains a long-standing OSHA requirement 
and industry practice that we believe is important for protecting 
workers against fall hazards to a lower

[[Page 82589]]

level'' (Ex. 172). Martin's Window Cleaning said that ``[s]ince it has 
always been OSHA's stand that [potential] falls be limited to less than 
4 [feet in general industry], then it is imperative that OSHA include 
requirements for . . . lifeline tie backs . . . in locations that would 
limit falls to this distance'' (Ex. 65). In addition, they said, ``OSHA 
should require that all fall protection systems and suspension systems 
limit falls to 4 [feet]'' (Ex. 65).
    The American Society of Safety Engineers (ASSE) urged OSHA to 
conduct research that would support a single trigger height for fall 
protection in general industry and construction, noting:

    As OSHA ably recognizes in its discussion [in the proposed 
rule], research supports the conclusion to maintain its current 4-
foot trigger height for general industry. In the same discussion, 
however, OSHA also recognizes that a 6-foot trigger height is the 
standard for construction. Despite the long-established traditions 
behind these different trigger heights, we would encourage OSHA to 
work with NIOSH to determine if appropriate research can be 
conducted that would help lead the occupational safety and health 
community to a single trigger height. If a single trigger height 
could become widely accepted, ASSE believes there would be 
significant gains in understanding the importance of fall 
protections and ways to protect employers. Given the continued high 
incidence of injuries from heights, it would be prudent to at least 
examine whether a single trigger height would be helpful (Ex. 127).

    ORC Mercer also supported a single fall protection trigger height 
for general industry and construction, although it was ``not arguing 
that OSHA should set the trigger for fall protection to six feet for 
all general industry work'' (Ex. 254). However, they said OSHA needed 
to provide a ``better explanation/justification for the disparity in 
the trigger for fall protection in General Industry maintenance work 
versus Construction work,'' stating:

    The proposed rule retains the historic disparity of a 4-foot 
trigger for fall protection in General Industry and a 6-foot trigger 
for fall protection in Construction. Although the proposal makes a 
number of arguments regarding the history of its adoption of the 
four-foot trigger for General Industry work and states that the 
four-foot rule has been used in consensus standards for more than 75 
years, OSHA has not addressed the difficulties for employers who may 
have General Industry maintenance work going on within only a few 
feet of activities that meet the definition of Construction work. 
The definition of what constitutes construction work versus work 
that falls under the General Industry [standard] continues to 
confuse employers seeking to set a consistent standard in their 
workplaces. Simply telling a construction contractor (who is 
performing work at a manufacturing site) that he must protect his 
employees whenever they may fall more than four feet above a lower 
level (because the host employer wishes that all workers on the site 
to adhere to a uniform standard) is likely to be met with resistance 
as the construction contractor's employees will have been trained 
and equipped to work with the 6-foot trigger. Hence many employers 
have simply adopted the six-foot trigger for all non-routine or 
maintenance work (Ex. 254).

ORC Mercer added that ``language and guidance for determining the 
feasibility of fall protection for work that is done between four and 
six feet above the next lower lever is needed in both the final rule 
and in any compliance documents that follow the promulgation of this 
rule'' (Ex. 254).

    Others stakeholders also supported a single trigger height, but 
argued that the single height should be six feet instead of four feet 
(Exs. 165; 202; 236). The Mechanical Contractors Association of America 
(MCAA) said, ``Construction workers performing work at existing 
facilities often have to comply with both standards, which creates 
confusion, and therefore, opportunity for unintentional noncompliance'' 
(Ex. 236). MCAA added that making the general industry trigger height 
consistent with the construction standard ``would eliminate the 
confusion and simplify compliance requirements without compromising 
worker safety,'' noting:

    This section proposes to keep the previously established four 
foot fall protection/prevention rule in place for general industry. 
However, employers are often unclear about what OSHA considers to be 
maintenance and repair, which falls under the agency's general 
industry standards (29 CFR 1910), vs. construction work, which falls 
under the construction standards (29 CFR 1926). In addition, 
inconsistencies between the two sets of standards often require 
employers to comply with both sets of standards for the same 
application (Ex. 236).

    Mr. Kramer, of LJB, Inc., raised concerns about the availability 
and effectiveness of personal fall arrest systems in situations where 
the fall hazard is only four feet, stating:

    It is clear from the proposed regulation that a personal fall 
arrest system can be used in situations where the fall hazard is 4 
feet. I acknowledge that it is possible to rig a fall arrest system 
to protect a worker from a fall where the allowable fall distance is 
4 feet. However, without a direct and in-depth discussion on fall 
clearance requirements, the statement by OSHA can be very 
misleading. Falls occurring while attached to a horizontal lifeline 
can result in total fall distances as large as 15 feet. OSHA risks 
having employers simply provide their employees with a harness, 
lanyard and anchorage when they are four feet above a lower level. 
In this case, the employee is not protected. The stated goal of 
reducing fatalities and injuries due to a fall has not been achieved 
and it is clear in these circumstances that a personal fall arrest 
system does not provide equivalent protection to a guarded platform 
(Ex. 204).

    However, other commenters said there is personal fall protection 
equipment available that can limit falls to four feet. In this regard, 
Capital Safety Group (CSG) and the International Safety Equipment 
Association (ISEA) said:

    ASSE is currently working on a standard for self-retracting 
lanyards that includes a class of [self-retracting line] that when 
anchored overhead is designed to protect workers in situations where 
fall clearance is very limited such as the case when exposed to a 4-
foot fall. OSHA should include a reference to this standard when it 
becomes available (Exs. 185; 198).

    Comments and testimony submitted in this rulemaking record have not 
persuaded OSHA that adopting a fall protection trigger height greater 
than four feet would provide equivalent or greater protection than the 
current trigger. As mentioned, existing national consensus standards 
require that employers provide fall protection where unprotected sides 
or edges are more than four feet above a lower level. Section 6(b)(8) 
of the OSH Act specifies that OSHA follow the requirements in national 
consensus standards unless the Agency can show why a rule that differs 
substantially from consensus standard ``will better effectuate the 
purposes'' of the OSH Act than the national consensus standard. None of 
the stakeholders arguing that OSHA should change its longstanding 
general industry four-foot trigger height provided any recent studies, 
data, or other information to support changing the trigger height to 
six feet. OSHA believes increasing the height at which employers must 
provide fall protection may expose workers to additional risk of 
injury, reduce worker safety, and decrease the protection afforded to 
workers by OSHA's general industry fall protection standards (75 FR 
28887).
    With regard to comments arguing that different fall protection 
trigger heights for general industry and construction would cause 
confusion and non-compliance, OSHA's experience and the rulemaking 
record do not bear that out. The general industry and construction fall 
protection trigger heights have been in place for years. OSHA's 
enforcement experience with both standards does not indicate that 
employers are confused about or not been able to comply with applicable 
fall protection height requirements. In addition, stakeholders did not 
submit comments in this

[[Page 82590]]

rulemaking indicating that they currently are experiencing confusion. 
Given that, OSHA does not believe that reaffirming the current general 
industry four-foot fall protection height trigger will cause confusion 
in the future. In any event, OSHA points out that employers will be in 
compliance with both the general industry and construction fall 
protection standards if they provide fall protection when workers are 
working four feet or more above a lower level.
    Final paragraph (b), like the proposal, includes the following four 
exceptions \46\ from the four-foot trigger height:
---------------------------------------------------------------------------

    \46\ For work on scaffolds, the final rule specifies that 
employers must protect workers from falls in accordance with the 
construction scaffold standards (29 CFR part 1926, subpart L). The 
construction scaffold standards (Sec.  1926.451(g)(1)) require that 
employers provide fall protection for workers working on a scaffold 
more than 10 feet above a lower level.
---------------------------------------------------------------------------

     When using motorized equipment on dockboards (final 
paragraph (b)(4)(ii));
     Over dangerous equipment (final paragraph (b)(6));
     Around repair, service, and assembly pits (final paragraph 
(b)(8)); and
     On fixed ladders (final paragraph (b)(9)).
    More specifically, for work performed on dockboards, the final rule 
establishes a trigger height of greater than 10 feet for guardrails or 
handrails when dockboards are used solely for materials-handling 
operations using motorized equipment. For work performed over dangerous 
equipment, the final rule, like the proposal, requires that employers 
protect workers from falling onto or into dangerous equipment 
regardless of the height at which the workers are working above the 
dangerous equipment. For work around repair, service, and assembly 
pits, the use of fall protection is not required for pits that are less 
than 10 feet deep, provided the employer limits access to the edge of 
the pit to trained, authorized employees, marks the floor around the 
edge of the pit in contrasting colors (or places a warning line at 
least 6 feet from the pit edge), and posts readily visible caution 
signs around the pit that warn workers of the fall hazard. For fixed 
ladders, the final rule adopts the proposed requirement that employers 
must provide fall protection when the ladder extends more than 24 feet 
above a lower level. (See the detailed discussion of these exceptions 
below.)
    As mentioned earlier, final paragraph (b) also adds a new provision 
for work on low-slope roofs (final paragraph (b)(13)). In addition, the 
final rule moves work on platforms used in slaughtering facilities into 
a separate provision (final paragraph (b)(14)). The proposed rule 
addressed these platforms as part of proposed paragraph (b)(1), 
Unprotected sides and edges.
    Unprotected sides and edges. Final paragraph (b)(1), like the 
proposed rule, establishes fall protection requirements employers must 
follow to protect workers from falling off unprotected sides and edges 
of walking-working surfaces that are four feet or more above a lower 
level. The final rule defines ``unprotected sides and edges'' as any 
side or edge of a walking-working surface (except at entrances and 
other points of access) where there is no wall, guardrail system, or 
stair rail system to protect an employee from falling to a lower level 
(final Sec.  1910.21(b)).
    Final paragraph (b)(1)(i), similar to the construction fall 
protection standard (Sec.  1926.501(b)(1)), specifies that employers 
may use one or more of the following fall protection options to protect 
workers from fall hazards at unprotected sides and edges:
     Guardrail systems (final paragraph (b)(1)(i)(A));
     Safety net systems (final paragraph (b)(1)(i)(B));
     Personal fall protection systems, such as positioning, 
travel restraint, and personal fall arrest systems (final paragraph 
(b)(1)(i)(C)).
    Final paragraph (b)(1)(i) differs from the proposed rule in two 
ways. First, the final rule allows employers to use positioning 
systems, in addition to using personal fall arrest and travel restraint 
systems. Neither the proposed rule nor the construction fall protection 
rule (Sec.  1926.501(b)(1)) included positioning systems in the list of 
personal fall protection systems that employers may use. However, OSHA 
believes positioning systems are effective to protect workers from 
falling when they are working in a fixed location above a lower level. 
OSHA notes that some employers equip their workers with both systems, 
especially when the workers climb and work on fixed ladders. That is, 
employers provide personal fall arrest systems to protect workers 
during climbing and positioning systems to protect workers when they 
work while standing on the ladder.
    Second, as discussed, final paragraph (b)(1)(i) eliminates the use 
of ``designated areas'' to protect workers from fall hazards on any 
unprotected side or edge, which proposed paragraph (b)(1)(ii) would 
have allowed. As discussed, the use of designated areas is intended for 
a very few specific and limited situations rather than all unprotected 
sides or edges.
    General industry work on residential roofs. In final paragraph 
(b)(1)(ii), which was not in the proposed rule, OSHA adds a provision 
from the construction fall protection standard (Sec.  1926.501(b)(13)) 
that applies to construction on residential roofs. Final paragraph 
(b)(1)(ii) specifies that when employers can demonstrate it is 
infeasible or creates a greater hazard to use any type of conventional 
fall protection system (i.e., guardrail, safety net, or personal fall 
protection system) when working on a residential roof they must take 
specific alternative measures to eliminate or reduce fall hazards. 
Specifically, employers must develop and implement a written ``fall 
protection plan,'' including other control measures, and training that 
meet the requirements in the construction standard (29 CFR 1926.502(k) 
and Sec.  1926.503(a) and (c); STD 03-11-002 Compliance Guidance for 
Residential Construction (6/6/2011)).
    At the outset, and discussed in detail below, OSHA notes that many 
stakeholders, including NCSG, urged OSHA to add the construction fall 
protection plan requirements to the final rule (Exs. 149; 150; 240). 
These stakeholders, many of whom perform both general industry and 
construction activities, said making the final rule consistent with the 
construction standard would make it easier for them to protect workers 
performing both types of activities. In addition, stakeholders 
indicated the specific requirements of the fall protection plans give 
employers a clear blueprint for protecting their workers and achieving 
compliance when conventional fall protection is infeasible or creates a 
greater hazard.
    OSHA limits final paragraph (b)(1)(ii) to work employers perform on 
``residential roofs.'' OSHA's definition of ``residential roof'' 
incorporates the principles established in its Compliance Guidance for 
Residential Construction (STD 03-11-002 (6/6/2011)):

    The Agency's interpretation of ``residential construction'' for 
purposes of 1926.501(b)(13) combines two elements--both of which 
must be satisfied for a project to fall under that provision: (1) 
the end-use of the structure being built must be as a home, i.e., a 
dwelling; and (2) the structure being built must be constructed 
using traditional wood frame construction materials and methods 
(although the limited use of structural steel in a predominantly 
wood-framed home, such as a steel I-beam to help support wood 
framing, does not disqualify a structure from being considered 
residential construction). . . .

[[Page 82591]]

    Recently it has become more common to use metal studs for 
framing in residential construction rather than wood. . . . OSHA 
will consider it within the bounds of ``traditional wood frame 
construction materials and methods'' to use cold-formed sheet metal 
studs in framing.
    And finally, OSHA is aware that many homes and townhouses, 
especially in the southern and southwestern regions of the country, 
have usually been built using traditional wood frame construction 
throughout the structure except for the exterior walls, which are 
often built with masonry brick or block. . . . Because the same fall 
protection methods are likely to be used in the construction of 
homes built with wood framed and masonry brick or block exterior 
walls, the Agency has decided that it is consistent with the 
original purpose of 1926.501(b)(13) to treat the construction of 
residences with masonry brick or block in the exterior walls as 
residential construction.
    In accord with the discussion above, and for purposes of the 
interpretation of ``residential construction'' adopted herein, 
``traditional wood frame construction materials and methods'' will 
be characterized by:
    Framing materials: Wood (or equivalent cold-formed sheet metal 
stud) framing, not steel or concrete; wooden floor joists and roof 
structures.
    Exterior wall structure: Wood (or equivalent cold-formed sheet 
metal stud) framing or masonry brick or block.
    Methods: Traditional wood frame construction techniques.

    Consistent with the construction standard, final paragraph 
(b)(1)(ii) does not apply to nursing homes, hotels, and similar 
facilities, even though they are homes or dwellings. As OSHA explained 
in Compliance Guidance for Residential Construction:

    Construction of nursing homes, hotels, and similar facilities 
typically involves the use of the following materials in the 
framework of the structure: precast concrete, steel I-beams (beyond 
the limited use of steel I-beams in conjunction with wood framing, 
described above), rebar, and/or poured concrete. These materials are 
not used in traditional wood frame construction, and buildings 
constructed using these materials will not be considered 
``residential construction'' for purposes of Sec.  1926.501(b)(13) 
(STD 03-11-002 (6/6/2011).

    OSHA does not intend for final paragraph (b)(1)(ii) to apply to 
low-slope residential roofs. Employers performing work on low-slope 
residential roofs must comply with final Sec.  1910.28(b)(13), which 
requires the use of conventional fall protection in certain locations 
(within 6 feet of the roof edge) and allows employers to use designated 
areas further from the roof edge. OSHA does not believe these 
residential roofs pose the same types of hazards and potential 
feasibility issues as work performed on residential roofs that have a 
greater slope. OSHA notes that final paragraph (b)(1)(ii) applies to 
the vast majority of residential roofs because they do not meet the 
final rule's definition of low-slope roof: ``a roof having a slope less 
than or equal to 4 in 12 (vertical to horizontal)'' (Sec.  1910.21(b)).
    As mentioned, final paragraph (b)(1)(ii), like the construction 
standard, requires that employers use a fall protection plan but only 
where they demonstrate that all of the fall protection systems 
specified in final paragraph (b)(1)(i) are infeasible or present a 
greater hazard in a specific location on a residential roof. The final 
rule adopts the definition of ``infeasible'' in the construction fall 
protection standard, which states that ``infeasible'' means that it is 
impossible to perform the construction work using a conventional fall 
protection system (i.e., guardrails, safety net system, or personal 
fall arrest system) or that it is technologically impossible to use any 
one of those systems to provide fall protection (Sec.  1926.500(b)).
    To establish that an OSHA standard creates a greater hazard, an 
employer must prove, among other things, that the hazards of complying 
with the standard are greater than those of not complying, and no 
alternative means of employee protection are available (Bancker 
Construction Corp., v. Reich, 31 F.2d 32, 34 (2d Cir. 1994); Dole v. 
Williams Enterprises, Inc., 876 F.2d 186, 188 (D.C. Cir. 1989)). It is 
not enough for the employer to show that complying with a standard will 
create a new hazard. The Occupational Safety and Health Review 
Commission (the Commission) has held that the employer must establish 
that complying with a standard would be more dangerous than allowing 
employees to work without compliance (Secretary of Labor v. Spancrete 
Northeast, Inc., 16 O.S.H. Cas. (BNA) 1616, aff. 40 F.3d 1237 (2d Cir. 
1994)) (See further discussion of greater hazard vis-[agrave]-vis 
rolling stock and motor vehicles in the explanation of final Sec.  
1910.21). OSHA notes that employers must document in the fall 
protection plan the reasons for their determination of infeasibility or 
greater hazard (Sec.  1926.502(k)(5)).
    Final paragraph (b)(1)(ii), like the construction standard, 
includes a note specifying there is a presumption that using at least 
one of the fall protection systems final paragraph (b)(1)(i) specifies 
is feasible and will not create a greater hazard. The record includes 
information and examples of conventional fall protection controls that 
employers currently are using or are available for work on residential 
roofs (Exs. 150; 240; 347). For example, the NCSG acknowledged there 
are personal fall protection anchorages available that work on 
residential roofs (Ex. 150). Some of these systems have been available 
and in use since OSHA issued the construction fall protection standard 
in 1994 (59 FR 40694-95). Based on the rulemaking record, OSHA believes 
there is substantial evidence that employers can protect workers from 
falling with conventional fall protection systems in virtually all work 
operations performed on residential roofs. For example, NCSG indicates 
that it is feasible to use conventional fall protection in substantial 
and major installation and repair jobs. Thus, OSHA believes it is 
appropriate to include the note to underscore that employers have the 
burden to prove in the particular roof operation all of the controls in 
final paragraph (b)(1)(i) are infeasible or pose a greater hazard.\47\ 
If those criteria are satisfied, employers must implement:
---------------------------------------------------------------------------

    \47\ Employer claims that standards are infeasible or create a 
greater hazard are affirmative defenses that employers have the 
burden of proving in citation cases (OSHA Field Operation Manual, 
Chapter 5, Section VI).
---------------------------------------------------------------------------

     A written fall protection plan that meets the requirements 
of Sec.  1926.502(k), including implementing other control measures 
(Sec.  1926.502(k)(6) and (8)); and
     Training that meets the requirements of Sec.  1926.503(a) 
and (c).
    Section 1926.502(k) specifies that the employer's fall protection 
plan must:
     Be prepared by and have any changes approved by a 
``qualified'' person (Sec.  1926.502(k)(1) and (2)). The final rule 
defines qualified as a person who, by possession of a recognized 
degree, certificate, or professional standing, or who, by extensive 
knowledge, training, and experience has successfully demonstrated the 
ability to solve or resolve problems relating to the subject matter, 
the work, or the product (final Sec.  1910.21(b));
     Be developed specifically for the site where the employer 
will perform work on residential roofs (Sec.  1926.502(k)(1));
     Be maintained up to date (Sec.  1926.502(k)(1)), which 
OSHA said in the construction fall protection standard ``provides clear 
notice to employers that they have an ongoing responsibility'' to 
monitor conditions and address any changes or deficiencies (59 FR 
40718);
     Be maintained at the job site (Sec.  1926.502(k)(1) and 
(3)), which gives workers the opportunity to inspect the fall 
protection plan and provides them with needed reassurance that the 
employer is taking appropriate measures to reduce or eliminate exposure 
to fall hazards when conventional fall

[[Page 82592]]

protection cannot be used (59 FR 40719);
     Be implemented under the supervision of a ``competent 
person'' (Sec.  1926.502(k)(4)). The construction standard defines 
competent person as a person who is capable of identifying existing and 
predictable hazards in the surrounding or working conditions which are 
unsanitary, hazardous, or dangerous to employees, and who has 
authorization to take prompt corrective measures to eliminate them 
(Sec.  1926.32(f));
     Identify each location where conventional fall protection 
cannot be used and document the reasons why the use of conventional 
fall protection systems is infeasible or would create a greater hazard 
(Sec.  1926.502(k)(5) and (7)).\48\ OSHA explained in the preamble to 
the construction fall protection standard that requiring employers to 
make a close examination helps to ensure their decision is justified 
and has an objective basis (59 FR 40719). A closer examination also 
ensures that employers have not overlooked locations or operations 
where conventional fall protection can be used (59 FR 40719);
---------------------------------------------------------------------------

    \48\ OSHA notes that the construction fall protection standard 
requires employers to classify each location in which conventional 
fall protection cannot be used as a ``controlled access zone'' and 
follow the requirements for controlled access zones in Sec.  
1926.502(g) (Sec.  1926.502(k)(7)). Unlike the construction fall 
protection standard, the general industry final rule does not permit 
the use of controlled access zones. Therefore, the final rule does 
not require employers to comply with the controlled access zones 
requirements in Sec.  1926.502(k)(7), such as erecting a flagged 
control line around the entire length of the unprotected edge, in 
locations where the employer has demonstrated that conventional fall 
protection cannot be used.
---------------------------------------------------------------------------

     Discuss other measures that the employer will take to 
eliminate or reduce the fall hazard for workers where conventional fall 
protection is infeasible or creates a greater hazard (Sec.  
1926.502(k)(6));
     Implement control measures to reduce or eliminate hazards 
or implement a safety monitoring system that complies with Sec.  
1926.502(h) (Sec.  1926.502(k)(8));
     State the name or other method of identification for each 
worker who works in a location where a fall protection plan is 
implemented (Sec.  1926.502(k)(9)); and
     Investigate the circumstances of any fall or other serious 
incident that occurs to determine whether the employer needs to change 
the fall protection plan and implement those changes (Sec.  
1926.502(k)(10)).
    In the preamble to the construction fall protection standard, OSHA 
said the fall protection plan requirements gives employers a ``clear 
direction'' about what they must do and how they must proceed if 
conventional fall protection cannot be used (59 FR 40718). Requiring 
employers to comply with all of the requirements of the fall protection 
plan, including implementing other control measures, reflects the 
Agency's position that any deviation from the general requirements for 
fall protection must be construed as narrowly as possible'' (59 FR 
40720). OSHA believes that requiring employers to strictly comply with 
all of the requirements in Sec.  1926.502(k) when conventional fall 
protection is not feasible or creates a greater hazard ``will provide 
the best opportunity to avert employee injury and death'' (59 FR 
40718).
    The construction fall protection standard requires that employers 
develop and implement a fall protection plan for the specific site 
where they are performing work on a residential roof (Sec.  
1926.502(k)(1)). OSHA notes that a fall protection plan an employer 
develops for repetitive use for a particular style or model of a 
residential structure will be considered site-specific for other sites, 
but only if the plan ``fully addresses all issues related to fall 
protection at that particular site'' (STD 02-11-002). For example, 
chimney sweep companies may use a fall protection plan they develop for 
a particular type of residential roof (e.g., tile, metal) for other 
roofs of that type rather than developing a new plan for each 
residence. Additionally, where a roof is similar to others for which 
the employer has a fall protection plan, the employer may modify an 
existing plan instead of developing a new one. However, where the roofs 
are not the same type or involve different specifications or working 
conditions, employers must develop and implement a fall protection plan 
that is specific to the site.
    OSHA stresses that after employers have identified where and why 
conventional fall protection cannot be used (Sec.  1926.502(k)(5)), it 
will not be acceptable for employers' fall protection plans to simply 
state that they will not be implementing any measures to reduce or 
eliminate the fall hazard in those locations. Employers must implement 
other measures to reduce or eliminate fall hazards for workers in those 
locations (Sec.  1926.502(k)(6)). The construction fall protection 
standard identifies a number of measures employers can use to reduce 
fall hazards when conventional fall protection cannot be used, such as 
scaffolds, ladders, bucket trucks, and vehicle mounted platforms (Sec.  
1926.502(k)(6)). To reduce the risk of falls in ``ladder to roof 
transitions,'' which NCSG said was ``one of the highest hazards,'' 
employers can use equipment (e.g., quivers, backpacks, rope pull) to 
lift materials and tools instead of carrying them up on ladders. Other 
measures include safe work practices (e.g., workers positioning 
themselves so their backs are not to the fall hazard, not working in 
adverse weather), safety screens (59 FR 40720), scaffold platforms (Ex. 
150), and fall hazard training specific to residential roofs.
    Stakeholders who recommended adding the fall protection plan 
provision to the final rule, indicate that they are using the measures 
identified above (Exs. 150; 342). NCSG, for example, said they use 
scaffolds and bucket trucks for some chimney sweep operations, 
particularly significant and major repairs and installations that may 
takes days to a week to complete (Ex. 329 (1/18/2011), pgs. 268-69, 
278-80). Chimney sweep companies also work from ladders where possible 
because, according to NCSG, doing so reduces the fall hazards 
associated with transitioning from the ladder to the roof (Ex. 150).
    Where no other measures can be implemented, the construction fall 
protection standard requires that employers implement a safety 
monitoring system that complies with Sec.  1926.502(h). In the preamble 
to the construction fall protection standard, OSHA indicated that using 
safety monitoring system is a last resort ``when no other, more 
protective measures can be implemented'' (59 FR 40719-20 (``OSHA has 
determined that the employer must do what it can to minimize exposure 
to fall hazards before turning to the use of safety monitoring 
systems'')).
    Section 1926.502(h)(1) requires that safety monitoring systems must 
designate a competent person to be the safety monitor for employees 
working in areas where no other fall protection measures are used. 
Section 1926.502(h)(1) also specifies, among other things, that safety 
monitors must be on the same walking-working surface be within visual 
sight of workers, close enough to orally communicate with the workers 
they are monitoring, and not have any other responsibilities that could 
take their attention away from the workers they are monitoring. In 
addition, safety monitors must warn workers when it appears that the 
workers are not aware of fall hazard or are acting in an unsafe manner.
    OSHA believes that many employers will not use safety monitoring 
systems as alternate control measures because

[[Page 82593]]

they assign one-worker jobs and a safety monitoring system requires at 
least two workers at each work location. NCSG said, for instance, that 
one-person jobs constitute the majority of their work (Ex. 150).
    In addition to implementing other measures to eliminate or reduce 
worker exposure to fall hazards, final paragraph (b)(1)(ii) also 
requires that employers using fall protection plans must develop and 
implement a training program and retraining for each employee who works 
in a location where conventional fall protection cannot be used. The 
training must meet the requirements in Sec.  1926.503(a) and (c). 
Section 1926.503(a) requires that employers ensure, among other things, 
their fall protection plan training program ``enables each employee to 
recognize the hazards of falling and . . . train each employee in the 
procedures to be followed in order to minimize the hazards'' (Sec.  
1926.503(a)(1)). The retraining requirements in Sec.  1926.503(c) are 
essentially the same at those in final Sec.  1910.30(c).
    As stated above, OSHA believes, based on the rulemaking record and 
the Agency's experience with the construction fall protection standard, 
that in most, if not virtually all, jobs performed on residential roofs 
employers can protect workers from falls by using conventional fall 
protection systems (i.e., guardrail systems, safety net systems, 
personal fall protection systems). That said, OSHA has decided to add 
paragraph (b)(1)(ii) to the final rule for two reasons: (1) To make the 
final rule consistent with the construction fall protection standard, 
which is one of the stated goals of this rulemaking, and (2) to address 
stakeholder concerns about the feasibility of conventional fall 
protection in certain residential roof operations.
    Allowing employers who perform both general industry and 
construction activities to follow the same standard makes it easier and 
more efficient for employers to safely perform both types of 
activities, and thereby, facilitates compliance and reduces potential 
for confusion about which standards apply to a particular operation.
    Throughout this rulemaking, stakeholders have repeatedly urged OSHA 
to harmonize the general industry and construction fall protection 
standards, particularly with respect to the fall protection plan 
requirements in the construction standard (Exs. 124; 149; 150; 240; 329 
(1/18/2011, p. 279); 342; 365). For example, SBA Office of Advocacy 
said small business representatives (SERs) who attended a roundtable 
discussion on the proposed rule, recommended that ``OSHA should further 
synchronize the proposed general industry rule with the existing 
construction standard'' (Ex. 124). According to SBA Office of Advocacy, 
SERs expressed concern that ``[t]wo employees could be working side by 
side on similar tasks, but one could be covered by the general industry 
standard and the other by the construction standard'' (Ex. 124). SBA 
Office of Advocacy added that SERs were confused about ``the difference 
between maintenance and repair (general industry) and construction 
activities'' and ``which standards applied under what circumstances'' 
(Ex. 124). To illustrate, NCSG said it can be difficult to figure out 
whether certain chimney sweeps operations (e.g., replacing chimney 
caps, repairing roof flashing) are maintenance (general industry) or 
construction activities. OSHA believes that making the general industry 
and construction fall protection standards consistent resolves those 
concerns.
    OSHA notes the construction fall protection plan requirements have 
been in place since 1994, therefore, general industry employers who 
perform construction activities (e.g., chimney sweep companies) have 
significant experience developing and implementing fall protection 
plans, other control measures, and training in jobs where conventional 
fall protection cannot be used. OSHA has not received any reports that 
these employers have experienced difficulty complying with the fall 
protection plans requirements in the construction standard. Rather, 
these stakeholders repeatedly urged OSHA to allow them to implement 
fall protection plans when they satisfy the criteria in final paragraph 
(b)(1)(ii) regardless of whether the activity is general industry or 
construction.
    OSHA also is adopting final paragraph (b)(1)(ii) to address the 
concerns stakeholders raised (e.g., Exs. 149; 150; 240). NCSG, for 
instance, commented that using conventional fall protection systems on 
residential roofs is ``technologically and/or economically infeasible'' 
``for the great majority of tasks performed by [chimney] sweeps'' and 
``threatens both the continuing viability of the industry and the 
availability of chimney inspection, sweeping, and repair services at 
affordable prices'' (Ex. 150).
    NCSG and the National Association of Home Builders (NAHB) both 
argued that it is not possible to use conventional fall protection 
systems on residential roofs because there are not suitable attachment 
or anchorage points and it is not possible to install them (Exs. 149; 
150; 342). For instance, NAHB said it is not possible to penetrate tile 
or metal roofs to secure an anchor (Ex. 149). In addition, NAHB and 
NCSG said homeowners would not permit contractors to nail anchorages 
into the roof or install guardrails because of concern that such 
installation would cause damage.
    OSHA notes that NCSG's own materials suggest some flexibility in 
the use of nails in particular. In their ``successful chimney sweep 
training'' booklet, NCSG recommends securing ladders by ``driv[ing] a 
nail into the roof and secur[ing] the ladder with rope. If you choose 
this method, remember to remove the nail and to seal the hole before 
leaving the rooftop'' (Ex. 342). NCSG offers no explanation as to why 
homeowners would allow ladders to be secured to the roof with nails but 
not roof anchorages. In addition, CSG and ISEA said temporary roof 
anchors can be mounted to common roof structural materials by clamps or 
screws, which would not damage the roof (Exs. 185; 198).
    OSHA recognizes that, where homeowners will not allow employers to 
install temporary or permanent anchors or other fall protection (e.g., 
guardrails) and all other conventional fall protection systems are 
infeasible, implementing a fall protection plan, other measures to 
eliminate or reduce fall hazards, and training ``will provide the best 
opportunity to avert employee injury and death'' (59 FR 40718). That 
said, OSHA notes that attaching personal fall protection systems to a 
roof anchorage may not be the only available method of anchoring those 
systems. However, to the extent other types of anchors or attachment 
devices are or become available, employers would have to demonstrate 
that those devices are infeasible in order to satisfy the criteria in 
final paragraph (b)(1)(ii).
    As mentioned, stakeholders, including NCSG, have argued they should 
be allowed to use fall protection plans and other control measures 
where they demonstrate conventional fall protection would create a 
greater hazard. NCSG said requiring the use of conventional fall 
protection would result in extended exposure to fall hazards, and 
thereby create a greater hazard, because it may take longer to install 
and remove fall protection (e.g., roof anchors for personal fall 
protection) than to perform the work. NCSG said chimney cleaning and 
inspection involves accessing the roof for only 5 to 20 minutes and 
minor repairs (e.g., replacing a chimney cap, minor flashing repair) 
typically requires the chimney

[[Page 82594]]

sweep to work on the roof for 20 minutes to 2 hours (Ex. 150). By 
contrast, they said installing anchors would take 45 to 90 minutes (Ex. 
150). However, Tom Wolner, of CSG, said that employers can install 
temporary nail-on roof anchors in ``probably less than 10 minutes'' 
(Ex. 329 (1/18/2011, p. 107)).
    Stakeholders also said requiring the use of conventional fall 
protection in residential rooftop operations would create a greater 
hazard because workers would have to carry extra equipment to the roof, 
which they said would ``increase the number of ground to roof trips'' 
(Ex. 150). NCSG pointed out that chimney cleaning and inspection 
typically is done in one climb; however, they also acknowledged that 
fall protection can be brought to the roof during the initial climb and 
even minor repairs and installations can involve multiple climbs (Ex. 
150). As the examples above illustrate, rooftop work varies widely in 
the duration and climbs. Employers will have to demonstrate that using 
conventional fall protection in the specific operation makes it more 
dangerous for workers than working without that protection.
    Some commenters opposed allowing any exemptions from using 
conventional fall protection systems (Exs. 185; 198; 329 (1/18/2001), 
pgs. 82-83, 107). For example, Tom Wolner, of CSG, said:

    Certain segments within general industry have requested that 
OSHA provide broad exemptions from proposed fall protection 
regulations, by citing things such as hardships that the use of fall 
protection would create, safe work histories or feasibility 
concerns. Capital Safety is opposed to granting such general 
exemptions within the regulation. It is our opinion that it is 
feasible and practical to provide workers with active or passive 
means of fall protection in nearly every work situation. A variety 
of all fall protection equipment available today, combined with our 
ability and the ability of others like us within the fall protection 
industry to customize or tailor fall protection equipment to 
specific needs often eliminates the need for exemptions (Ex. 329 (1/
18/2011, pgs. 82-83)).

    OSHA agrees with Mr. Wolner that it is feasible for employers to 
provide workers with conventional fall protection systems in ``nearly 
every work situation.'' However, OSHA does not agree with Mr. Wolner 
that final paragraph (b)(1)(ii) is an overly broad exemption or 
unprecedented. In enforcement action, employers always are permitted to 
raise affirmative defenses, such as a claim that the required controls 
are not feasible or pose a greater hazard.
    Final paragraph (b)(1)(iii), similar to proposed paragraph 
(b)(1)(vi), excepts employers from providing the fall protection 
specified in final paragraph (b)(1)(i) when employers can demonstrate 
that it is not feasible for workers to use fall protection on the 
working side of platforms used at loading racks, loading docks, and 
teeming platforms. The ``working side'' is the side of the platform 
where workers are in the process of performing a work operation. The 
final rule, similar to the proposed rule, specifies that the working 
side exception to providing fall protection only applies when the 
employer demonstrates infeasibility and:
     The work operation for which fall protection is infeasible 
is in process (final paragraph (b)(1)(iii)(A));
     The employer limits access to the platform to 
``authorized'' workers (final paragraph (b)(1)(iii)(B)), which the 
final rule defines as a worker who the employer assigns to perform a 
specific type of duty, or allows to be in a specific location or area 
(final Sec.  1910.21(b)); and
     The employer trains authorized workers in accordance with 
final Sec.  1910.30 (final paragraph (b)(1)(iii)(C)). Section 1910.30 
requires, among other things, that employers train workers, including 
authorized workers, to recognize fall hazards and the procedures to 
follow to minimize them.
    OSHA notes that, in limited cases, it may not be possible for 
workers to perform work operations if fall protection, such as 
guardrails, interferes with access to the work operation. However, as 
the final rule specifies, the issue of blocking access to the work 
operation is a concern only when workers are in the process of 
performing the work operation. As a result, fall protection, such as 
guardrails, must be in place or used when workers are not performing a 
work operation on the working side of a platform. OSHA believes that 
fall protection does not interfere with performing tasks such as 
maintenance, cleaning, and similar tasks; therefore, when workers are 
performing these tasks, employers must provide fall protection.
    Final paragraph (b)(1)(iii) differs from the proposal in two 
respects. First, the final rule deletes the proposed exception for the 
``working side'' of slaughtering facility platforms (proposed paragraph 
(b)(1)(iv)). Based on evidence in the record, OSHA decided to regulate 
those platforms separately in final paragraph (b)(14).
    Second, the exception in the final rule only applies when the 
employer demonstrates that no fall protection system is feasible. The 
proposed rule applied the exception when the employer demonstrates 
guardrail systems are not feasible (proposed paragraph (b)(1)(vi)). 
Therefore, to the extent fall protection systems other than guardrails 
are feasible, such as travel restraint or personal fall arrest systems, 
the employer would have to provide those systems and the exception 
would not apply.
    Stacked materials. In the proposed rule, OSHA raised an issue about 
whether there is a need to promulgate specific requirements to address 
the use of fall protection when employees work and climb four feet or 
more above a lower level on stacked materials, such as stacks of steel 
and precast concrete products that are being stored or loaded onto 
motor vehicles and rail cars for transport (75 FR 28868). OSHA noted in 
the proposed rule that the Agency uses Sec.  1910.23, Sec.  1910.132 
and the general duty clause (29 U.S.C. 654(a)(1)) to protect workers 
who climb and stand on stacked materials from falling (75 FR 28868).
    By 2004, the American Iron and Steel Institute (AISI) and Precast/
Prestressed Concrete Institute (PCI) had raised the issue of fall 
protection on stacked materials (75 FR 28868; Exs. 5; 41). In general, 
they both said using fall protection, such as ``guardrails or tie-off 
protection,'' on stacked materials was infeasible or creates a greater 
hazard (75 FR 28868). AISI said workers at steel and steel product 
companies ``need to stand on `stacks' of product that have a large 
surface area in order to rig bundles for crane lifts and similar 
activities'' or ``[load] products onto truck trailers and railcars'' 
(Ex. 5, AISI's comments on the Office of Management and Budget ``Draft 
Report to Congress on the Costs and Benefits of Federal Regulations''). 
They characterized the solutions OSHA recommended to protect those 
workers (i.e., guardrails around stacked materials, magnet cranes, and 
safety lines around vehicle trailers and rail cars) as ``not feasible'' 
and ones that could ``create its own serious safety hazard.'' For 
example, AISI said safety lines would interfere with movement of the 
product and magnet cranes cannot connect to single bundles.
    PCI, in a January 3, 2000, letter requesting an exception from 
existing fall protection requirements for loading/unloading precast 
concrete products on motor vehicles and for stacking, storing, and 
loading/unloading precast concrete products in the plant, said workers 
need to access the top of concrete products for only ``very short 
periods of time'' to connect/disconnect lifting devices or rigging (Ex. 
41). They said installing a fall protection system, by contrast, would 
expose employees to fall hazards for ``an extended period of time'' 
and,

[[Page 82595]]

therefore, poses a greater hazard (Ex. 41). PCI also pointed out that 
the OSHA construction fall protection standard does not require that 
workers use fall protection when unloading precast concrete at 
construction sites (Ex. 41).\49\
---------------------------------------------------------------------------

    \49\ OSHA notes that the definition of ``walking-working 
surface'' in the construction fall protection standard does not 
include rolling stock and motor vehicles (29 CFR 1926.500(b)).
---------------------------------------------------------------------------

    AISI and PCI recommended that OSHA allow employers to use 
alternative measures, such as safe work practices and training, 
including a ``mentor system hands-on process for training'' (Exs. 5; 
41). AISI said OSHA should require guardrails or tie-off protection 
only ``where practical'' and be permitted to use an ``alternative 
practice'' and provide training where it is not (Ex. 5). However, AISI 
did not identify any alternative practices that would provide adequate 
protection for employees working on stacked materials. PCI said 
employers should be allowed to provide ``individual instruction as well 
as have a mentor system hands on training process'' instead using fall 
protection systems on stacked materials (Ex. 41). PCI also recommended 
that employees perform ``corrective and detail work'' at the ground 
level or from a ladder or mobile-elevating work platform instead of on 
the stacked materials.
    OSHA received a number of comments in response to the proposed 
rule, most of which supported requiring the use of fall protection on 
stacked materials (Exs. 127; 155; 161; 185; 198; 205; 238). For 
example, ASSE stated:

    ASSE cannot agree with ``some commentators (who) have 
recommended that OSHA allow the use of safe work practices by 
trained employees in lieu of conventional fall protection for 
certain activities,'' . . . . If employers are going to ask 
employees to climb on stacked materials where there are fall hazards 
and, typically, exposure to falls off the sides to lower levels, 
employers have the duty to warn, train and protect workers from 
falls. In our members' experience, this is not infeasible or 
unreasonable to ask (Ex. 127).

    The Society of Professional Rope Access Technicians (SPRAT) said 
``the prevalence of incidents that have occurred in these situations'' 
warrants a requirement to use ``fall protection of some sort'' on 
stacked materials (Ex. 205). SPRAT recommended allowing employers to 
use industrial rope access systems (IRAS) to protect employees because 
they said it would mitigate any difficulty or impossibility of using 
``measures previously recognized by OSHA as being `conventional' '' 
(Ex. 205). SPRAT further recommended:

    [I]f OSHA's language toward protection against falls were less 
method-specific and more results-oriented, competent and qualified 
persons would have greater latitude in creating protective systems 
that would be very protective without having to use a proscribed 
method. OSHA would be well-advised to permit use of such systems so 
long as they are approved by a Qualified Person, created by a 
Competent Person, and appropriate training [is] provided to the 
Authorized Person (Ex. 205).

    OSHA did not propose to cover IRAS and the final rule clarifies 
that IRAS are not rope descent systems (Sec.  1910.21(b)). Given that, 
OSHA is not adopting SPRAT's recommendations.
    Several commenters said fall protection systems to protect 
employees working on stacked materials are feasible and currently in 
use in general industry (Exs. 155; 185; 198). For instance, ISEA and 
CSG said fall protection manufacturers have developed and are supplying 
employers with such systems, including ``trailer-mounted systems, A-
frames, rope grab systems, and ropes at tie-off points'' (Exs. 185; 
198). They added that manufacturers also create custom fall protection 
systems (Exs. 185; 198). Ellis Fall Safety Solutions (Ellis) said that 
temporary and permanent wheeled and fork[hyphen]lifted devices with 
railed personal fall protection anchorages are available for loading/
unloading operations and should be required for stacked materials (Ex. 
155; see also 148; 158; 198; 355-2). Ellis also pointed out that these 
systems can provide fall protection over a large surface area (i.e., 
``up to 30 ft.'') (Ex. 155).
    PCI and the International Sign Association (ISA), in response to 
the proposed rule, submitted comments opposing any requirement for fall 
protection on stacked materials (Exs. 161; 238). PCI said in the 14 
years since their request for an exception from the existing fall 
protection requirements they had ``not learned of any system or 
device'' that would change their position that requiring the use of 
fall protection on stacked materials is infeasible and would create a 
greater hazard (Ex. 238).
    ISA, like PCI and AISI, argued that it is infeasible to require the 
use of fall protection on stacked cargo and motor vehicles (Ex. 161). 
In particular, ISA said permanent attachment of fall protection 
equipment to motor vehicles is not feasible because the area of the 
truck bed normally available for walking or working is usually quite 
small and such equipment would interfere with the utility of trucks as 
cargo-carrying vehicles. Like PCI and AISI, ISA also recommended that 
OSHA ``should provide flexibility for employers in terms of 
implementing alternative practices, appropriate training, or both'' 
(Ex. 161).
    ISA also appeared to suggest that installing fall protection for 
employees working on stacked materials would create a greater hazard. 
ISA said employees stand or work on stacked materials only 
``occasionally'' and ``temporarily'' to perform operations that ``are 
strictly associated with rigging of cargo items for hoisting,'' 
implying that rigging stacked cargo only exposes employees to fall 
hazards for a very brief period of time compared to the time necessary 
to install fall protection systems (Ex. 161).
    After reviewing the rulemaking record, OSHA does not agree that 
requiring fall protection on stacked materials is infeasible or could 
create a greater hazard. OSHA finds there is substantial evidence 
showing that a number of fall protection systems for stacked materials 
are available and already are in use in general industry (Exs. 155; 
185; 198). For example, commenters said wheeled, trailer-mounted and 
fork-lifted overhead anchor and retractable line systems are available 
and in use to protect employees working on stacked materials (Exs. 155; 
185; 198. See also, e.g., Exs. 148; 158; 355-2; OSHA-S029-2006-0662-
0373). These stand-alone systems can be used for stacking, storing, and 
loading/unloading stacked materials in open yards and plants as well as 
for loading/unloading stacked materials on rolling stock and motor 
vehicles (e.g., Ex. 355-2). In addition, the record shows that other 
fall protection systems employers use for loading/unloading stacked 
cargo on rolling stock and motor vehicles also work for materials that 
are stacked or stored in yards or plants. These systems include mobile 
work platforms, scissor lifts and stairs equipped with railings/
guardrails that allow workers to access stacked materials without 
standing on them (e.g., Exs. 63; 124; 169; 181; 335; OSHA-S029-2006-
0662-0208; OSHA-S029-2006-0662-0227; OSHA-S029-2006-0662-0350; OSHA-
S029-2006-0662-0373).
    Finally, OSHA also concludes that the final rule does not need to 
include specific or separate requirements addressing stacked materials. 
OSHA believe that final Sec.  1910.28(b)(1) (Unprotected sides and 
edges) and (b)(15) (Walking-working surfaces not otherwise addressed) 
adequately address fall protection on stacked materials.
    Hoist areas. Final paragraph (b)(2), like the proposed rule, 
establishes fall

[[Page 82596]]

protection requirements for workers who work in hoist areas that are 
four feet or more above a lower level. The final rule defines a ``hoist 
area'' as an elevated access opening to a walking-working surface 
through which equipment or materials are loaded or received (final 
Sec.  1910.21(b)).
    Final paragraph (b)(2)(i) requires employers to protect workers in 
hoist areas from falls by:
     Guardrail systems (final paragraph (b)(2)(i)(A));
     Personal fall arrest systems (final paragraph 
(b)(2)(i)(B)); or
     Travel restraint systems (final paragraph (b)(2)(i)(C)).
    The construction fall protection standard includes a similar 
provision requiring that employers provide guardrail or personal fall 
arrest systems to protect workers in hoist areas that are six feet or 
more above a lower level (Sec.  1926.501(b)(3)). This final rule 
provides greater control flexibility than the construction standard 
because it also allows employers to provide travel restraint systems to 
protect workers. OSHA received no comments on the proposed provision 
and it is finalized as discussed.
    Final paragraph (b)(2)(ii), like the proposed and construction 
rules (Sec.  1926.501(b)(3)), requires that, if removing any portion of 
a guardrail system, gate, or chains and if the worker leans through or 
over the edge of the access opening to facilitate hoisting, the 
employer must protect the worker from falling by a personal fall arrest 
system. The proposed rule required that employers provide ``grab 
handles'' on each side of a hoist area opening, in addition to a 
personal fall arrest system, if removing the guardrail, gate, or chains 
and if the worker leans out the access opening. The existing rule does 
not have a specific provision addressing hoist areas. However, the 
existing provisions on wall openings and holes requires that both sides 
of openings and holes have grab handles if the rail, half door, or 
other equivalent barrier is removed (existing Sec.  1910.23(b)(1)). In 
addition, where the structure has extension platforms onto which 
employers may place hoisted materials, the existing rule requires that 
employers provide side rails or equivalent guards to protect workers 
(existing Sec.  1910.23(b)(ii)). OSHA notes that it adopted the 
existing rule in 1971, before personal fall arrest systems were widely 
available.
    OSHA only received one comment on the proposed provision. Ameren 
recommended that OSHA define what would qualify as a grab handle to 
ensure the final rule does not result in confusion or misinterpretation 
(Ex. 189). After further consideration, OSHA believes it is not 
necessary for employers to provide grab handles in addition to personal 
fall arrest systems if removing guardrails, gates, or chains and if 
workers look through or over the edge of an access opening to 
facilitate hoisting. OSHA believes that personal fall arrest systems 
provide adequate worker protection, and better protection than grab 
handles, therefore, OSHA does not carry forward the proposed 
requirement on grab handles. Of course, employers are free to provide 
grab handles or other handholds in addition to personal fall arrest 
systems in those situations. OSHA believes that the revisions in the 
final rule address Ameren's concern and the provision is finalized as 
discussed.
    Final paragraph (b)(2)(iii), specifies that if grab handles are 
installed at hoist areas, they must meet the requirements of Sec.  
1910.29(l). Employers are not required to install grab handles at hoist 
areas; however, if they do install grab handles, the handles must meet 
the criteria specified in Sec.  1910.29(l). Although OSHA believes it 
is not necessary to install grab handles at hoist areas when workers 
use a personal fall arrest system, the Agency recognizes grab handles 
can provide some security when workers must lean out from a hoist area. 
In those cases, OSHA believes it is important for grab handles to be of 
a certain size, have sufficient clearance, and be capable of 
withstanding the forces placed on them.
    Holes. Final paragraph (b)(3) consolidates the proposed 
requirements to protect workers from falls associated with holes 
(proposed paragraph (b)(3)) and floor holes (proposed paragraph 
(b)(14)), and requires that employers protect workers from falling into 
or through any hole, including skylights, stairway floor holes, 
ladderway floor holes, hatchway and chute-floor holes, and other holes 
on roofs. The final rule defines a ``hole'' as a gap or open space in a 
floor, roof, horizontal walking-working surface, or other similar 
surface that is at least 2 inches in its least dimension (final Sec.  
1910.21(b)). Although skylights may be covered by screens or other 
material, for the purposes of this definition and the final rule, OSHA 
classifies skylights as holes. Falling into a hole or tripping and 
possibly falling due to a hole in a walking-working surface may injure 
or kill a worker.
    OSHA believes that consolidating the requirements for protecting 
workers from falling into or tripping on a hole is appropriate because 
the hazards generally associated with these conditions, and the methods 
to address these hazards, are the same. Moreover, consolidating the 
provisions makes the final rule easier to understand and follow, which 
will enhance employer compliance.
    In the final rule, OSHA moved the proposed requirement (proposed 
paragraph (b)(3)(iii)) to protect workers on walking-working surfaces 
from being hit by objects falling through overhead holes to final 
paragraph (c), Protection from falling objects. The final rule 
consolidates all requirements addressing falling object hazards in 
final paragraph (c).
    OSHA received one general comment on the proposed requirements to 
protect workers from falling or stepping into, or tripping on, holes. 
Ellis Fall Safety Solutions (Ellis) said the final rule should require 
that employers not leave holes exposed or uncovered for more than two 
minutes and assign a ``standby person'' to be present to warn workers 
about the hole until employers cover or barricade the hole (Ex. 155). 
Ellis also said the final rule should require that employers use two 
means to protect employers from falling into holes as a way ``to 
safeguard the next trade or planned work'' (Ex. 155). For example, 
Ellis suggested that employers cover the hole with a plywood board as 
the primary means of protection and, as the secondary protection, 
attach a net to a bar joist underneath the hole using a scissor lift. 
OSHA believes the final rule provides a reasonable and appropriate 
level of protection. Any of the fall protection systems specified by 
the final rule will protect workers from falling, tripping, or stepping 
into holes. OSHA believes the final rule already ensures the ``next 
trade'' is safeguarded from holes. The final rule requires that all 
employers in any trade must conduct inspections of walking-working 
surfaces and maintain those surfaces in a safe condition before 
allowing workers to work there (final Sec.  1910.22(d)(1)). OSHA notes 
that employers are free to use more than one measure to protect workers 
from hazards associated with holes.
    Final paragraph (b)(3)(i) requires that employers ensure workers 
are protected from falling through any hole (including skylights) that 
is four feet or more above a lower level using one or more of the 
following:
     A cover over the hole (paragraph (b)(3)(i)(A));
     A guardrail system around the hole (paragraph 
(b)(3)(i)(B));
     A travel restraint system (paragraph (b)(3)(i)(C)); or
     A personal fall arrest system (paragraph (b)(3)(i)(D)).
    Final paragraph (b)(3)(i) is the same as the proposed rule, and 
provides greater

[[Page 82597]]

control flexibility than the existing general industry and construction 
fall protection rules (existing Sec.  1910.23(a)(4), (8), and (9), and 
Sec.  1926.501(b)(4)). The existing general industry rule only allows 
employers to guard holes using standard railings (guardrails) or, in 
some situations, a cover. The construction rule does not include travel 
restraint systems as a fall protection option to protect workers from 
falling into holes (Sec.  1926.501(b)(4)(i)).
    Final paragraph (b)(3)(ii) requires that employers ensure workers 
are protected from tripping into or stepping into or through any hole 
that is less than four feet above a lower level by covers or guardrail 
systems. The final rule differs from the proposal in two ways. First, 
final paragraph (b)(3)(ii) clarifies that OSHA intended that the 
proposed requirement only applied to holes that are less than four feet 
above a lower level. Where a hole is four feet or more above a lower 
level, the requirements in final paragraph (b)(3)(i) apply and ensure 
that workers do not step or trip into the hole or fall into it. Second, 
final paragraph (b)(3)(ii) provides greater control flexibility than 
the proposal and the construction fall protection standard because it 
adds guardrail systems as an alternative option employers may use to 
protect workers from tripping or stepping into holes. Proposed 
paragraph (b)(3)(ii) and the construction standard (Sec.  
1926.501(b)(4)(ii)) only permit employers to use covers to prevent 
stepping or tripping into holes.
    Final paragraph (b)(3)(iii), like the existing standard (Sec.  
1910.23(a)(1)) and the proposed rule (proposed paragraph (b)(14)(i)), 
requires that employers ensure workers are protected from falling into 
stairway floor holes by a fixed guardrail system erected on all exposed 
sides, except at the stairway entrance. The final rule also carries 
forward, with revisions, the existing and proposed exception for 
stairways when (1) used less than once a day and (2) traffic across the 
opening prevents the use of a fixed guardrail system (e.g., stairway 
floor hole located in store aisle). In that situation, employers may 
protect workers from falling using a hinged floor-hole cover that meets 
the criteria in Sec.  1910.29 plus a removable guardrail system on all 
exposed sides except the stairway entrance. The exception in the final 
rule is consistent with ANSI/ASSE A1264.1-2007, Safety Requirements for 
Workplace Walking/Working Surfaces and Their Access; Workplace, Floor, 
Wall and Roof Openings; Stairs and Guardrails Systems (ANSI/ASSE 
A1264.1-2007).
    OSHA also clarifies the ``infrequently used'' language in the 
existing exception by incorporating the language in a note in the 
proposed rule stating that ``infrequently used'' means using the 
stairways ``on less than a daily basis.'' The exception in the final 
rule also clarifies the language in the existing and proposed rules 
requiring that the hinged floor-hole cover be of ``standard strength 
and construction'' by specifying that the cover must meet the criteria 
in final Sec.  1910.29, specifically Sec.  1910.29(e). OSHA believes 
the language in the final rule will make the rule easier for employers 
to understand and follow. For example, requiring that the hinged floor-
hole cover meet the requirements in Sec.  1910.29 ensures that they 
will support, without failure, at least twice the maximum intended load 
that may be imposed on the cover (final Sec.  1910.29(e)(1)). This is 
important because a hinged floor-hole cover, like all covers, need an 
adequate margin of safety to ensure they are capable of supporting 
intended loads, and to account for the possibility of unforeseen 
traffic across the cover.
    In addressing stairways used less than once a day, OSHA requested 
information and comment in the proposed rule on using automatically 
rising railings that come into position when a load-bearing hinged 
floor-hole cover opens (75 FR 28892). Explanatory paragraph E3.1 in 
ANSI/ASSE A1264.1-2007 states that the removable guardrail system 
required for infrequently used stairways should be ``hinged or 
otherwise mounted so as to come into position automatically with the 
opening of the [hinged floor-hole] cover.'' Ameren commented, ``As long 
as the automatic rising railings are an option and not the only method 
of protection this provision would be feasible'' (Ex. 189). OSHA did 
not receive any comments supporting making automatically rising 
guardrails mandatory, and the final rule does not include such a 
requirement.
    Final paragraph (b)(3)(iv), similar to the existing (Sec.  
1910.23(a)) and proposed (proposed paragraph (b)(14)(ii)) rules, 
requires that employers ensure they protect workers from falling into 
ladderway floor holes or ladderway platform holes by providing a 
guardrail system and toeboards on all exposed sides, except at the hole 
entrance. In addition, the final rule requires that employers protect 
the access opening in the guardrail system by using a ``self-closing'' 
gate or an offset so workers cannot walk or step into the hole.
    Final paragraph (b)(3)(iv) substitutes ``self-closing'' gate for 
``swinging'' gate language in the existing and proposed rules. The 
purpose of these gates, when open, is to provide a means of access to 
ladderway floor holes and, when closed, to provide guardrail protection 
that meets of all the criteria in final paragraph (b). The term 
``swinging'' gate, as used in the existing and proposed rules, refers 
to gates that automatically swing back into a closed position when the 
opening is not being used for access to prevent workers from falling 
into the ladderway hole. These are sometimes called ``safety gates'' 
(Ex. 68). If gates do not swing automatically into a closed position, 
they do not provide the required guardrail protection.
    OSHA is aware that, in addition to swinging gates, there are 
automatically closing sliding gates that are currently manufactured, 
readily available, and in use to protect workers from falling into 
ladderway floor and platform holes. OSHA believes these sliding gates 
provide protection that is as effective as the protection swinging 
gates provide. Therefore, to give employers the flexibility to use the 
type of automatically closing gate that works best for them, OSHA uses 
the term ``self-closing'' gates in final paragraph (b)(3)(iv).
    OSHA received one comment on the proposed requirement. Edison 
Electric Institute (EEI) recommended that OSHA allow employers to use 
double chains ``around holes used as points of access (such as 
ladderways)'' (Ex. 207). ``Many industrial facilities use double chains 
instead of swinging gates or guardrails at the top of fixed ladders,'' 
EEI said. ``These have been effective for a number of decades'' (Ex. 
207). EEI also pointed out that the 1990 proposed rule would have 
allowed the use of chains, in addition to swinging gates and offsets, 
at the access openings in the guardrail systems.\50\
---------------------------------------------------------------------------

    \50\ See also Letter to Mr. Stephen Hazelton (5/23/2005) that 
states:
    [T]he [1990] proposed paragraph at 1910.28(b)(6) permits the use 
of movable guardrail sections such as gates, chains, and other 
means, which, when open, provide a means of access and, when closed, 
provide the guardrail protection that meets the proposed paragraphs 
1910.28(b)(1) through (b)(5). An employer's compliance with the 
proposed rule, in lieu of compliance with an existing rule 
[1910.23(a)(2)], is considered as a de minimis violation.
    This letter available on OSHA's website at:
    https://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_id=25100.
---------------------------------------------------------------------------

    OSHA has not adopted EEI's recommendation. In the preamble to the 
2010 proposed rule, OSHA said the new proposed rule replaces the 1990 
proposal (75 FR 28863). Unlike the 1990 proposal, proposed paragraph 
(b)(14)(ii)

[[Page 82598]]

did not permit employers to use double chains in place of self-closing 
gates or offsets. As mentioned, OSHA believes that chains less 
protective than self-closing gates or off sets. Self-closing gates and 
offsets are passive fall protection methods that automatically restore 
guardrail protection as soon as the worker passes through the opening 
or offset area. Neither method requires the worker to take any action 
to restore that protection. However, if employers provide double chains 
at entrances to ladderway floor or platform holes, their employees 
would have to remove the chains and reattach them once they pass 
through the opening. If workers forget or fail to reattach the chains, 
they and others in the area could fall through the hole. Workers also 
are at increased risk of falling through the hole once they enter the 
area inside the guardrails to climb down the ladder because they have 
to turn around and away from the hole to reattach the chains and risk 
falling backward into the hole. If workers avoid this risk by not 
reattaching the chains, it exposes other workers to the risk of a fall 
when they approach the opening in the guardrail system. OSHA believes 
that double chains do not fully protect workers from falls at hole 
entrances, and therefore, is adopting the existing and proposed 
requirements that entrances to ladderway floor and platform holes have 
a self-closing gate or be offset to prevent workers from falling.
    Final paragraph (b)(3)(v), like proposed paragraph (b)(14)(iii), 
requires that employers ensure workers are protected from falling 
through hatchway and chute-floor holes by one of the following:
     A hinged floor-hole cover and a fixed guardrail system 
that leaves only one exposed side.\51\ When the hole is not in use, the 
employer must ensure the cover is closed or a removable guardrail 
system provided on all exposed sides (final paragraph (b)(3)(v)(A));
---------------------------------------------------------------------------

    \51\ OSHA used the term ``permanently attached'' guardrail 
system in the proposal. In the final rule, OSHA uses the term 
``fixed'' guardrail systems, which OSHA considers to be equivalent 
to, but clearer than, the proposed term.
---------------------------------------------------------------------------

     A removable guardrail system and toeboards on not more 
than two sides of the hole and a fixed guardrail system on all other 
exposed sides. The employer must ensure the removable guardrail system 
remains in place when the hole is not in use (final paragraph 
(b)(3)(v)(B)); or
     A guardrail system or travel restraint system when the 
work operation necessitates passing material through a hatchway or 
chute floor hole (final paragraph (b)(3)(v)(C)).
    With one exception (final paragraph (b)(3)(v)(C)), the final rule 
generally is consistent with existing Sec.  1910.23(a)(3) and A1264.1-
2007 (Section 3.1). Final paragraph (b)(3)(v)(C) adds a requirement 
that employers provide a guardrail system or travel restraint system 
when workers need to pass materials through a hatchway or chute-floor 
hole. The existing and ANSI rules only state that ``protection shall be 
provided to prevent a person from falling through the opening,'' but do 
not specify what protection is needed. OSHA believes the final rule is 
more protective and clearer than these rules because it specifies how 
employers must protect workers. OSHA adopts final paragraph (b)(3) as 
discussed.
    Dockboards. Final paragraph (b)(4) adds fall protection 
requirements to protect workers on dockboards. The final rule defines a 
``dockboard'' as a portable or fixed device for spanning a gap or 
compensating for the elevation difference between a loading platform 
and a transport vehicle. Dockboards include, but are not limited to 
bridge plates, dock plates, and dock levelers. (final Sec.  
1910.21(b)).
    Final paragraph (b)(4)(i), like the proposal, requires that 
employers ensure each worker on a dockboard is protected from falling 
four feet or more to a lower level by a guardrail system or handrails. 
The final rule limits the fall protection options that employers may 
use. OSHA believes guardrails and handrails will provide adequate 
protection for workers. In addition, employers can use them on 
dockboards while other options may not work. For example, it may not be 
possible to install anchorages on dockboards that would support the use 
of personal fall arrest systems.
    OSHA notes that in some situations there may be insufficient space 
between the dock and the transport vehicle for a worker to fall and, 
therefore, no fall hazard would exist. In that situation, final 
paragraph (b)(4)(i) would not apply.
    Final paragraph (b)(4)(ii), like the proposal, includes an 
exception specifying that employers do not have to provide a guardrail 
system or handrails when:
     Using the dockboard solely for materials-handling 
operations using motorized equipment (final paragraph (b)(4)(ii)(A));
     Workers engaged in motorized material-handling operations 
are not exposed to fall hazards greater than 10 feet (final paragraph 
(b)(4)(ii)(B)); and
     Employers train those workers in accordance with Sec.  
1910.30 (final paragraph (b)(4)(ii)(C)).
    Final paragraph (b)(4)(ii)(C) does not include the proposed 
language identifying the subjects that training must address. The 
requirements in final Sec.  1910.30 cover all of the topics OSHA 
proposed, thus, OSHA does not believe it is necessary to repeat them in 
this provision.
    OSHA believes the exception in final paragraph (b)(4)(ii) is 
appropriate. Employers often use motorized equipment to move large and 
heavy material across dockboards. However, such equipment may not fit 
on a dockboard that has guardrails or handrails. Preventing workers 
from using motorized equipment to move the material may expose them to 
other hazards, such as risk of injury associated with lifting and 
carrying heavy materials. OSHA did not receive any comments on the 
proposed dockboard requirements, and finalizes the provisions as 
discussed.
    Runways and similar walkways. Final paragraph (b)(5) specifies the 
fall protection systems that employers must provide to protect workers 
from falling off runways and similar walkways. The proposed and final 
rules define a ``runway'' as an elevated walking-working surface (Sec.  
1910.21(b)). For purposes of the final rule, runways include catwalks, 
foot walks along shafting, and elevated walkways between buildings.
    Final paragraph (b)(5)(i), like the proposed rule, retains the 
existing requirement (Sec.  1910.23(c)(2)) that employers must protect 
workers on runways or similar walkways from falling four feet or more 
to a lower level by a guardrail system. The final rule generally is 
consistent with the construction fall protection standard (Sec.  
1926.501(b)(6)). Like dockboards, the final rule limits the fall 
protection options employers may use. OSHA believes that guardrails 
will provide adequate protection from falls, and that other options may 
not work on runways. For example, it may not be possible for employers 
to install anchorages and other components of personal fall protection 
systems that would protect workers from falling off runways while still 
allowing them to walk on the runway.
    Final paragraph (b)(5)(i) no longer includes the existing and 
proposed requirement that employers provide toeboards on both sides of 
runways if workers are likely to use tools, machine parts, or other 
objects on the runway. The primary purpose of requiring toeboards is to 
prevent objects from

[[Page 82599]]

falling onto workers on a lower level. As mentioned earlier, OSHA 
consolidated all requirements addressing falling object hazards in 
final paragraph (c), and, therefore, does not repeat them here.
    Final paragraph (b)(5)(ii), which is similar to the proposed rule, 
addresses runways used exclusively for special purposes, such as 
filling tank cars. The final paragraph requires that when the employer 
can demonstrate that it is not feasible to have guardrails on both 
sides of special purpose runways, the employer may omit the guardrail 
on one side, provided the employer:
     Ensures that the runway is at least 18 inches wide (final 
paragraph (b)(5)(ii)(A)); and
     Provides each worker with, and ensures that each worker 
uses, a personal fall arrest system or travel restraint system (final 
paragraph (b)(5)(ii)(B)).
    The final rule clarifies two points in the proposed rule. First, 
the final rule clarifies that guardrails may be omitted from a special 
purpose runway only when the employer can demonstrate that it is not 
feasible to have guardrails on both sides of the runway. Feasibility is 
the standard test of whether employer action is possible, and OSHA 
believes employers are familiar with, and understand, it.
    Second, final paragraph (b)(5)(ii)(B) clarifies the language in the 
proposed rule requiring that employers ensure ``the proper use of 
personal fall arrest systems or travel restraint systems.'' This 
provision means that employers may omit a guardrail on one side of a 
special purpose runway only when the employer both provides and ensures 
that each worker properly uses a personal fall arrest system or travel 
restraint system.
    OSHA notes that the final rule provides greater protection for 
workers than both the existing rule (Sec.  1910.23(c)(2)) and A1264.1-
2007 (Section 5.2). Although these standards specify that employers may 
omit a guardrail on one side of a special use runway only if they use a 
runway that is at least 18 inches wide (consistent with final paragraph 
(b)(5)(ii)(A)), the standards do not require that employers provide, 
and ensure that workers use, personal fall arrest or travel restraint 
systems while on those runways.
    OSHA received no comments on the proposed runway requirements, and 
adopts them with the revisions discussed above.
    Dangerous equipment. Final paragraph (b)(6) addresses the hazards 
associated with working above dangerous equipment. Final Sec.  
1910.21(b) adopts the definition of ``dangerous equipment'' in the 
construction fall protection standard (Sec.  1926.500(b)). The 
definition also specifies that such equipment includes vats, tanks, 
electrical equipment, machinery, machinery with protruding parts, or 
similar units that, because of their function or form, may harm a 
worker who falls into or onto the equipment. The existing rule in Sec.  
1910.23(c)(3) also provides examples of equipment OSHA considers to be 
dangerous, including pickling or galvanizing tanks and degreasing 
units. The definition of dangerous equipment in this final rule 
includes similar equipment. OSHA added a definition of dangerous 
equipment to the final rule in response to Northrup Grumman 
Shipbuilding's (NGS) recommendation that OSHA define the term so that 
employers understand what equipment the final rule covers (Ex. 180).
    This final rule, like the proposed rule, includes requirements for 
protecting workers who are working less than four feet above dangerous 
equipment. OSHA believes it is necessary to protect workers from 
falling onto or into dangerous equipment regardless of how far above 
the equipment they are working. Falling less than four feet into or 
onto equipment that has sharp, protruding, or moving parts could kill 
or seriously injure a worker.
    When workers are less than four feet above dangerous equipment, 
final paragraph (b)(6)(i), like the proposed rule, requires that 
employers protect workers from falling into or onto the dangerous 
equipment using a guardrail system or a travel restraint system, unless 
the equipment is covered or guarded to eliminate the hazard. The 
existing rule in Sec.  1910.23(c)(3) requires that, regardless of 
height, employers must protect workers who are working above dangerous 
equipment using guardrails and toeboards. The construction fall 
protection standard contains a provision requiring guardrails or 
equipment guards when workers are working less than six feet above 
dangerous equipment (Sec.  1926.501(b)(8)).
    OSHA believes final paragraph (b)(6)(i), which allows employers to 
protect their workers by providing either guardrails or travel 
restraint systems, but does not require toeboards, provides greater 
control flexibility than the existing rule without compromising worker 
safety. OSHA believes that either guardrails or travel restraint 
systems provide sufficient protection for workers above dangerous 
equipment. Therefore, OSHA does not believe that toeboards, which 
primarily protect workers from falling objects from higher levels, are 
necessary. Accordingly, OSHA deleted the existing toeboard requirement, 
but notes that final paragraph (c)(1) of this section requires that 
employers provide toeboards to protect workers from objects falling 
from higher levels and hitting them.
    OSHA notes that the final rule does not permit employers to use 
safety nets or personal fall arrest systems when workers are less than 
four feet above dangerous equipment. At these heights, safety nets and 
personal fall arrest systems may not be safe to use because there may 
not be sufficient stopping distance to prevent a falling worker from 
making contact with the dangerous equipment.
    Final paragraph (b)(6)(i), like the proposal, does not require 
employers to use guardrails or travel restraint systems if the employer 
covers or guards dangerous equipment and the worker is less than four 
feet above the equipment. OSHA believes that covering or guarding 
dangerous equipment that is less than four feet below workers 
adequately eliminates the hazard.
    When workers are four feet or more above dangerous equipment, final 
paragraph (b)(6)(ii), like the proposed rule, requires that employers 
protect workers from falling by providing:
     Guardrail systems (final paragraph (b)(6)(ii)(A));
     Safety net systems (final paragraph (b)(6)(ii)(B));
     Travel restraint systems (final paragraph (b)(6)(ii)(C)); 
or
     Personal fall arrest systems (final paragraph 
(b)(6)(ii)(D)).
    Final paragraph (b)(6)(ii) provides more control flexibility for 
employers than the existing rule, which requires that employers protect 
workers from falling onto or into dangerous equipment by providing a 
guardrail system. OSHA believes that allowing employers to use a range 
of fall protection options ensures that employers will be able to 
select the fall protection option that best fits the particular 
workplace situation and conditions.
    OSHA received two comments on the proposed provision. Verallia 
recommended that OSHA delete the requirement because they said the 
proposal was ``too subjective and vague'' and ``could be interpreted 
differently'' (Ex. 171). However, Verallia did not provide examples or 
further explain its recommendation. As mentioned earlier, this final 
rule adds a definition of dangerous equipment, which also includes 
examples of specific equipment OSHA considers to be dangerous. The 
final rule specifically

[[Page 82600]]

and clearly identifies what constitutes dangerous equipment, what 
protections employers must provide at specific heights, and when and at 
what height employers can protect workers from falling using fall 
protection options other than guardrails or travel restraint systems. 
Moreover, OSHA believes the examples of equipment OSHA defines as being 
dangerous specifically clarifies, in objective terms, under what 
conditions employers must comply with the final rule and, therefore, 
reduces the possibility of conflicting interpretations.
    The second commenter, NGS, said the proposed rule was not as 
protective as the existing rule and would not provide an equivalent 
level of protection from ``open pits, vats, etc.'' as existing Sec.  
1910.22(c) (Ex. 180). NGS recommended that ``standard guardrails be 
required around open tanks'' and ``vats that contain hazardous 
substances that pose an immediate threat to life'' (Ex. 180). OSHA does 
not believe including NGS's recommendations are necessary in this final 
rule. First, although final paragraph (b)(6) does not retain existing 
Sec.  1910.22(c) as a separate provision, OSHA incorporated into the 
final definition of dangerous equipment all of the equipment Sec.  
1910.22(c) covers, including the equipment NGS mentioned. The final 
rule does not leave any dangerous equipment unaddressed, and, 
therefore, the Agency believes the final rule provides protection 
equivalent to that in existing Sec.  1910.22(c).
    Second, the final rule allows employers to use controls that 
provide equivalent or greater protection than the controls specified in 
existing Sec.  1910.22(c). OSHA believes that giving employers 
flexibility in choosing what protection to use will enable them to 
select the measure that works best, and is the most effective, in the 
particular work situation. Third, the final rule recognizes that it may 
not be possible to use guardrails in a particular situation and 
provides employers with alternatives that will protect their workers in 
those cases.
    Fourth, where dangerous equipment is not covered or guarded, final 
paragraph (b)(6)(i) requires that employers use guardrails or travel 
restraint systems to protect workers from falling onto the dangerous 
equipment, when the height of the fall is less than four feet. OSHA 
notes that employers are free to use guardrails when an employee works 
at any height above dangerous equipment.
    Openings. Final paragraph (b)(7), similar to the proposed rule, 
requires that employers protect workers from falling through openings. 
Final Sec.  1910.21(b), like both the proposed and construction (Sec.  
1926.500(b)) rules, defines an ``opening'' as a gap or open space in a 
wall, partition, vertical walking-working surface, or similar surface 
that is at least 30 inches high and at least 18 inches wide through 
which a worker can fall to a lower level.
    The final rule requires that employers protect workers on walking-
working surfaces near openings (including openings with a chute 
attached) if the inside bottom edge of the opening is less than 39 
inches above the walking-working surface and the outside bottom edge of 
the opening is four feet or more above a lower level. The employer must 
protect workers from falling through those openings by providing:
     Guardrail systems (final paragraph (b)(7)(i));
     Safety net systems (final paragraph (b)(7)(ii));
     Travel restraint systems (final paragraph (b)(7)(iii)); or
     Personal fall arrest systems (final paragraph (b)(7)(iv)).
    The final rule, unlike the proposal (proposed paragraph 
(b)(7)(ii)), does not allow employers to use designated areas instead 
of providing conventional fall protection to protect workers from 
falling through openings. As discussed above, the final rule limits the 
use of designated areas to the limited and specific situation of work 
on low-slope roofs. Deleting the option of designated areas from final 
paragraph (b)(7) makes the provision consistent with the construction 
standard, which also does not allow the use of designated areas to 
protect workers from falling through openings (Sec.  1926.501(b)(14)).
    The final rule simplifies, updates, and increases the control 
flexibility of the existing rule. For example, the final rule 
establishes one set of requirements that apply to all openings, while 
the existing rule, in Sec.  1910.23(b), contains different provisions 
for different types of wall openings (e.g., chute-wall, window-wall, 
and temporary wall openings). The final rule also incorporates new fall 
protection technology (e.g., personal fall arrest systems, travel 
restraint systems, safety net systems) in place of some of the measures 
listed in the existing rule (e.g., rail, roller, picket fence, half 
door, standard slats, standard grill work). OSHA believes that allowing 
employers to use new technology will enhance worker protection.
    Finally, in several ways the final rule provides more flexibility 
than the existing rule. First, the final rule only requires employers 
to provide fall protection when the inside bottom edge of the opening 
is less than 39 inches above the floor or other type of walking-working 
surface, while the existing rule, with one exception, generally 
requires employers to protect wall openings regardless of the height of 
the bottom inside edge of the opening.\52\ OSHA does not believe that 
it is necessary to provide fall protection when the bottom inside edge 
of openings are 39 inches or higher than the walking-working surface on 
which the worker is standing; in such cases, OSHA believes the wall or 
partition itself usually provides adequate protection against falling 
though the opening. Second, the final rule allows employers to use a 
wider range of fall protection options than the existing rule to 
protect workers near wall openings. OSHA believes the increased 
flexibility will ensure that workers have the most effective protection 
because employers will be able to select the fall protection option 
they determine works best in the particular situation. Finally, 
paragraph (b)(7) of the final rule, unlike the existing rule in Sec.  
1910.23(b)(1)) and (e)(10), does not require that employers install 
grab handles on each side of wall openings. OSHA believes that the fall 
protection options specified by final paragraph (b)(7) provide adequate 
protection from falls through wall openings, and therefore, grab 
handles are not necessary.
---------------------------------------------------------------------------

    \52\ OSHA notes the existing provision (Sec.  1910.23(b)(3)) for 
window wall openings at stair landings, floors, platforms, or 
balconies did not require fall protection if the bottom edge of the 
opening is three feet or more above the landing, floor, platform, or 
balcony.
---------------------------------------------------------------------------

    As discussed in the preamble to the proposed rule, when work 
operations require that workers reach through wall openings to 
facilitate hoisting materials, OSHA considers the opening to be a 
``hoist area'' covered by final paragraph (b)(2), and not a wall 
opening. OSHA believes this distinction is important. Final paragraph 
(b)(7) allows employers to use guardrail, personal fall arrest, travel 
restraint, or safety net systems to protect workers from falling 
through wall openings. However, it is not always possible to use a 
safety net system to protect workers from falling when they are 
hoisting materials through an opening because a safety net system may 
interfere with materials being hoisted or may not provide a sufficient 
stopping distance to prevent a falling worker from making contact with 
the lower level. Accordingly, final paragraph (b)(2) specifies that 
employers must protect workers using only a guardrail, personal fall 
arrest, or travel restraint systems. Moreover, when workers need to 
lean out or over the edge of the hoist area, final paragraph (b)(2) 
requires that employers protect workers with personal fall arrest

[[Page 82601]]

systems. Final paragraph (b)(7) does not contain the protective 
limitations specified by final paragraph (b)(2). OSHA did not receive 
any comments on proposed paragraph (b)(7), and adopts it as discussed.
    Repair, service and assembly pits (pits) less than 10 feet deep. 
Final paragraph (b)(8), like the proposed rule, adds a new provision 
addressing fall hazards associated with repair, service, and assembly 
pits that are less than 10 feet deep. Employers use these pits 
primarily to provide access to the underside of vehicles to perform 
work, such as vehicle maintenance. Typically, a worker drives a vehicle 
over the pit and uses stairs to get into the pit. The final rule 
specifies that employers do not have to provide fall protection systems 
for service, repair, or assembly pits that are less than 10 feet deep, 
provided the employer:
     Limits access within six feet of the pit edge to 
authorized workers trained in accordance with final Sec.  1910.30 
(final paragraph (b)(8)(i));
     Applies floor markings or warning lines and stanchions, or 
a combination thereof, at least six feet from the pit edge. Floor 
markings must be a color that contrasts with the surrounding area and 
warning lines and stanchions must be capable of resisting, without 
tipping over, a force of at least 16 pounds that is applied 
horizontally against the stanchion at a height of 30 inches (final 
paragraph (b)(8)(ii)); and
     Posts readily visible caution signs that state ``Caution--
Open Pit'' and meet the requirements of Sec.  1910.145, Specifications 
for Accident Prevention Signs (final paragraph (b)(8)(iii)).
    Final paragraph (b)(8) only applies to service, repair, and 
assembly pits that are less than 10 feet deep. For deeper pits, 
employers must provide a conventional fall protection system specified 
in final paragraph (b)(1), Unprotected sides and edges.
    Neither the existing nor construction fall protection rules contain 
a similar provision on service, repair, and assembly pits. 
Historically, OSHA addressed these hazards through Section 5(a)(1) 
(General Duty Clause) of the OSH Act (29 U.S.C. 654).
    The final rule recognizes that protecting workers from falling into 
service, repair, and assembly pits can present some unique issues. For 
example, for vehicle service and repair pits, the fall hazard is 
present only when a vehicle is not over the pit. Driving a vehicle over 
the pit normally eliminates the fall hazard. In addition, conventional 
fall protection systems may not work at service, repair, and assembly 
pits. For instance, using guardrails can interfere with driving 
vehicles over or away from a pit, and personal fall arrest and travel 
restraint systems may prevent workers from reaching the area where they 
need to perform work. Finally, it is OSHA's understanding that workers 
are unlikely to be near service, repair, and assembly pits when they 
are not working on vehicles.
    OSHA believes the final rule strikes an appropriate balance between 
protecting workers and ensuring that they can repair, service, or 
assemble vehicles. The Agency believes that establishing well-marked 
areas (that is, floor markings or warning lines and stanchions, or 
both), along with posting caution signs, will be effective in warning 
authorized workers that they are about to enter a hazardous area, and 
other workers that they need to keep out of the area. In addition, 
limiting access within six feet of pits to those workers who the 
employer specifically assigns or allows to be in the area, and who, as 
a result of training, recognize the applicable fall hazards, will keep 
worker exposure to these hazards to a minimum.
    OSHA received comments on the proposed provision from the American 
Trucking Associations, Inc. (ATA) and the American Truck Dealers 
Division of the National Automobile Dealers Association (NADA). Both 
organizations supported the proposed rule (Exs. 181; 187). NADA said, 
``These proposed requirements should serve to adequately address the 
potential for fall hazards related to motor vehicle service pits'' (Ex. 
181).
    OSHA added a sentence to the final rule addressing the situation 
where two or more pits are in a common area and are not more than 15 
feet apart. It specifies that OSHA employers may comply with final 
paragraph (b)(8)(ii) if they place contrasting floor markings at least 
six feet from the pit edge around the entire area of the pits. OSHA 
added the sentence to respond to a comment from ATA, which stated:

    OSHA should include a provision stating that when two or more 
pits are in a common area, a perimeter marking and the posting of 
appropriate warnings around the entire area will meet the 
requirements of this section. In addition, when the distance from a 
building entrance to the pit is less than 6 feet, a floor marking 
and warning sign at the entrance will satisfy the requirements (Ex. 
187).

ATA also noted, ``In some large motor carrier facilities, there may be 
two or more adjacent pits in one area of the shop,'' that ``[t]he 
distance between pits can vary from 12 to 15 feet,'' and that ``the 
distance from the doorway to the closest portion of the pit . . . is 
less than six feet'' (Ex. 187). OSHA believes the added sentence in the 
final rule addresses ATA's concerns and finalizes the provision as 
discussed.
    Fixed ladders (that extend more than 24 feet above a lower level). 
Final paragraph (b)(9) establishes fall protection requirements for 
fixed ladders that extend more than 24 feet above a lower level. Final 
Sec.  1910.21(b), like the proposed rule, defines ``fixed ladder'' as a 
ladder with rails or individual rungs that is permanently attached to a 
structure, building, or equipment. Fixed ladders include individual 
rung ladders, but not ship stairs, step bolts, or manhole steps.
    Final paragraph (b)(9), like the proposal, only requires that 
employers provide fall protection to those fixed ladders that extend 
more than 24 feet above a lower level. The existing rule (Sec.  
1910.27(d)(1)(ii)) requires that fixed ladders more than 20 feet above 
a lower level be equipped with cages or wells. Changing the fall 
protection trigger height to 24 feet makes the final rule consistent 
with ANSI/ASC A14.3-2008 and OSHA's construction ladder standard (Sec.  
1926.1053(a)(18) and (19)), which is one of the Agency's goals in this 
rulemaking. This change allows workers who perform both general 
industry and construction activities to use fixed ladders with the same 
fall protection trigger height.
    Siebe North, Inc., a manufacturer of ladder safety systems and 
personal fall arrest systems, supported the proposed change in the fall 
protection trigger height for fixed ladders (Ex. OSHA-S041-2006-0666-
0198). CSG and ISEA, on the other hand, argued that OSHA should require 
fall protection on fixed ladders from the ground up (Exs. 185; 198). As 
discussed above, limiting fall protection to fixed ladders that extend 
more than 24 feet above a lower level makes the final rule consistent 
with both OSHA's construction rule and the long-standing ANSI standard 
(A14.3). In any event, OSHA does not believe the change from the 
existing rule will affect worker safety substantially because fixed 
ladders that extend more than 24 feet must have fall protection systems 
that protect workers from the ground up even if workers climb the 
ladder less than 24 feet above the lower level.
    In final paragraph (b)(9)(i), OSHA revises the existing fall 
protection requirements for fixed ladders. The final rule requires that 
employers equip fixed ladders with ladder safety systems or personal 
fall arrest systems to protect workers from falling to a lower level, 
which could result in death or serious injury. Final paragraph 
(b)(9)(i) establishes a new framework to protect

[[Page 82602]]

workers from fall hazards on fixed ladders that allows employers to 
gradually, over 20 years, phases in ladder safety systems/personal fall 
arrest systems and phase out the use of cages and wells as a means of 
fall protection. After this 20-year period ends, the final rule 
requires that employers must ensure all fixed ladders are equipped with 
either ladder safety or personal fall arrest systems to protect workers 
from fall hazards. The final rule establishes the following phase-in/
phase-out schedule:
     For existing fixed ladders (that is, for ladders erected 
before November 19, 2018)--employers have up to 20 years to install 
ladder safety or personal fall arrest systems (final paragraph 
(b)(9)(i)(A));
     For new fixed ladders (that is, for new ladders erected on 
or after November 19, 2018)--the employer must equip the new ladder 
with a ladder safety or personal fall arrest system (final paragraph 
(b)(9)(i)(B));
     For ladder repairs and replacements--when an employer 
replaces any portion of a fixed ladder the replacement must be equipped 
with a ladder safety or personal fall arrest system (final paragraph 
(b)(9)(i)(C)); and
     The final deadline for all fixed ladders--on and after 
November 18, 2036 all fixed ladders must be equipped with a ladder 
safety or personal fall arrest system (final paragraph (b)(9)(i)(D)). 
(See further discussion of phase-out schedule below.)
    The gradual phasing out of cages and wells means that employers may 
continue to use existing fixed ladders during the 20-year phase-out 
period, even if the existing fixed ladders are equipped only with cages 
and wells. However, during the 20-year phase out period, when employers 
install new fixed ladders or replace a portion of a section on an 
existing fixed ladder, final paragraphs (b)(9)(i)(B) and (C) require 
them, respectively, to install a new fixed ladder equipped with a 
ladder safety or personal fall arrest system (when replacing the entire 
ladder) or equip the replacement section (e.g., a ladder with multiple, 
offset sections) with a ladder safety system or personal fall arrest 
system (when replacing a portion of an existing fixed ladder). At the 
end of 20 years, final paragraph (b)(9)(i)(D) specifies that all fixed 
ladders must be equipped with ladder safety or personal fall arrest 
systems. (OSHA notes that after the 20-year phase out period ends 
employers may still have or equip fixed ladders with cages and wells, 
but OSHA will not consider them to be a means of fall protection.)
    The proposed rule would have allowed employers to use cages, wells, 
ladder safety systems, or personal fall arrest systems when the length 
of a climb is less than 24 feet regardless of the height of the ladder 
(proposed Sec.  1910.28(b)(9)(i)). When the total length of a climb on 
a fixed ladder is at least 24 feet, the proposed rule would have 
allowed employers to equip the fixed ladder with a ladder safety 
system, personal fall arrest system, cage or well (proposed Sec.  
1910.28(b)(9)(ii)). OSHA is phasing in the requirement to equip fixed 
ladder with ladder safety systems/personal fall arrest systems and 
phasing out the use of cages and wells as a means of fall protection 
because there is wide recognition in general industry that cages and 
wells neither prevent workers from falling off ladders nor protect them 
from injury when a fall occurs (e.g., Exs. OSHA-S041-2006-0666-0198; 
113; 155; 185; 198; 329 (1/21/2011), pgs. 18-19, 259). In general, 
stakeholders said cages and wells simply ``contain employees in the 
event of a fall and direct them to a lower landing'' rather than 
preventing them from hitting a lower level (Ex. 113; see also Exs. 
OSHA-S041-2006-0666-0198; 155; 185; 198; 329 (1/21/2011), pgs. 18-19, 
259)). In addition, they also said fixed ladder cages and wells may 
result in severe injury or fatality and increase the severity of fall 
injuries (Ex. 113; 185; 198; OSHA-S041-2006-0666-0198). Therefore, they 
said OSHA should require that fixed ladders be equipped with ladder 
safety systems or personal fall arrest systems (Exs. OSHA-S041-2006-
0666-0198; OSHA-S041-2006-0666-0354; 113; 155; 185; 198; 329 (1/21/
2011), pgs. 18-19, 259).
    As far back as 1990, when OSHA first raised the question about the 
effectiveness of cages and wells as a means of fall protection on fixed 
ladders, Siebe North, Inc., a manufacturer of ladder safety and 
personal fall protection systems, said OSHA should require that fixed 
ladders be equipped with ladder safety systems or personal fall arrest 
systems:

    Except to the extent that a cage or well will change the 
trajectory of a fall so that the victim falls directly to the base 
of the ladder, we are unaware of any empirical or other data which 
suggests that a cage or well will otherwise result in a fall which 
is not a free fall--or, more importantly, a fall likely to result in 
less severe injury than would be caused by a free fall of the same 
distance. (Indeed, most falls of any significant distance in cages, 
and probably in wells as well, are likely to add to the victim's 
trauma due to impacts with the cage or well during the course of the 
fall.)
* * * * *
    As already noted, except to the extent that it directs the 
victim's falling body to the base of the ladder, a cage or well 
provides no protection for the falling climber. On the other hand, 
where a ladder safety device is used, a climber's fall is stopped in 
2 feet or less, with no trauma from this short fall. When a fall 
occurs, a ladder safety device alone will both save a life and 
prevent injury, no matter where in the climb the fall begins. On the 
other hand, a cage or well will do neither. If the ladder is 
equipped with only a cage or well, whether a falling climber dies or 
merely lives with severe injury depends entirely on the length of 
the fall since the cage or well will have no protective effect (Ex. 
OSHA-S041-2006-0666-0198) (emphasis in original).

In response to the 2010 proposed rule, a number of commenters also 
agreed that employers need to equip fixed ladders with ladder safety 
systems/personal fall arrest systems because cages and wells are not 
effective fall protection measures (Exs. 113; 185; 198; 329 (1/18/
2011), p. 96; 329 (1/21/2011), p. 259). For example, CSG said:

    [C]ages should not be used as an individual method of fall 
protection, but only in conjunction with a personal fall arrest/
cable-and-rail system or a twin-leg lanyard. CSG recognizes that a 
cage system allows a measure of security. However, if a person does 
fall in a cage, OSHA is correct that the cage will direct the person 
to the ground, likely resulting in a severe injury or fatality (Ex. 
198).

    ISEA agreed with CSG (Ex. 185). The Oregon Department of 
Transportation (DOT) added:

    Ladder cages are an old technology used for decades before 
ladder safety systems were ever developed . . . [C]ages and wells 
are designed to ``. . . contain employees in the event of a fall and 
direct them to a lower landing.'' Cages provide little fall 
protection and no fall prevention. They do give a sense to the 
climber of being contained, and do provide a surface to rest against 
for a winded climber, but will not prevent a fall. Falls in cages 
can be very gruesome with the faller entangling themselves in the 
cage as they fall, sometimes tearing off body parts (Ex. 113).

    Similarly, Ellis testified that OSHA should prohibit the use of 
cages and wells for fall protection because he said they are 
ineffective:

    [T]his may be the time to withdraw cages since they are 
ineffective. I refer to the [Health and Safety Executive] Report on 
their website relating to cages and the testing that's being done to 
show that they're incapable of stopping falls. It may not be OSHA's 
best move to keep citing a device that fails to work which most 
people would admit that you're not get stopped in a fall. The best 
that happens in a fall inside a cage is to be a--have a feeling of 
being contained. . . . (Ex. 329 (1/21/2011, p. 259)).

    The Health and Safety Executive (HSE) report Ellis cited was

[[Page 82603]]

``Preliminary investigation into the fall-arresting effectiveness of 
ladder safety hoops'' (Research Report 258-2004).\53\
---------------------------------------------------------------------------

    \53\ The HSE Report is available at 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\
---------------------------------------------------------------------------

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

    \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

[[Page 82616]]

     The employer ensures authorized workers receive training 
in accordance with final Sec.  1910.30 (final paragraph 
(b)(14)(ii)(C)).
    The language in final paragraph (b)(14)(ii) is the same as the 
language in the exception for working sides of loading rack, loading 
dock, and teeming platforms (final paragraph (b)(1)(ii)).
    Walking-working surfaces not otherwise addressed. Final paragraph 
(b)(15), like proposed paragraph (b)(13), applies to walking-working 
surfaces that other paragraphs in final Sec.  1910.28(b) do not address 
specifically, such as ramps. Final paragraph (b)(15), like final 
paragraph (b)(1)), requires that employers must protect each worker on 
a walking-working surface not addressed elsewhere in final paragraph 
(b) or other subparts in 29 CFR part 1910 from falling four feet or 
more to a lower level using:
     Guardrail systems (final paragraph (b)(15)(i));
     Safety net systems (final paragraph (b)(15)(ii)); or
     Personal fall protection systems, such as personal fall 
arrest systems, travel restraint systems, and positioning systems 
(final paragraph (b)(15)(iii)).
    Final paragraph (b)(15) does not retain the proposed fall 
protection measure of designated areas (proposed paragraph 
(b)(13)(ii)). However, final paragraph (b)(15) still gives employers 
the same level of control flexibility that proposed and final paragraph 
(b)(1)(i) provides for all unprotected sides and edges. The final rule 
also is consistent with the construction fall protection standard 
(Sec.  1926.501(b)(15)).
    OSHA included this provision in the final rule to protect workers 
from all fall hazards in general industry regardless of whether final 
paragraph (b) in this section specifically mentions the particular 
walking-working surface or fall hazard. Therefore, this provision 
ensures that general industry employers will protect their workers from 
falling whenever and wherever a fall hazard is present in their 
workplaces. OSHA did not receive any comments on the proposed 
provisions and adopts it as discussed.
Paragraph (c)--Protection From Falling Objects
    Final paragraph (c), like the proposed rule, requires that 
employers protect workers from being struck by falling objects, such as 
objects falling through holes or off the sides or edges of walking-
working surfaces onto workers below. When workers are at risk of being 
struck by falling objects, the final rule requires that employers 
ensure that workers wear head protection meeting the requirements of 29 
CFR part 1910, subpart I. In addition, final paragraph (c) requires 
that employers protect workers using one or more of the following:
     Erecting toeboards, screens, or guardrail systems to 
prevent objects from falling to a lower level (final paragraph (c)(1));
     Erecting canopy structures and keeping potential falling 
objects far enough from an edge, hole, or opening to prevent them from 
falling to a lower level (final paragraph (c)(2)); or
     Barricading the area into which objects could fall, 
prohibiting workers from entering the barricaded area, and keeping 
objects far enough from the edge or opening to prevent them from 
falling to the lower level (final paragraph (c)(3)).
    Final paragraph (c) simplifies the rule by consolidating into a 
single paragraph all of the provisions that address falling objects in 
the existing standard (Sec.  1910.23(b)(5) and (c)(1)) and the proposed 
rule (paragraphs (b)(3)(iii), (b)(5)(i), (b)(14)(ii)). The final rule 
is consistent with the proposal and patterned on the construction 
standard (Sec.  1926.501(c)). OSHA did not receive any comments on the 
proposed protection from falling object requirements and adopts final 
paragraph (c) as discussed.
Section 1910.29--Fall Protection Systems and Falling Object 
Protection--Criteria and Practices
    Final Sec.  1910.29, like the proposed rule, establishes system 
criteria and work-practice requirements for fall protection systems and 
falling object protection specified by final Sec.  1910.28, Duty to 
have fall protection systems and falling object protection,\65\ and 
Sec.  1910.140, Personal fall protection equipment.
---------------------------------------------------------------------------

    \65\ The final rule revised the title for Sec.  1910.29 to state 
that it establishes criteria and practices for both fall protection 
systems and falling object protection. Although the proposed title 
only listed fall protection systems, it also included criteria and 
systems for protecting workers from falling objects. OSHA believes 
stakeholders understood the proposed rule covered both fall 
protection systems and falling object protection, the final rule 
makes it clear and explicit.
---------------------------------------------------------------------------

    As discussed earlier in this preamble, final Sec. Sec.  1910.28, 
1910.29, 1910.30, and 1910.140 establish new provisions that provide a 
comprehensive approach to fall and falling object protection in general 
industry. Final Sec.  1910.28 specifies that employers must provide 
fall and falling object protection for workers exposed to fall and 
falling object hazards, and select a system that the final rule allows 
them to use in particular situations or operations.
    Final Sec.  1910.29 requires that employers ensure the fall 
protection system and falling object protection they select meet the 
specified criteria and practice provisions. Finally, Sec.  1910.30 
requires that employers ensure workers exposed to fall and falling 
object hazards and who must use fall protection systems and falling 
object protection receive training on those hazards and how to use the 
required protection properly. OSHA notes that the final rule adds a 
requirement that employers provide training for personal fall 
protection systems to existing Sec.  1910.132.
    In general, OSHA patterned the system criteria and work practice 
requirements in final Sec.  1910.29 to be consistent with its 
construction standards (Sec. Sec.  1926.502 and 1926.1053). OSHA 
believes that making the general industry fall protection system and 
falling object protection criteria requirements consistent with the 
construction standards will make the final rule easier to understand 
than the existing general industry standard, and make compliance easier 
for employers who perform both general industry and construction 
activities. In many situations employers should be able to use the same 
fall protection systems and falling object protection for both 
activities, which helps to minimize compliance costs. As mentioned in 
the preamble to final Sec.  1910.28, many commenters supported making 
the general industry fall and falling object protection requirements 
consistent with those in the construction industry.
    Final Sec.  1910.29, like the proposed rule, reorganizes the 
existing rule so that the format of the final rule is consistent with 
the format in the construction fall protection standard in Sec.  
1926.502. OSHA believes this reorganization will make the final rule 
easier to understand and follow because many employers already are 
familiar with and follow the construction requirements.
    Final Sec.  1910.29 also draws provisions from, and is consistent 
with, national consensus standards addressing personal fall protection 
systems and falling object protection, including:
     ANSI/ASC A14.3-2008, American National Standards for 
Ladders-Fixed (A14.3-2008) (Ex. 8);
     ANSI/ASSE A1264.1-2007, Safety Requirements for Workplace 
Walking/Working Surfaces and Their Access; Workplace, Floor, Wall and 
Roof Openings; Stairs and Guardrails Systems (A1264.1-2007) (Ex. 13); 
and
     ANSI/ASSE A10.18-2012, Safety Requirements for Temporary 
Roof and Floor Holes, Wall Openings, Stairways, and Other Unprotected 
Edges in

[[Page 82617]]

Construction and Demolition Operations (A10.18-2012) (Ex. 388); and
     National Fire Protection Association (NFPA) 101-2012, Life 
Safety Code (NFPA 101-2012) (Ex. 385).
Paragraph (a)--General Requirements
    Final paragraph (a) establishes general requirements that are 
applicable to the fall protection systems and falling object protection 
covered by final 29 CFR part 1910.
    In final paragraph (a)(1), OSHA specifies that employers ensure all 
fall protection systems and falling object protection that 29 CFR part 
1910 requires meet the requirements in Sec.  1910.29. Accordingly, the 
requirements of Sec.  1910.29 apply to fall protection systems and 
falling object protection that other part 1910 standards require if 
those standards do not establish specific criteria and work practices. 
For example, final paragraph (a)(1) requires that ladder safety systems 
on fixed ladders used at sawmills (Sec.  1910.265)) must comply with 
requirements in Sec.  1910.29(i) because Sec.  1910.265 does not 
specify criteria that ladder safety systems must meet.
    When employers elect to use a personal fall protection system, 
final paragraph (a)(1) specifies that employers must ensure those 
systems meet the applicable requirements in 29 CFR part 1910, subpart 
I, namely final Sec. Sec.  1910.132, General requirements, and 
1910.140, Personal fall protection equipment. Final Sec.  1910.140 
establishes personal fall protection system criteria and work practice 
requirements, while Sec.  1910.132 establishes provisions that apply to 
all personal protective equipment (PPE), including personal fall 
protection systems. For example, Sec.  1910.132(a) requires that 
employers provide, use, and maintain PPE, including personal fall 
protection systems, in a reliable condition, and Sec.  1910.132(c) 
specifies that employers ensure that the design and construction of PPE 
is safe for the work the employee is performing. In addition, Sec.  
1910.132(d) requires that employers perform a hazard assessment and 
``[s]elect PPE that properly fits each affected employee,'' while Sec.  
1910.132(h) requires, with a few exceptions, that employers must 
provide PPE, including personal fall protection systems, at no cost to 
the worker.
    Final paragraph (a)(1) revises the proposed rule slightly by 
deleting the reference to ``body belts and body harnesses,'' because 
they are components of personal fall protection systems. OSHA did not 
receive any comments on proposed paragraph (a)(1) and adopts the 
provision with the change discussed.
    Final paragraph (a)(2) specifies that employers must provide and 
install all fall protection systems and falling object protection 
required by final subpart D, and comply with all other applicable 
requirements of final subpart D, before any worker begins work that 
necessitates fall or falling object protection. Final paragraph (a)(2), 
requires that employers take a proactive approach to managing fall and 
falling object hazards by installing, for example, fall protection 
systems or components (e.g., a vertical lifeline), so the systems are 
in place and available for use whenever there is potential worker 
exposure to fall hazards. OSHA believes that a proactive approach will 
encourage employers to anticipate and evaluate whether their workers 
may be on walking-working surfaces where a potential fall or falling 
object hazard exists and install systems (e.g., guardrail systems, 
toeboards) or attachment (tie-off) points (e.g., anchorages, tieback 
anchors) so that workers can use such protection readily when needed.
    OSHA believes such proactive planning and action already are part 
of the standard operating procedures for many employers. OSHA also 
believes that such pre-planning will encourage and guide employers to 
use the most effective and protective measures to address fall and 
falling object hazards. OSHA did not receive any comments on proposed 
paragraph (a)(2) and adopts the provision with the clarification 
discussed above.
Paragraph (b)--Guardrail Systems
    Final paragraph (b) contains system requirements employers must 
follow to ensure guardrail systems they use will protect workers from 
falling to lower levels. In developing final paragraph (b), OSHA 
carried forward, with some revision, many of the requirements from the 
existing rule (e.g., existing Sec.  1910.23), and also drew the 
requirements from the construction fall protection standard in Sec.  
1926.502(b).
    The Agency believes that the revised guardrail requirements make 
the final rule easier to understand than the existing general industry 
rule, reflect current technology and work practices, and ensure 
consistency among guardrail requirements throughout general industry. 
For example, OSHA reorganized the final rule so the same guardrail 
system requirements (final paragraph (b)) apply uniformly to all 
walking-working surfaces, in turn making the requirement easier to 
understand than the existing general industry rule, which separately 
lists the guardrail requirements for floor holes, open-sided floors, 
platforms, runways, and stairways. In addition to the explanations 
below for each of the guardrail system requirements, OSHA notes that 
the preamble to Sec.  1926.502 (59 FR 40733) also provides useful 
explanatory material for each of the guardrail system provisions in 
Sec.  1926.502(b).
    Final paragraph (b)(1) specifies requirements for the minimum and 
maximum height of guardrail systems. Final paragraph (b)(1) carries 
forward the existing requirement (existing Sec.  1910.23(e)(1)) that 
employers must ensure the top edge of the top rails of guardrail 
systems is 42 inches above the walking-working surface, which is 
consistent with the proposal and the construction fall protection 
standard (Sec.  1926.502(b)(1)). The final rule allows the height of 
guardrails to deviate from the 42-inch required height by up to three 
inches, plus or minus, which also is consistent with the construction 
standard. Final paragraph (b)(1) clarifies in objective terms (``plus 
or minus 3 inches'') the language in the existing provision that the 
guardrail height may deviate from 42 inches by a ``nominal'' amount. 
OSHA believes that a deviation of no more than three inches from the 
42-inch guardrail height constitutes a ``nominal'' deviation that will 
not compromise worker protection. The Agency believes that continuing 
this allowance provides flexibility for employers if they make changes 
to walking-working surfaces (e.g., adding carpet, installing grating, 
and replacing flooring) that may slightly reduce the effective height 
of the guardrail (see 55 FR 13374).
    Final paragraph (b)(1) also is consistent with A10.18-2012 (Section 
4.1.2) and A1264.1-2007 (Section 5.4). A1264.1-2007 (Section 5.4) 
requires that guardrails have a minimum height of 42 inches, but does 
not specify a maximum height. A note to that standard explains that, 
generally, ``guardrails are 42 to 45 inches in height'' (Section E5.4).
    Final paragraph (b)(1) also revises the existing rule (existing 
Sec.  1910.23(e)(1)) to allow employers to erect guardrail systems that 
exceed the 45-inch height limit, provided the employer ensures that the 
higher guardrails comply with all other requirements in paragraph (b). 
The final rule is consistent with the requirement in the construction 
fall protection standard (Sec.  1926.502(b)(1)), which permits an 
increase in the top rail height ``when conditions warrant.'' OSHA 
believes that such conditions also exist in general industry, and that 
exceeding the 42-inch height

[[Page 82618]]

requirement will not impact worker safety as long as employers comply 
with the other provisions of final paragraph (b). While the proposed 
rule allowed higher guardrail systems in these situations ``when 
conditions warrant,'' OSHA did not adopt that phrase in the final rule 
because the Agency concluded that no other conditions are necessary to 
ensure employee safety as long as the employer satisfies the other 
provisions of final paragraph (b). OSHA believes that adding this 
exception to the final rule will make compliance easier for employers 
who perform both general industry and construction activities. Neither 
the A10.18-2012 nor the A1264.1-2007 standards include this exception 
to the guardrail height limit. Ameren supported ``relaxing the 
`maximum' '' height requirement for the reasons OSHA delineated (Ex. 
189).
    In the preamble to the proposed rule, OSHA said it was considering 
adding a provision that would allow employers to use barriers ``as the 
functional equivalent of guardrails'' (75 FR 28894). Such a provision 
would permit employers to use barriers as guardrails even if the height 
of the barriers is as low as 30 inches provided the total sum of the 
height and depth of the barrier is 48 inches. Using this formula, an 
employer could use a barrier with a height of 36 inches if the depth of 
the barrier were at least 12 inches. OSHA notes that the 1990 proposal, 
which the Agency did not adopt, included the provision as an 
alternative means of complying with the 42-inch guardrail height 
requirement (55 FR 13374). The preamble to the 1990 proposal explained 
that the National Bureau of Standards recommended a formula from its 
1976 report, ``A Model Performance Standard for Guardrails.''
    OSHA received one comment about the potential provision. Thomas 
Kramer, of LJB, Inc., supported incorporating the provision in the 
final rule, stating, ``This reference would allow a number of parapets 
associated with roof fall hazards to be used as a compliant physical 
barrier. It would have the added value of providing the building owner 
with a very low cost, if any cost at all, solution to protecting 
workers on a roof,'' and further commenting that ``[c]learly, this 
proposed revision is technologically feasible'' (Ex. 367).
    For the following reasons, OSHA decided not to add a provision 
allowing the use of barriers as functional equivalents of guardrail 
systems. First, incorporating the provision would make the final rule 
inconsistent with the construction fall protection standard, which is 
contrary to a major goal of the rulemaking. Similarly, neither A10.18-
2012 nor the A1264.1-2007 include the provision.
    Second, the formula from the 1976 report ``A Model Performance 
Standard for Guardrails,'' which forms the basis for the potential 
provision, is almost 40 years old. The documents and codes the report 
references are even older. OSHA believes that industry practices over 
the last 40 years overwhelmingly complied with the 42-inch guardrail 
requirement in the existing rule as well as the construction fall 
protection and ANSI standards, eliminating the need for this 
alternative.
    Finally, OSHA does not believe the provision will provide fall 
protection that is as effective as the final rule. The Agency believes 
there is a risk of workers falling over barriers that are one-half foot 
or more lower than the required 42-inch guardrail height. In 
particular, OSHA does not believe a barrier with a height of 36 inches 
provides adequate protection from falls even when the barrier depth is 
12 inches. OSHA believes it would be too easy for workers to fall over 
barriers that are one-half foot lower than the required height, and 
that the 12-inch barrier depth would not provide adequate protection 
from going over the barrier. OSHA expressed much the same rationale 
when it decided not to propose a provision that would allow existing 
guardrails that are 36 inches in height. In the proposed rule OSHA said 
that it did not consider 36-inch high guardrails to be as safe as the 
required 42-inch high guardrails (75 FR 28894).
    OSHA notes that the 1990 proposed rule would have allowed a 36-inch 
minimum height for existing guardrail systems instead of the required 
42 inches (55 FR 13360 (4/10/1990)). In particular, the earlier 
proposal would have codified the 1981 OSHA directive classifying as a 
de minimus violation any existing guardrail having a height of 36 
inches (STD 01-01-010). OSHA issued the directive because it recognized 
that employers likely erected guardrails under pre-OSHA building codes 
(55 FR 13373). As mentioned, however, OSHA did not propose allowing 
this alternative in the 2010 proposal because of safety concerns. In 
addition, due to those concerns, OSHA also announced that it was going 
to rescind the directive and previous interpretations treating 36-inch 
height guardrails as de minimus violations (see 75 FR 28894 n.2).
    OSHA received several comments recommending that the Agency not 
rescind the directive and instead adopt a provision allowing employers 
to continue using existing guardrails that have a height of 36 inches. 
Mercer ORC questioned OSHA's statement in the proposal that guardrails 
36 inches in height are not as ``equally safe'' as guardrails with a 
height of 42 inches (Ex. 254). However, they provided no evidence to 
support deviating from the height requirements in the construction fall 
protection standard and both A10.18-2012 and A1264.1-2007. Mercer ORC 
also said OSHA should estimate the costs associated with replacing the 
lower-height guardrails and the number of injuries prevented by having 
guardrails that are 39 inches in height (Ex. 254). Mercer ORC stated:

    Clearly, if people have been writing to OSHA to ask about 
guardrails that are less than the ``42 inches nominal'' in the 
existing rule, there are likely to be significant numbers of 
workplaces that have these non-standard guardrails in place. OSHA 
should either quantify the benefits and costs of this rule change or 
grandfather those guardrail installations that occurred prior to the 
effect date of the new rules (Ex. 254).

    The New York City Department of Environmental Protection (NYCDEP) 
commented that requiring 42-inch guardrails would ``impact'' many 
NYCDEP facilities (Ex. 191). They said the 42-inch height requirement 
``will not provide a benefit to our employees commensurate with the 
costs and will encumber funds that could be used for more efficacious 
health and safety initiatives.''
    OSHA does not agree with Mercer ORC and NYCDEP that requiring 
guardrails to be 42 inches in height will impose significant costs to a 
substantial number of workplaces. They did not provide any evidence 
showing that a 36-inch guardrail height better effectuates the purposes 
of the OSH Act than the proposed 42-inch height. In fact, the 
requirement that employers ensure guardrails be 42 inches high (plus or 
minus 3 inches) has been in place since OSHA adopted the Walking-
Working Surfaces standards in 1972 from then-existing national 
consensus standards (ANSI A12.1-1967, Section 7.1) (38 FR 24300 (9/6/
1973)). Moreover, the guardrail height requirements in those consensus 
standards were adopted years before 1972. A1264.1-2007 and A10.18-2012 
also require that guardrail heights be at least 42 inches.
    OSHA points out the directive OSHA issued in 1981 allowing 
guardrails to have a minimum height of 36 inches instead of 42 inches 
only applied to guardrails existing at that time. OSHA believes that 
the vast majority of guardrails in use today are 42 inches (plus or 
minus 3 inches) in height. Therefore, OSHA does not believe that 
employers will experience significant difficulty bringing any remaining

[[Page 82619]]

guardrails into compliance with this final standard. Accordingly, the 
final rule does not allow existing guardrails that are less than 39 
inches in height. Moreover, OSHA hereby rescinds OSHA Directive STD 01-
01-010 and all subsequent letters of interpretation allowing guardrails 
to have a minimum height of 36 inches.
    Mr. M. Anderson raised a different point regarding the 42-inch 
guardrail height requirement, saying that the requirement will pose a 
problem for historic buildings, which often have low guardrails:

    This will present an infeasible-to-fix problem for historic 
sites. Many historic balustrades are less than the required 42 
[inches]. In order to comply with this height requirement, 
balustrades will have to be replaced thereby changing the historic 
aesthetic of the building. This seems to go against the Historic 
Preservation Act (Ex. 139).

    OSHA did not receive comments from any other stakeholders 
concerning historic buildings and historic preservation requirements. 
To the extent that any employer encounters such a problem, the employer 
may use one of the other means of fall protection authorized by Sec.  
1910.28 (e.g., safety net systems or personal fall protection systems).
    Final paragraph (b)(2), like the proposed rule, requires that 
employers install intermediate protective members, such as midrails, 
screens, mesh, intermediate vertical members, solid panels, or 
equivalent intermediate members between the walking-working surface and 
the top edge of the guardrail system when there is not a wall or 
parapet that is at least 21 inches (53 cm) high. Whatever intermediate 
protective member employers use, the final rule requires that employers 
install them as follows:
     Install midrails midway between the top edge of the 
guardrail system and the walking-working surface. Since the final rule 
requires that guardrail systems be 42 inches high (plus or minus three 
inches), employers must install midrails approximately 21 inches above 
the horizontal walking-working surface (final paragraph (b)(2)(i));
     Install screens, mesh, and solid panels from the walking-
working surface to the top rail and along the entire opening between 
top rail supports (final paragraph (b)(2)(ii));
     Install intermediate vertical members, such as balusters, 
no more than 19 inches apart (final paragraph (b)(2)(iii)); and
     Install other equivalent intermediate members, such as 
additional midrails and architectural panels, so that openings are not 
more than 19 inches wide (final paragraph (b)(2)(iv)).
    OSHA drew the requirements in final paragraph (b)(2) from the 
construction fall protection standard in Sec.  1926.502(b)(2), which 
has almost identical requirements. The existing rule in Sec.  
1910.23(e)(1) and (e)(3)(v)(c) only address the installation of 
midrails. OSHA believes final paragraph (b)(2) provides more clarity 
and flexibility than the existing rule. Final paragraph (b)(2) includes 
examples of different types of intermediate members that employers may 
use, and identifies the placement/installation criteria for each type. 
In addition, the final rule does not require that employers install 
intermediate protective members when the guardrail system is on a wall 
or parapet that is at least 21 inches high, which is consistent with 
the construction fall protection standard. OSHA believes it is not 
necessary to install intermediate protective members where a wall or 
parapet reaches at least the same height as that required for a 
midrail.
    OSHA received one comment on proposed paragraph (b)(2). Ellis Fall 
Safety Solutions (Ellis), recommended that guardrails made of wire 
cable use at least three wires so the space between cables does not 
exceed 19 inches (Ex. 155). OSHA does not believe it is necessary to 
add such language to the final rule. The requirements on ``intermediate 
members'' and ``other equivalent intermediate members'' include wire 
cables; thus, the final rule in paragraphs (b)(2)(iii) and (iv) already 
require that wire cable installed in a guardrail system leave no 
opening in the system that exceeds 19 inches.
    OSHA added language to final paragraph (b)(2) to clarify that solid 
panels are an example of a protective intermediate member. This 
addition makes the final provision consistent with final paragraph 
(b)(5).
    Final paragraphs (b)(3) and (4) are companion provisions that 
establish strength requirements for guardrail systems. Final paragraph 
(b)(3), like the proposed rule, requires that employers ensure 
guardrail systems are capable of withstanding, without failure, a force 
of at least 200 pounds applied in a downward or outward direction 
within two (2) inches of the top edge, at any point along the top rail. 
Final paragraph (b)(3) generally is consistent with the existing rule 
in Sec. Sec.  1910.23(e)(3)(iv) and (e)(3)(v)(b). The final rule is 
almost identical to the construction fall protection standard in Sec.  
1926.502(b)(3), and consistent with A10.18-2012 (Section 4.1.4).
    The term ``failure,'' as defined in final Sec.  1910.21(b), means a 
load refusal (i.e., the point at which the load exceeds the ultimate 
strength of a component or object), breakage, or separation of a 
component part. Conversely, ``without failure'' means a guardrail 
system must have adequate strength to withstand at least 200 pounds 
applied downward or outward within two inches of the top edge of top 
rail, without a load refusal, breakage, or separation of component 
parts. OSHA believes that if the guardrail system can withstand 
application of such force, even if the system has some minor 
deformation, it will be capable of preventing a worker from falling. 
OSHA believes minor deformation that does not affect the structural 
integrity or support capabilities of the guardrail system does not 
constitute failure as the final rule defines it.
    OSHA also has removed the language in the existing standard that 
requires supporting posts to be spaced not more than 8 feet apart. OSHA 
believes the performance language of final paragraph (b)(3) is 
adequate, and also provides greater flexibility. In some cases an 8-
foot distance between posts may not be adequate to meet the 200-pound 
strength requirement, while in other situations and with certain 
materials, the guardrail will maintain a 200-pound force with the 
supporting posts installed at distances greater than 8 feet apart. 
Employers must install supporting posts at whatever distance is 
necessary to meet the strength requirement of the final rule, without 
failure.
    OSHA received two comments on proposed paragraph (b)(3). Peter 
Catlos recommended that the final rule, at a minimum, specify test 
methods or requirements for load concentrations and rates when applying 
the 200-pound test load (Ex. 203). Without specifying load 
concentrations and rates, or test methods, Mr. Catlos said the 
referenced 200-pound minimum load requirement ``is not definitive'' 
(Ex. 203).
    Consistent with Section 6(b)(5) of the OSH Act, final paragraphs 
(b)(3) and (4) use a performance-based approach that establishes the 
strength objective employers must meet when testing a guardrail. The 
A10.18-2012 standard (Section 4.1.4) and the A1264.1-2007 standard 
(Section 5.6.1) follow a similar approach. As such, OSHA believes the 
strength requirement, which also is identical to the requirement in the 
construction fall protection standard, is protective, clear, and 
functional.
    Final paragraph (b)(3) gives employers flexibility to use whatever 
test methods or manufacturer information they want so long as those 
methods and

[[Page 82620]]

specifications meet the same strength requirement as the final rule. 
OSHA notes that A1264.1-2007 and American Society for Testing and 
Materials (ASTM) E985-00e1-2006 Standard Specification for Permanent 
Metal Railing Systems and Rails for Buildings, provide helpful guidance 
for meeting the 200-pound strength requirement.
    The other commenter, Ellis, recommended that OSHA revise the 200-
pound strength requirement to 276 pounds (i.e., the 95th percentile for 
men) (Ex. 155). He said that, according to the National Health and 
Nutrition Examination Survey, the average weight of workers increased 
about 1\1/2\ to 2 pounds a year since the 1950s, adding, ``Heavier 
workers deserve to be protected and just because ANSI and OSHA have not 
updated their standards for effectively 40 years does not mean we 
should stay with out of date values'' (Ex. 155). OSHA does not believe 
the change Ellis proposes is necessary. The 200-pound strength 
requirement in A10.18-2012 (Section 4.1.4) and A1264.1-2007 (Section 
5.6.1) is a minimum strength requirement.
    Finally, Ellis said OSHA should prohibit using guardrail systems as 
anchorages for personal fall protection systems unless a registered 
structural engineer approves, marks, or labels the systems for such 
use. OSHA does not believe it is necessary to add Ellis' recommendation 
to the final rule because Sec.  1910.140 requires that personal fall 
protection system anchorages be capable of supporting 5,000 pounds. 
However, final paragraph (b)(3) only requires that guardrail systems be 
capable of withstanding a force of at least 200 pounds, which means 
that guardrail systems are not capable of serving as anchorages unless 
they also meet the requirements anchorages in final rule Sec.  
1910.140. OSHA, received no other comments and is adopting in this 
final rule paragraph (b)(3) as discussed.
    Final paragraph (b)(4), like the proposed rule, requires that 
employers ensure that when the 200-pound test load is applied in a 
downward direction, the top rail of the guardrail system does not 
deflect to a height of less than 39 inches above the walking-working 
surface. Deflection refers to the distance or degree a structure moves 
or displaces when a load is applied to the structure. To illustrate, 
employers must ensure that application of the required minimum test 
load to the top rail of a 42-inch guardrail system does not reduce its 
height by more than three inches. If the load or stress placed on a 
guardrail system, regardless of its height, reduces the height of the 
system to less than 39 inches, it is not likely to be tall enough to 
prevent workers from falling over the top rail. Therefore, final 
paragraph (b)(4) specifies that employers must ensure the height of 
their guardrail systems, deflected or not, is never less than 39 inches 
high.
    Final paragraph (b)(4) is almost identical to the construction fall 
protection standard in Sec.  1920.502(b)(4). The A10.18-2012 standard 
(Section 4.1.4) specifies that guardrails shall not deflect more than 3 
inches in any direction. Since that standard does not allow any nominal 
deviation in the guardrail height, it means that standard limits the 
deflected height to not less than 39 inches high.
    OSHA received comments from Mr. Catlos and Ellis on proposed 
paragraph (b)(4). Ellis opposed allowing the guardrail system to 
deflect as much as 3 inches, stating, ``[Three inches of] movement 
specified in 1926.502 is too great and 1.5 [inches] should be [the 
maximum] when over half the male worker [center of gravity] exceeds 39 
[inches]'' (Ex. 155). OSHA believes that a guardrail system that has a 
height of at least 39 inches, as final paragraph (b)(4) requires (i.e., 
``42 inches, plus or minus 3 inches''), is adequate to protect a worker 
from falling over the top rail. OSHA drew final paragraph (b)(4) from 
the construction fall protection standard, and the Agency is not aware 
of any data indicating workers are falling over guardrail systems that 
have a height of at least 39 inches. OSHA also notes the final rule is 
consistent with A10.18-2012 (Section 4.1.4), indicating final paragraph 
(b)(4) has wide stakeholder acceptance.
    Mr. Catlos raised concerns that the proposed language on deflection 
does not include a horizontal deflection allowance or limit (Ex. 203). 
He pointed out that proposed paragraph (b)(3) includes both vertical 
and horizontal load test requirements, and he said that, for 
consistency, final paragraph (b)(4) should include a horizontal load 
test and deflection allowance, in addition to the vertical allowance. 
OSHA disagrees with the commenter for the following reasons. First, the 
final rule focuses on ensuring that guardrail systems maintain a 
minimum height, so that if workers fall into or onto the guardrail they 
are protected from falling over the top rail.
    Second, Mr. Catlos did not say what would constitute an appropriate 
horizontal load test deflection allowance and OSHA believes that 
allowing a horizontal deflection in addition to the vertical allowance, 
may result in failure of the guardrail system to protect workers from 
falling. For example it may break or permanently deform in a way that 
affects the structural integrity of the guardrail system. Such 
deformation may adversely affect the structural integrity or support 
capabilities of the system when workers lean on or fall into the top 
rail of a guardrail that is not perpendicular to the horizontal 
walking-working surface. In this regard, Mr. Catlos did not provide any 
data indicating that horizontal deflection of the guardrail system 
would not result in system failure. Additionally, OSHA is concerned 
that after repeated horizontal deflection, the guardrail could be 
reduced in height to below 39 inches, which is below the minimum height 
requirement that final paragraph (b)(1) requires.
    Third, OSHA believes that allowing a horizontal deflection when 
vertical deflection already reduces the height of guardrail systems may 
put workers at risk of falling over the top rail. This is true 
especially when vertical deflection reduces the height of the top edge 
of a guardrail system to 39 inches. OSHA does not believe Mr. Catlos 
presented a compelling argument to support deviating from the 
construction fall protection standard Sec.  1926.502(b)(4) by adding a 
horizontal deflection allowance to final paragraph (b)(4). Therefore, 
OSHA is adopting in this final rule paragraph (b)(4) as discussed.
    Final paragraph (b)(5), like the proposal, requires that employers 
ensure midrails, screens, mesh, intermediate vertical members, solid 
panels, and other equivalent members, are capable of withstanding, 
without failure, a force of at least 150 pounds applied in any downward 
or outward direction at any point along the intermediate member.
    The existing standard does not contain a strength requirement for 
midrails and this omission has resulted in confusion. OSHA drew the 
proposed requirement from the construction fall protection standard in 
Sec.  1926.502(b)(5). In the preamble to that rule, OSHA explained that 
a strength test of 150 pounds was adequate for intermediate structures 
because they do not serve the same purpose as the top rails of 
guardrail systems (59 FR 40672, 40697 (8/9/1994)). Workers often place 
forces on top rails (e.g., leaning over the top rail) that they do not 
place on intermediate members; if workers fall onto a guardrail, they 
most likely will strike the top rail, not the intermediate member. 
Therefore, OSHA believes that midrails and other intermediate members 
do not need deflection limits.
    The A1264.1-2007 standard (Section 5.6.1) requires that 
intermediate

[[Page 82621]]

members be capable of withstanding a slightly higher horizontal load 
limit (i.e., 160 pounds) applied in a downward (i.e., perpendicular) 
direction at the midpoint and mid-height. OSHA notes that A1264.1-2007 
(Section 5.6.1) also includes a 3-inch horizontal deflection allowance. 
The A10.18-2012 standard does not include a load test for midrails and 
other intermediate members. Although the final rule only requires a 
150-pound load test, OSHA believes, nonetheless, that the final rule is 
more protective than the A1264.1-2007 standard because it does not 
permit a 3-inch horizontal deflection allowance. OSHA did not receive 
any comments on the proposal and adopts it as discussed above.
    Final paragraph (b)(6), like the proposed rule, requires that 
employers ensure guardrail systems are smooth-surfaced to protect 
workers from injury, such as punctures or lacerations, and to prevent 
catching or snagging of workers' clothing. The final rule is based on 
the existing requirement in Sec.  1910.23(e)(1) and (e)(3)(v)(a), and 
A1264.1-2007 (Section 5.4). The final rule also is consistent with the 
construction fall protection standard in Sec.  1926.502(b)(6), as well 
as A10.18-2012 (Section 4.1), which specifies that guardrails be free 
of ``sharp edges, splinters, or similar conditions.''
    The Agency believes it is important that guardrail systems have 
smooth surfaces to prevent injuries. For example, workers can cut or 
puncture their hands or other parts of their bodies, when they grab or 
lean against guardrails that have protruding nails. Similarly, 
protruding nails can catch workers' clothing which can damage 
protective clothing or cause workers to trip or fall. OSHA did not 
receive any comments on the proposed rule and adopts it with the 
changes discussed above.
    Final paragraph (b)(7), like the proposed rule, requires that 
employers ensure the ends of top rails and midrails do not overhang the 
terminal posts, except where the overhang does not pose a projection 
hazard for workers. Top and midrails that extend past the terminal post 
may cause a worker's clothing or tool belt to catch which could result 
in a fall. However, the final rule allows top rails and midrails to 
overhang the terminal posts provided they do not pose a projection 
hazard. For example, employers may shape top rails and midrails so snag 
hazards do not exist. The provision is almost identical to the existing 
rule in Sec.  1910.23(e)(1) and the construction fall protection 
standard in Sec.  1926.502(b)(7). The final rule is consistent with the 
A1264.1-2007 standard at Sections 5.4 and 5.6.3. OSHA did not receive 
any comments on the proposed provision and OSHA adopts the requirement 
as proposed.
    Final paragraph (b)(8), like the proposed and construction fall 
protection standards(Sec.  1926.502(b)(8)), prohibits employers from 
using steel and plastic banding for top rails or midrails in guardrail 
systems. The preamble to the construction fall protection standard 
explained that although banding, particularly steel banding, often can 
withstand a 200-pound load, it also can tear easily if twisted (59 FR 
40698). In addition, workers can cut their hands when they seize steel 
or plastic banding, especially in a fall, since banding often has sharp 
edges. OSHA notes that, like the construction fall protection standard, 
final paragraph (b)(8) does not prohibit the use of steel or synthetic 
rope on top rails and midrails because rope does not have sharp edges. 
OSHA reminds employers, as discussed in final paragraph (b)(15) and 
similar to the construction rule, that manila or synthetic rope used 
for top rails must be inspected as necessary to ensure the rope meets 
the strength requirements of this section. OSHA did not receive any 
comments on the proposed provision and adopts it as discussed above.
    Final paragraph (b)(9), like the proposed rule, requires that 
employers ensure top rails and midrails of guardrail systems are at 
least one-quarter inch in diameter or thickness. The final rule applies 
to all top rails and midrails, regardless of the material employers use 
for those rails. The final rule uses both ``diameter'' and 
``thickness'' because top rails and midrails may have different shapes 
(e.g., cylindrical or rectangular).
    OSHA based final paragraph (b)(9) on the construction fall 
protection standard (Sec.  1926.502(b)(9)). The final paragraph ensures 
that whatever material an employer uses for top rails or midrails, it 
is not so narrow that workers grabbing onto the top rail or midrail may 
cut their hands. Such injuries could occur if employers use narrow, 
high strength rope or wire for top rails or midrails. To eliminate the 
possibility of injury, employers must ensure that all top rails and 
midrails are at least one-quarter inch in diameter/thickness. OSHA did 
not receive any comments on the proposed provision and adopts it is 
discussed above.
    Final paragraph (b)(10) requires that employers using guardrail 
systems at hoist areas place a removable guardrail section or, in the 
alternative, chains or a gate consisting of a top and midrail, across 
the access opening between guardrail sections when workers are not 
performing hoisting operations. This requirement ensures workers do not 
fall through an opening accidentally when materials are not being 
hoisted. It also gives employers flexibility in determining how to 
effectively guard access openings at hoist areas.
    OSHA stresses that employers may use chains and gates as an 
alternative to removable guardrails, but only when the chains and gates 
provide a level of safety that is ``equivalent'' to the level of 
protection provided by removable guardrails. As defined in final Sec.  
1910.21(b), ``equivalent'' means that the alternative means ``will 
provide an equal or greater degree of safety.''
    OSHA clarified final paragraph (b)(10) in response to comments 
stakeholders raised on several issues. First, in response to a comment 
from Mercer ORC (Ex. 254), the final rule clarifies that employers may 
use any of the following three alternatives to guard openings to hoist 
areas:
     Removable guardrail sections;
     Chains that provide protection at least at the top and 
midrail level; or
     A gate consisting of a top rail and midrail.
    A typographical error (i.e., missing comma) in the proposed rule 
made it appear that employers could only use a removable guardrail 
section or ``chain gate.'' However, OSHA believes that both chains and 
gates that include protection at the top rail and midrail levels 
provide protection at hoist areas that is equivalent to removable 
guardrail sections.
    Second, on a related issue, Mercer ORC requested clarification 
about whether a ``chain gate'' must have one or two chains (Ex. 254). 
Final paragraph (b)(10) clarifies that any alternative the employer 
uses to guard the access area when workers are not performing hoisting 
operations must have a top rail and a midrail to provide workers with 
protection that is equivalent to a guardrail system. OSHA does not 
believe that a single bar or chain provides protection that is 
equivalent to a guardrail system. This clarification is consistent with 
OSHA's 1990 proposed rule and letters of interpretation on the use of 
gates and chains to protect workers from falling through access 
openings in hoist areas when they are not performing hoisting 
operations (e.g., Letter to Mr. Stephen Hazelton (5/23/2005 \66\); 
letter to Mr. Erich Bredl (1/15/

[[Page 82622]]

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

    \66\ OSHA letter to Mr. Stephen Hazelton available at: https://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_id=25100.
    \67\ OSHA letter to Mr. Erich Bredl available at: https://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_id=20991.
---------------------------------------------------------------------------

    Finally, Ellis opposed the use of chains to guard access openings 
at hoist areas (Ex. 155). He said chains ``cannot meet the sag 
requirements of the standard and an overbalance hazard can occur'' (Ex. 
155). OSHA does not agree with Ellis' recommendation, noting that 
neither the proposed nor final rules establish a sag requirement for 
chains used at hoisting areas. In addition, OSHA notes that Ellis does 
not explain or provide any information about what constitutes an 
``overbalance'' hazard. Nevertheless, OSHA clarified the language in 
final paragraph (b)(10) to indicate that chains and gates are 
alternatives that employers may use instead of removable guardrail 
sections when they provide a level of safety equivalent to guardrails. 
However, if chains sag so low that they do not meet the minimum 
guardrail height requirements (see final paragraph (b)(1)), or are not 
as effective as a removable guardrail section in preventing workers 
from falling through access openings, employers would have to use 
removable guardrail sections or a gate instead.
    The final rule is almost identical to the proposed rule and 
construction fall protection standard in Sec.  1926.502(b)(10), and 
OSHA adopts it with the clarifications discussed above.
    Final paragraphs (b)(11) through (13) establish criteria for the 
use of guardrail systems to protect employees working near holes. Final 
paragraph (b)(11) requires that employers ensure that when guardrail 
systems are used around holes, they are installed on all unprotected 
sides or edges of the hole. As discussed earlier in this preamble, 
final Sec.  1910.21(b) defines ``hole'' as ``a gap or open space in a 
floor, roof, horizontal walking-working surface, or similar surface 
that is at least 2 inches (5 cm) in its least dimension.''
    The final rule consolidates into one provision the various 
requirements in the existing rule that pertain to criteria for 
protecting workers from falling through holes. Final paragraph (b)(11) 
is almost identical to the proposed rule, and OSHA's construction fall 
protection industry standard in Sec.  1926.502(b)(11). OSHA did not 
receive any comments on the proposed provision and finalizes it as 
discussed.
    Final paragraph (b)(12), like the proposed rule and construction 
fall protection standard (Sec.  1926.502(b)(12)), establishes 
requirements for guardrail systems erected around holes through which 
materials may be passed. The final rule requires:
     When workers are passing materials through a hole, 
employers must ensure that not more than two sides of the guardrail 
system are removed (final Sec.  1910.29(b)(12)(i)); and
     When workers are not passing materials through the hole, 
employers must ensure a guardrail system is installed on all 
unprotected sides and edges, or close the hole with a cover (final 
Sec.  1910.29(b)(12)(ii)).
    The final rule reorganizes and revises the proposed provision to 
make it easier to understand and follow. Final paragraph (b)(12) also 
updates the existing rule in Sec.  1910.23(a)(7), which does not 
contain a provision addressing guarding holes when workers pass 
materials through the holes. The final rule generally is consistent 
with A1264.1-2007 (Section 3.5) and A10.18-2012 (Section 7.1). OSHA 
notes the A1264.1 standard allows employers to use an attendant if a 
hole is uncovered and guardrails are removed. However, OSHA believes 
that requiring guardrails on all sides of the hole is more protective 
than using an attendant.
    The final rule allows employers to remove guardrail sections on no 
more than two sides of a hole when materials are being passed through 
the hole (paragraph (b)(12)(i)). In other words, the final rule does 
not allow the other guardrail sections to be removed during the time 
materials are moving through the hole to protect other workers who may 
be in the area. Final paragraph (b)(12)(ii) also protects workers by 
requiring guardrails on all unprotected sides of the hole or covering 
it when workers are not passing materials through the hole. OSHA did 
not receive any comments on the proposed provision and finalizes it as 
discussed.
    Final paragraph (b)(13), similar to the proposed rule and 
construction fall protection standard (Sec.  1926.502(b)(13)), requires 
that employers using guardrail systems around holes that are points of 
access, such as ladderway openings, protect workers from walking or 
falling into the hole by installing gates at the opening in the 
guardrail system (final paragraph (b)(13)(i)), or offsetting the 
opening from the hole so workers cannot walk or fall into the hole 
(final paragraph (b)(13)(ii)). The final rule also revises the proposed 
criteria for such gates by specifying that they:
     Must be self-closing;
     Must either slide or swing away from the hole; and
     Be equipped with top rails and midrails or equivalent 
intermediate members that meet the requirements in final paragraph (b) 
(final paragraph (b)(13)(i)).
    The final provision is consistent with A1264.1-2007 (Section 3.2 
and E3.2). The ANSI/ASSE standard requires that ladderway floor 
openings be guarded to prevent workers from falling into the hole and 
explicitly notes self-closing gates that swing away from the ladderway 
hole and offsets are two methods of guarding those openings.
    OSHA revised the proposed criteria for guardrail opening gates for 
two reasons. First, the revisions make final paragraph (b)(13) 
consistent with final Sec.  1910.28. As discussed, final Sec.  
1910.28(b)(3)(iv) replaced ``swinging gate'' with ``self-closing gate'' 
to give employers flexibility to use sliding gates at guardrail access 
openings. OSHA believes sliding gates that are self-closing are as 
effective as swinging gates that self-close and are readily available 
and in use today.
    Second, the revisions in the final rule respond to stakeholder 
questions and recommendations urging OSHA to identify more clearly the 
criteria for access opening gates must meet (Exs. 68; 254; 366). For 
example, Eric Bredl, with Intrepid Industries Inc., a safety gate 
manufacturer, said the final rule needs to clarify and define ``safety 
gate (swinging gate)'' used at openings in guardrail systems used 
around points of access holes (e.g., ladderways):

    There have been many interpretations as to what constitutes a 
safety gate. It is not well defined, nor has it been well defined 
for several years (Ex. 68).

    Mr. Bredl also requested that OSHA clarify whether gates used at 
guardrail openings must be equipped with midrails:

    [T]he OSHA wording of this proposal does not clarify that the 
space to be protected must conform to the guardrail. Does OSHA want 
to allow a single member (chain or single bar) or two bars that are 
less than 19'' apart as adequate protection for ladderway openings? 
(Ex. 366).

    Similarly, Mercer ORC said OSHA needs to define the ``specific type 
of gate'' it intends to require for gates used for guardrail openings 
near points of access holes, and answer the following questions about 
midrails:

    Must a ``swinging gate'' have both a top rail and midrail, like 
a standard railing? Or is a gate with only a top rail adequate to 
prevent an employee from walking ``directly into the hole''? The 
existing rule is silent on the issue, but OSHA implied in the 1990 
proposal and,

[[Page 82623]]

in subsequent discussions and letters of interpretation, has stated 
that a two-rail configuration is required (Ex. 254).

    Mercer ORC opposed requiring that guardrail opening gates be 
equipped with midrails, saying that several companies and a safety gate 
manufacturer indicated that OSHA's ``interpretation has not been 
accepted by a large number of employers'' (Ex. 254).
    Although Mr. Bredl acknowledged that when OSHA first issued the 
1990 proposed rule, which would have required that guardrail opening 
gates comply with guardrail requirements (i.e., have tops rails and 
midrails), ``this was `foreign' to industry'' (Ex. 366). However, he 
added that ``[s]ince then, a majority of protection devices have both a 
top rail and a midrail similar to that of the guardrail'' (Ex. 366).
    The purpose of guardrail opening gates used around holes that serve 
as points of access (e.g., ladderways) is, when open, to provide a 
means of access to holes, and, when closed, to provide guardrail 
protection that meets of the guardrail criteria in final paragraph (b). 
Accordingly, final paragraph (b) requires, among other things, that 
guardrails have both top rails and midrails or equivalent intermediate 
members, such as screens, solid panels, or intermediate vertical 
members, to ensure that closed access gates provide adequate guardrail 
protection.
    OSHA believes that employers should not experience difficulty 
complying with the final rule. If an existing gate does not have a 
midrail or equivalent intermediate member, OSHA believes it is feasible 
for employers to add one. Therefore, OSHA adopts final paragraph 
(b)(13) with the revisions and clarification discussed above.
    Final paragraph (b)(14), which is almost identical to the proposal, 
and the construction fall protection standard in Sec.  1926.502(b)(14), 
requires that employers ensure guardrail systems on ramps and runways 
are installed along each unprotected side or edge. The existing rule in 
Sec.  1910.23(c)(2) and A1264.1-2007 (Section 5.2) contain similar 
requirements for runways, but do not specifically address guarding 
ramps. OSHA believes it is appropriate to apply this provision to ramps 
as well as runways because both walking-working surfaces can have open 
sides. In addition, like runways, ramps can have open sides that are 
four feet or more above a lower level, which presents a fall hazard to 
workers. OSHA did not receive any comments on the proposal and adopts 
it as discussed above.
    Final paragraph (b)(15), similar to the proposed rule, requires 
that employers ensure manila and synthetic rope \68\ used for top rails 
or midrails of guardrail systems are inspected as frequently as 
necessary to ensure that the rope continues to meet the strength 
requirements in final paragraphs (b)(3) (top rails) and (b)(5) 
(midrails) of this section. OSHA believes inspecting manila and 
synthetic rope is important to ensure that it remains in serviceable 
condition, and that workers are not at risk of harm due to damage or 
deterioration. OSHA drew this requirement from the Agency's 
construction fall protection standard in Sec.  1926.502(b)(15). The 
existing rule does not include a similar provision.
---------------------------------------------------------------------------

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

    OSHA received two comments on the proposed provision. The National 
Institute for Occupational Safety and Health (NIOSH) recommended that 
OSHA incorporate in final paragraph (b)(15) the strength requirements 
for midrails (final paragraph (b)(5)) in addition to the strength 
requirements for top rails (final paragraph (b)(3)) (Ex. 164). OSHA 
agrees and incorporates the midrail strength requirements in final 
paragraph (b)(15).
    Peter Catlos opposed allowing employers to use manila, plastic, or 
synthetic rope for top rails and midrails. He pointed out, ``Based on 
the mechanical characteristics of these materials, such as high 
elongation and high elastic recovery, guardrails could be constructed 
that meet the requirements of the Sec.  1910.29(b) as written, yet 
offer no practical restraint whatsoever, thereby creating an unsafe 
condition'' (Ex. 203). OSHA believes that requiring employers to 
inspect ropes ``as necessary'' helps to ensure that the top rails and 
midrails made of such rope will continue to comply with the strength 
requirements in final Sec.  1910.29(b)(3) and (5).
    Final paragraph (b) includes an informational note that OSHA 
proposed as paragraph (b)(16). The note reminds employers that criteria 
and practice requirements for guardrail systems on scaffolds used in 
general industry are in the construction scaffold standards (29 CFR 
part 1926, subpart L, Scaffolds). This provision is a companion to 
final Sec.  1910.28(b)(12)(i), which requires that employers protect 
employees working on scaffolds in accordance with the construction 
scaffold standards. These companion provisions ensure that employers 
who use scaffolds to perform both general industry and construction 
activities will have one consistent set of requirements to follow. OSHA 
believes this approach will increase understanding of, and promote 
compliance with, the final rule, a conclusion Ameren supported because 
it would promote consistent application for employers who use scaffolds 
to perform both general industry and construction activities (Ex. 189). 
OSHA did not receive any comments opposing the proposed provision and 
adopts the note as discussed.
    Ellis recommended OSHA include additional guardrail criteria in the 
final rule (Ex. 155). He recommended prohibiting guardrails from being 
used as personal fall protection anchorages unless approved and marked 
by a registered structural engineer, and that horizontal rails in wood 
guardrails be attached on the inside of the posts so the nails are not 
pushed out in a fall.
    With regard to using guardrails as personal fall protection 
anchorages, final Sec.  1910.140 requires that anchorages be capable of 
supporting 5,000 pounds. Therefore, unless the guardrail is designed to 
meet all the requirements for anchorages in final Sec.  1910.140, they 
already are prohibited from such use.
    Although OSHA agrees with Ellis on the placement of wood rails, the 
Agency does not believe it is necessary to regulate guardrail systems 
to this detail. Employers are responsible for ensuring that guardrail 
systems are erected to meet the strength requirements specified in the 
final rule.
Paragraph (c)--Safety Net Systems
    Final paragraph (c), like the proposed rule, requires that general 
industry employers ensure all safety net systems they use meet the 
criteria and practice requirements in 29 CFR part 1926, subpart M, Fall 
protection. Neither the existing subpart D nor other provisions in 29 
CFR part 1910 address safety net systems.
    Final Sec.  1910.28 allows employers to use safety net systems to 
protect workers on several types of elevated walking-working surfaces, 
including unprotected sides and edges, wall openings, and low-slope 
roofs. To ensure that the requirements for safety net systems used in 
general industry are consistent with, and are as protective as, the 
construction requirements, OSHA requires employers working in general 
industry to follow the construction criteria and practice requirements 
for safety net systems. Incorporating by reference the construction 
safety net system requirements also eliminates unnecessary repetition 
of the construction requirements.

[[Page 82624]]

    OSHA received two comments on this requirement, both of which 
supported making the general industry requirements for safety net 
system criteria and practices as protective as those in the 
construction fall protection standard in Sec.  1926.502(c) (Exs. 155; 
226). The American Federation of State, County and Municipal Employees 
(AFSCME) said the requirements for safety net systems used in general 
industry should be ``no less'' protective than the provisions in the 
construction standard (Ex. 226). In the same comment, AFSCME raised an 
issue about the difference in testing requirements for safety net 
systems and personal fall arrest systems and anchorages, saying the 
400-pound drop-test requirement for safety net systems is ``stricter'' 
than the requirement for personal fall arrest systems and anchorages 
(Ex. 226). OSHA notes the 400-pound drop-test requirement is consistent 
with the construction fall protection standard in Sec.  
1926.502(c)(4)(i).
    OSHA agrees with the commenters that the safety net system 
requirements in the final rule should be as protective as the 
requirements in the construction fall protection standard. In addition, 
OSHA believes that making the general industry and construction 
requirements consistent will make the rule easier to understand and 
follow for those employers who perform both general industry and 
construction operations.
    In the proposal, OSHA also requested comment about whether the 
final rule should require that employers meet the requirements for 
safety net systems in the construction fall protection standard or list 
the specific construction safety net system requirements in the final 
rule (75 FR 28895). Ellis supported incorporating the construction 
standard by reference (Ex. 155). AFSCME, however, recommended that OSHA 
include the specific safety net system criteria and practice 
requirements in final Sec.  1910.29(c), stating, ``Referencing the 
construction standard, CFR Sec.  1926.502(c), may not be helpful to 
employers who normally do not use the construction standards; therefore 
information on the requirements and testing of the safety net systems 
should be covered in the General Industry Standard'' (Ex. 226).
    After reviewing the record, OSHA decided to incorporate by 
reference into this final rule the safety net system requirements in 
the construction fall protection standard. OSHA notes that the final 
rule also incorporates by reference the construction scaffold 
requirements. OSHA does not agree with AFSCME that general industry 
employers who do not use construction standards will have a difficult 
time obtaining them. OSHA's construction standards are readily 
available online at www.osha.gov, along with other guidance materials, 
which will facilitate obtaining, and complying with, the construction 
safety net provisions. In addition, OSHA believes that having a single 
set of safety net system requirements to follow should make compliance 
easier for employers who perform both general industry and construction 
activities.
    Ellis raised another issue about safety nets. He recommended that 
the final rule allow the use of ``platform nets'' in general industry, 
provided those nets also complied with the requirements in the 
construction standard in Sec.  1926.502(c). He observed, ``[Platform 
nets] are not only for catching falling workers they are also for 
working from if the mesh or fabric is tight enough to prevent the foot 
from going through. These nets . . . are finding considerable use 
around the world for construction and maintenance work and provide both 
access and a walking-working surface'' (Ex. 155).
    The final rule does not prohibit the use of platform nets. However, 
if employers also use platform nets for fall protection, the nets must 
meet the criteria and practice requirements in the construction fall 
protection standard.
Paragraph (d)--Designated Areas
    Final paragraph (d), like the proposed rule, establishes criteria 
and practices for ``designated areas,'' which the final rule in Sec.  
1910.21(b) defines as ``a distinct portion of a walking-working surface 
delineated by a warning line in which employees may perform work 
without additional fall protection.'' Designated areas are non-
conventional controls for addressing fall hazards.
    As mentioned earlier in this preamble, final Sec.  1910.28(b)(13) 
limits the use of designated areas to one situation: Work on low-slope 
roofs. The final rule in Sec.  1910.21(b) defines ``low-slope roof'' as 
``a roof that has a slope less than or equal to a ratio of 4 in 12 
(vertical to horizontal).'' Final Sec.  1910.28(b)(13) limits the use 
of designated areas to work on low-slope roofs performed at least six 
(6) feet from the roof edge and requires that employers use 
conventional controls (e.g., guardrail systems, safety net systems, 
personal fall arrest systems) if workers are less than six (6) feet 
from the roof edge. In the area that is 6 feet to less than 15 feet 
from the edge, employers may use designated areas when their employees 
perform work that is both temporary and infrequent. Where employers 
perform work that is 15 feet or more from the edge, they also can use a 
designated area for any work (i.e., without regard to frequency or 
duration of the work). In addition, the final rule does not require 
that employers provide any fall protection or use a designated area 
when employees perform work that is both temporary and infrequent and 
the work is 15 feet or more from the roof edge.
    Proposed Sec.  1910.28(b)(1), (7), and (13) allowed general 
industry employers to use designated areas in additional situations: On 
unprotected sides and edges of walking-working surfaces, at wall 
openings, and on walking-working surfaces the final rule does not 
specifically address. However, as discussed in the preamble to Sec.  
1910.28, OSHA believes that employers must use designated areas, like 
warning line systems in the construction fall protection standard, only 
in ``a few, very specific situations'' (see, e.g., letter to Mr. Keith 
Harkins (11/15/2002) \69\). Allowing the use of designated areas only 
on low-slope roofs makes the final rule consistent with limited use 
specified by the construction standard for non-conventional controls. 
(See further the discussion of designated areas in the preamble to 
final Sec.  1910.28(b).)
---------------------------------------------------------------------------

    \69\ Letter to Mr. Keith Harkins available on OSHA's Web site 
at: https://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_id=24552.
---------------------------------------------------------------------------

    Final paragraph (d)(1) establishes general criteria and practice 
requirements for the use of designated areas on low-slope roofs. Final 
paragraph (d)(1) revises the proposed requirements by deleting, as 
unnecessary, the language in proposed paragraph (d)(1)(iii) requiring 
employers use designated areas only on ``surfaces that have a slope 
from horizontal of 10 degree or less,'' since that is now contained in 
the definition of a low-slope roof.
    Final paragraph (d)(1)(i), like the proposed rule, requires that 
employers ensure workers remain within the designated area during work 
operations. Going outside of the designated area will increase the risk 
of a worker falling off the roof edge. If workers must go outside the 
designated area, they must be protected by conventional fall protection 
systems. OSHA did not receive any comments on the proposed requirement 
and finalizes it as discussed.
    Final paragraph (d)(1)(ii), similar to the proposed rule, requires 
that employers delineate the perimeter of designated areas with a 
warning line.

[[Page 82625]]

The final rule in Sec.  1910.21(b) defines ``warning line'' as ``a 
barrier erected to warn employees that they are approaching an 
unprotected side or edge, and which designates an area in which work 
may take place without the use of other means of fall protection.''
    Final paragraph (d)(1)(ii) also specifies warning lines may consist 
of ropes, wires, tape, or chains that employers ensure meet the 
requirements of final paragraphs (d)(2) and (3). Final paragraphs 
(d)(2) and (3) contain specific requirements for warning lines, for 
example, they must be installed so the lowest point of the line, 
including sag, is not less than 34 inches (86 cm) and not more than 39 
inches (99 cm) above the walking-working surface (final paragraph 
(d)(2)(i)).
    The final rule generally is consistent with the requirements for 
warning line systems in the construction fall protection standard in 
Sec.  1926.502(f)(1).
    Northrop Grumman Shipbuilding (NGS) recommended that OSHA give 
employers more flexibility to demarcate designated areas by using 
materials other than ropes, wires, tape, chains, and supporting 
devices, stating:

    [W]e recommend that a contrasting color marking on the floor or 
roof surface be another acceptable means of delineating the 
designated area. Note that this is similar to the options provided 
in proposed 1910.28(b)(8) for pits. Colored markings are the best 
means to permanently mark pathways and work areas for maintenance of 
rooftop equipment, thus eliminating the hazards associated with 
getting stanchions and rope or chain to the job site. Stanchions 
typically cannot be permanently attached to rooftops because they 
will damage the roof surface and they cannot be left in place 
because they pose a projectile hazard in the event of high winds 
(Ex. 180).

    OSHA agrees that using warning line materials made of contrasting 
colors, such as brightly-colored ropes or tape makes the line ``clearly 
visible,'' which final paragraph (d)(2)(iv) requires. However, OSHA 
believes that painting the surface of the roof instead of attaching 
warning line materials to supporting devices does not provide a clearly 
visible perimeter throughout the designated area as required by final 
paragraph (d)(2)(iv). To be clearly visible, OSHA believes materials 
used to demarcate a designated area need to be high enough above the 
walking-working surface to be visible from a distance at least 25 feet 
away, as well as anywhere within the designated area, and not obscured 
by materials, tools, and equipment that may be in the designated area.
    NGS also pointed out that the proposed rule would allow employers 
to apply floor markings, instead of erecting warning lines, to 
demarcate vehicle repair, services, and assembly pits (see proposed and 
final Sec.  1910.28(b)(8)(ii)). OSHA does not consider the working 
conditions on low-slope roofs to be similar enough to the working 
conditions at vehicle repair, service, and assembly pits to permit the 
use of floor markings. OSHA allows employers to apply floor markings to 
delineate vehicle repair, service, and assembly pits that are less than 
10 feet deep because the pits often are so close together that using 
warning lines would impede movement of vehicles and equipment around 
and over the pits, which is not true for work on low-slope roofs.
    Final paragraph (d)(2) establishes criteria and practice 
requirements for warning lines. As part of these requirements, final 
paragraph (d)(2)(i) specifies that employers ensure warning lines have 
a minimum breaking strength of 200 pounds. The proposed rule in 
paragraph (d)(2)(ii) would have required that employers ensure the 
warning line has a 500-pound minimum breaking or tensile strength and, 
after being attached to the stanchions, is capable of supporting the 
loads applied to the stanchions as prescribed in proposed paragraph 
(d)(2)(i). Proposed paragraph (d)(2)(i) also would have required that 
stanchions be capable of resisting, without tipping over, a force of at 
least 16 pounds applied horizontally against the stanchion. The force 
would have been required to be applied 30 inches above the work 
surface. OSHA drew the proposed requirement from the construction 
warning line system requirements for roof work performed on low-slope 
roofs (see Sec.  1926.502(f)(2)(iv)). OSHA explained in the proposal 
that the requirement would ensure the warning line is ``durable and 
capable of functioning as intended, regardless of how far apart the 
stanchions are placed'' (75 FR 28896). In addition, OSHA said the 
proposed strength requirement would ensure that employers use 
substantial materials for warning lines, such as chains, ropes, or 
heavy cord. OSHA also requested comment on the appropriateness of 
requiring warning lines to have a tensile strength of 500 pounds 
(similar to construction warning line system requirements), which 
``assures the line is made of material more substantial than string'' 
(75 FR 28896).
    Several stakeholders indicated carrying stanchions that meet the 
proposed strength requirement would be infeasible or create a greater 
hazard for workers (Exs. 165; 171; 296). For example, the National 
Chimney Sweep Guild (NCSG) said, ``The technician would be exposed to a 
greater fall hazard while transporting numerous stanchions weighing 
over 50 pounds to the roof.'' Later, NCSG stated, ``Stanchions would 
not meet the specified stability criterion unless they were either 
weighted to the point where they create an unacceptable fall hazard or 
attached to the roof'' (Ex. 296). The Sheet Metal and Air Conditioning 
Contractors' National Association (SMACNA) agreed, stating, ``The 
placement of a designated area by the construction of a barrier system 
(rope, wire or chain supported by stanchions meeting specific design 
criteria) would create more safety hazards due to the transporting of 
barrier materials up to the roof'' (Ex. 165). Verallia recommended that 
OSHA also reconsider the companion requirement in proposed paragraph 
(d)(2)(i) addressing the stability of stanchions, noting:

    With respect to the specified size of the stanchions, 16 pounds 
resistance may be insufficient in some cases, while . . . completely 
unnecessary in others. The further the area is from the unprotected 
edge, the less is required to adequately protect (or warn) the 
affected employees.
    The size and form of stanchions (or comparable barriers) should 
be left to the discretion of the employer, as long as they are 
effective in putting the employee on notice that a fall hazard may 
exist. . . . Moreover, there is an additional concern that the use 
and handling of 16-pound resistant stanchions could itself present 
an independent hazard and/or cause damage to roofs or working 
surfaces (Ex. 171).

After analyzing the entire rulemaking record on designated areas, OSHA 
has determined that the proposed 500-pound breaking strength 
requirement is not necessary to warn workers they are approaching a 
fall hazard on a low-slope roof. Therefore, in the final rule OSHA 
replaces the proposed requirement with a 200-pound minimum breaking 
strength requirement, which is consistent with the requirement for 
control lines in controlled access zones in the construction fall 
protection standard in Sec.  1926.502(g)(3)(iii). OSHA believes that 
the strength requirement in the final rule, combined with the other 
requirements in final paragraph (d)(2), will ensure that the 
delineation of designated areas is sturdy and provides adequate warning 
to workers.
    In addition, in response to these commenters, the final rule also 
deletes the stanchion stability requirement specified by proposed 
paragraph (d)(2)(i), which would have required that employers ensure 
stanchions are ``capable of resisting, without tipping over, a force of 
at least 16 pounds (71

[[Page 82626]]

N) applied horizontally against the stanchion,'' The Agency drew 
proposed paragraph (d)(2)(i) from the construction warning line system 
requirements in Sec.  1926.502(f)(2)(iii). OSHA believes this deletion 
will give employers greater flexibility in selecting supporting devices 
to delineate designated areas. OSHA will consider employers who erect 
designated area warning lines that meet the requirements of proposed 
paragraphs (d)(2)(i) and (d)(2)(ii) (i.e., using stanchions that meet 
the 16-pound force resistance) to be in compliance with the final rule; 
however, OSHA notes the final rule does not require that stanchions 
meet those requirements.
    Final paragraph (d)(2)(ii), like proposed paragraph (d)(2)(iv), 
requires that employers install warning lines so the lowest point, 
including any sag, is not less than 34 inches or more than 39 inches 
above the walking-working surface. The final rule is consistent with 
the warning line system requirement in the construction fall protection 
standard in Sec.  1926.502(f)(2)(ii).
    NGS recommended that the final rule permit employers to use 
contrasting color marking on the floor or roof instead of erecting 
warning lines at 34 to 39 inches above the walking-working surface (Ex. 
180). As discussed above, the final rule does not include NGS' 
recommendation. OSHA believes the warning line height specified in the 
final rule is necessary to adequately warn workers that they are 
approaching the boundary of a designated area. At a height of between 
34 to 39 inches, warning lines will be more visible than if employers 
paint them on the surface of the roof. Moreover, at the height the 
final rule requires, warning lines will be visible even if equipment, 
tools, or objects are near the warning line.
    OSHA also rejects NGS's recommendation because painting warning 
lines on surfaces makes them permanent, thus suggesting that employers 
may use designated areas for any operation regularly or routinely 
performed on a low-slope roof, rather than performing work in these 
areas that is both temporary and infrequent. As discussed earlier in 
this preamble, employers must provide conventional fall protection for 
routine, regular, or frequent work performed within 15 feet of the edge 
of low-slope roofs.
    Final paragraph (d)(2)(iii) requires that employers ensure warning 
lines are supported in such a manner that pulling on one section of the 
line will not result in slack being taken up in any adjacent sections 
causing the line to fall below the limit of 34 inches at any point, as 
specified in (d)(2)(ii). Proposed paragraph (d)(2)(iii) and the 
construction fall protection standard in Sec.  1926.502(f)(2)(v) 
require that taking up slack in adjacent sections of a warning line 
must not cause the supporting devices to tip over. The final rule 
revises the proposed provision for two reasons. First, the revised 
language ensures that the warning line will be visible at all times 
because it will remain at the height specified in final paragraph 
(d)(2)(ii). Second, the revisions ensure employers remain in compliance 
with final paragraph (d)(2)(ii). OSHA did not receive any comments on 
the proposal and adopts the requirement with the revisions discussed 
above.
    Final paragraph (d)(2)(iv) requires that employers ensure warning 
lines are clearly visible from a distance of 25 feet away and anywhere 
within the designated area. The final rule clarifies proposed paragraph 
(d)(2)(v) by recasting the provision in plain language that is easier 
to understand than the proposed paragraph.
    The proposed rule would have required that employers ensure the 
warning line is clearly visible from any unobstructed location within 
the designated area up to 25 feet away, or at the maximum distance a 
worker may be positioned away from the warning line, whichever is less. 
The final rule states more clearly than the proposed provision that 
employers must erect warning lines that are clearly visible within the 
designated area, regardless of where the employee is working in that 
area. That is, the warning line must be clearly visible when the worker 
is approaching the line. Whether the designated area is large or small, 
the final rule also requires that the warning line be visible at least 
25 feet away. For large designated areas, requiring that warnings lines 
be visible at least 25 feet away ensures that workers have adequate 
warning when approaching fall hazards. Such warning is particularly 
necessary when workers use mobile mechanical equipment that can cover 
distances quickly. If workers cannot clearly see warning lines until 
the mobile equipment they are operating is near the boundary of the 
designated area, they may not be able to stop in time to prevent going 
past the boundary or over the edge of the roof. For designated areas 
that are small and close to the roof edge (e.g., 6 feet from the edge), 
the 25-foot minimum visibility range adequately prepares workers for 
approaching the hazard zone.
    As the proposal noted, there is a possibility that a portion of the 
warning line could be obstructed. This remains true in the final rule. 
As long as the boundaries of the designated area are clearly visible 
within 25 feet and anywhere within the area, obstructions of some 
portion of the line are permissible.
    The construction fall protection standard in Sec.  
1926.502(f)(2)(i) and (g)(3)(i) requires employers to flag warning 
lines with high-visibility material at least every 6 feet to ensure 
that the lines are visible. OSHA believes there is a greater need for 
visibility aids in construction operations because the work may be at 
leading edges or other areas close to the roof edge. Also, construction 
work is more likely than work in general industry to shift from one 
part of the roof to another because construction work often involves 
performing tasks that are not temporary and infrequent. Therefore, OSHA 
believes that it is appropriate to give general industry employers 
greater flexibility to select the measures they believe will make the 
warning line ``clearly visible.'' Accordingly, employers are free to 
comply with the final rule by flagging warning lines.
    Final paragraph (d)(2)(v), like proposed paragraph (d)(3)(i), 
requires that employers erect warning lines as close to the work area 
as the task permits. This provision, like final paragraph (d)(2)(iv), 
helps to make warning lines as clearly visible as possible without 
interfering with the work employees perform. It also eases compliance 
for employers. Instead of placing warning lines 6 feet or 15 feet 
around the entire roof, employers can simply erect the warning line 
around the specific area where employees are working. This will make 
compliance easier for many employers, one of whom said, ``Some flat 
roofs in general industry settings could be the size of several 
football fields'' (Ex. 207).
    Finally, OSHA believes the performance-based approach in the final 
rule gives employers flexibility to determine the distance that makes 
the warning line most clearly visible, without interfering with the 
work being performed. OSHA did not receive any comments on the proposed 
requirement and adopts it with the clarification discussed above.
    Final paragraph (d)(2)(vi), similar to proposed paragraph 
(d)(3)(ii), requires that employers erect warning lines not less than 6 
feet (1.8 m) from the roof edge for work that is both temporary and 
infrequent, or not less than 15 feet (4.6 m) for other work. OSHA 
believes the minimum distance of six feet for work that is temporary 
and infrequent provides an adequate safety zone that allows workers to 
stop moving toward the fall hazard after reaching or

[[Page 82627]]

contacting the perimeter line of the designated area and provides an 
adequate safety zone should a worker trip and fall at the edge of the 
designated area. This final provision is almost identical to the six-
foot safety zone required for warning line systems in the construction 
fall protection standard in Sec.  1926.502(f)(1)(i). OSHA added the 
requirement that warning lines not be erected less than 15 feet from 
the roof edge for other work to be consistent with final paragraph 
Sec.  1910.28(b)(13)(iii) and OSHA's enforcement policy discussed 
above. OSHA did not receive any comments on the proposed requirement 
and adopts it as discussed.
    Final paragraph (d)(3), like proposed paragraph (d)(3)(iii), 
establishes minimum distances from an unprotected side or edge for 
erecting warning lines when workers use mobile mechanical equipment to 
perform work that is both temporary and infrequent in a designated 
area. In such cases, the final rule requires that employers erect 
warning lines: (1) Not less than 6 feet from the unprotected side or 
edge that is parallel to the direction in which workers are using the 
mechanical equipment; and (2) not less than 10 feet from the 
unprotected side or edge that is perpendicular to the direction in 
which workers are operating the mechanical equipment. When mobile 
mechanical equipment is used to perform other work, a warning line must 
be erected at least 15 feet from the roof edge.
    The purpose of this final provision is to provide additional 
distance for the worker to stop the mechanical equipment from moving 
toward an unprotected side or edge. The 10-foot minimum distance 
provides a safety zone that takes into account the momentum of the 
equipment workers may be using. Final paragraph (d)(3), which OSHA 
renumbered in the final rule to make it easier to follow, is consistent 
with the construction fall protection standard in Sec.  
1926.502(f)(1)(ii). OSHA did not receive any comments on the proposed 
provision and finalizes it as discussed above.
    Proposed paragraph (d)(4), which the final rule does not retain, 
required that employers provide clear access paths to designated areas. 
The proposal specified that the path have warning lines on both sides 
attached to stanchions that comply with the strength, height, and 
visibility requirements in proposed paragraph (d)(2). OSHA drew the 
proposed rule from the warning line system requirements in the 
construction fall protection standard in Sec.  1926.502(f)(1)(iii) and 
(iv).
    OSHA requested comment on whether the proposed requirement is 
necessary to protect general industry workers when they travel to and 
from designated areas. AFSCME supported the proposed requirement, 
stating, ``We believe that such an access path to the designated area 
is absolutely necessary for work on roofs when other fall protection is 
not provided'' (Ex. 226). Other commenters recommended that OSHA give 
employers more flexibility in delineating access paths to designated 
areas (Exs. 180; 189). In this regard, NGS recommended allowing 
employers to use contrasting color markings painted on the roof to 
designate access paths (Ex. 180), while Ameren said OSHA should 
consider allowing employers to use rubber mats for access paths (Ex. 
189).
    Several commenters recommended that OSHA delete the proposed 
requirement. Ameren urged OSHA to delete the proposed requirement 
because it ``could be burdensome if the path of travel to a work area 
on a roof is down the center of the roof especially if the delineation 
must be along the entire route and not just around the `work area' '' 
(Ex. 189). Clear Channel Outdoor, Inc. (CCO) said the proposed 
requirement was not necessary:


    Based upon CCO's experience that employees do not trip or fall 
when traversing to and from the access ladder, CCO does not believe 
that installing an access path with safety cables or stations adds 
to safety in any measurable way. Accordingly, CCO supports the 
designated work area concept, but does not believe that a designated 
access path is necessary (Ex. 121).

Some commenters said the proposed access path requirement was not 
necessary because most of the work they perform on low-slope roofs is 
not near the edge of the roof (Exs. 165; 189; 236).
    Based on stakeholder comments and other information in the record, 
OSHA decided not to retain proposed paragraph (d)(4) in the final rule. 
OSHA agrees with commenters that the proposed access path requirement 
is not necessary, especially on large roofs that require employers to 
erect long access paths. Evidence in the record suggests that many low-
slope roofs in general industry are quite large. For example, Edison 
Electric Institute (EEI) commented that ``[s]ome flat roofs in a 
general industry setting could be the size of several football fields'' 
(Ex. 207). Although OSHA is deleting the proposed access path 
requirement, the Agency stresses that employers still must train 
workers, in accordance with final Sec.  1910.30, about the potential 
fall hazards in the work area, which includes accessing the work area, 
and the proper set-up and use of designated areas.
Paragraph (e)--Covers
    Final paragraph (e) addresses criteria and practices for covers 
that employers use to protect workers from falling into a hole in a 
walking-working surface, including holes in floors, roofs, skylights, 
roadways, vehicle aisles, manholes, pits, and other walking-working 
surfaces. The final rule consolidates and updates the cover criteria 
and practice requirements in the existing rule (e.g., existing 
Sec. Sec.  1910.23(a)(5), (8), and (9), and 1910.23(e)(7) and (8)). In 
addition, the final rule consolidates the proposed cover requirements, 
which are similar to those in the construction fall protection standard 
in Sec.  1926.502(i).
    Final paragraph (e)(1) requires that employers ensure any cover 
they use to prevent workers from falling into a hole in a walking-
working surface is capable of supporting, without failure, at least 
twice the maximum intended load that may be imposed on the cover at any 
one time. The final rule clarifies and simplifies the proposed rule, 
and makes it consistent with other provisions in the final rule, by 
replacing the proposed language with ``maximum intended load,'' which 
OSHA consistently uses throughout the final rule. The final rule in 
Sec.  1910.21(b) defines ``maximum intended load'' as the total load 
(weight and force) of all employees, equipment, vehicles, tools, 
materials, and other loads the employer reasonably anticipates to be 
applied to a walking-working surface at any one time; in this case, the 
walking-working surface is a cover. The final rule is consistent with 
A10.18-2012 (Section 7.1.1.4), which requires that trench and manhole 
covers support at least twice the maximum intended load.
    The language in the final rule differs from the proposal, the 
construction fall protection standard, and the existing rule. The 
proposed and construction rules require that covers in roadways and 
vehicle aisles be capable of supporting ``twice the maximum axle load 
of the largest vehicle expected to cross over the cover'' (see proposed 
paragraph (e)(1) and Sec.  1926.502(i)(1)), and that all other covers 
support ``twice the weight of employees, equipment, and materials 
imposed on the cover at any one time'' (proposed paragraph (e)(2)). The 
existing rule in Sec.  1910.23(e)(7) states that trench, conduit, and 
manhole covers must support a truck rear-axle load of at least

[[Page 82628]]

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

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

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

    A cover may be a plywood board or perhaps OSB or temporarily and 
more dangerously a section of drywall to keep out dust and weakens 
when wet. The new to America Platform Nets should be accommodated 
for maintenance work to allow walkable fabric covers to be used for 
walking across holes and open spaces (Ex. 155).

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

[[Page 82629]]

construction stairways standard in Sec.  1926.1052(c)(6) and A10.18-
2012 (Section 6.2). The A1264.1-2007 standard, on the other hand, 
specifies that the handrail height must be not less than 34 inches or 
not more than 38 inches as measured from the tread to the top of the 
handrail.
    OSHA revised the final rule in response to a comment from the 
National Fire Protection Association (NFPA), which pointed out that the 
NFPA 101 Life Safety Code, an ``ANSI-accredited national expert code,'' 
permits a 38-inch maximum handrail height (Ex. 97). NFPA recommended 
that the final rule also allow a 38-inch handrail height so handrails 
built in accordance with the NFPA 101-2012, Life Safety Code (Ex. 385) 
would not be ``non-compliant'' (Ex. 97). NFPA also said that their 
recommendation was ``technically sound as borne out by the research of 
Jake Pauls while he was on staff at the National Research Council 
Canada in the 1970s and 1980s'' (Ex. 97). In addition, NFPA appeared to 
suggest a 38-inch maximum handrail height would provide support for a 
broader range or workers (i.e., taller workers) without compromising 
the protection of any worker (Ex. 97).
    OSHA agrees that handrails built in accordance with NFPA 101 are 
acceptable, and is adopting this recommendation in the final rule; 
therefore, in the final rule the Agency increased the maximum handrail 
height by one inch, from 37 inches to 38 inches, which Figure D-12 
illustrates. Since both the existing and proposed handrail height 
requirements come within revised final paragraph (f)(1)(i), OSHA does 
not expect that employers will have any problems complying with the 
final rule. The final rule simply provides employers with greater 
compliance flexibility.
    Final paragraph (f)(1)(ii) establishes the height requirement for 
stair rail systems. Employers must ensure:
     The height of stair rail systems installed before the 
effective date of the final rule, which is January 17, 2017, is not 
less than 30 inches as measured from the leading edge of the stair 
tread to the top surface of the top rail (paragraph (f)(1)(ii)(A)); and
     The height of stair rail systems installed on or after the 
effective date is not less than 42 inches as measured from the leading 
edge of the stair tread to the top surface of the top rail (paragraph 
(f)(1)(ii)(B)).
    The final rule revises the requirements in both the existing and 
proposed rules. The existing rule in Sec.  1910.23(e)(2) requires that 
the height of a stair railing be not less than 30 inches nor more than 
34 inches as measured from the upper surface of the stair tread to the 
top edge of the top rail. The final rule eliminates the maximum height 
requirement for existing stair rail systems.
    The proposed rule would have raised the minimum height of new and 
replacement stair rails to 36 inches. The final rule, however, requires 
that new and replacement systems be at least 42 inches in height. In 
the proposed rule, OSHA explained that a 36-inch minimum height would 
make the general industry requirement consistent with the construction 
stairways standard in Sec.  1926.1052(c)(3), and would afford a 
reasonable level of safety to workers (75 FR 28897). However, OSHA also 
discussed a University of Michigan study indicating that the minimum 
stair rail system height should be 42 inches, and also suggested that 
even 42 inches may not be adequate (Ex. OSHA-S041-2006-0666-0004). OSHA 
also noted that A1264.1-2007 (Section 5.5) establishes a 42-inch 
maximum stair rail system height. The Agency requested comment about 
raising the minimum stair rail system height to 42 inches.
    OSHA received one comment. NFPA recommended raising the minimum 
height of stair rail systems to 42 inches, which would make the final 
rule consistent with the NFPA 101 Life Safety Code (Ex. 97). NFPA 
indicated that a 42-inch minimum stair rail system height would be more 
protective than the proposed height, and that research supported the 
42-inch minimum height. Accordingly, NFPA stated, ``A minimum 42-inch 
high guard is needed to prevent a ninety-fifth percentile male from 
falling over the rail upon striking the side of a stair. This was 
documented in Jake Pauls' work of the 1970s and 1980s while he was on 
staff at the National Research Council Canada'' (Ex. 97). NFPA also 
said that the University of Michigan study supported raising the 
minimum stair rail system height. OSHA agrees that NFPA's 
recommendation would make the final rule more protective for a broader 
range of workers than the proposed rule and, therefore, requires that 
stair rail systems installed on or after the effective date of the 
final rule be at least 42 inches as measured from the leading edge of 
the stair tread to the top surface of the top rail. OSHA notes A10.18-
2012 (Sections 4.1.2 and 5.2) requires that stair rail systems be 42 
inches, plus or minus three inches.
    OSHA also requested comment about whether the final rule should 
establish a maximum height for stair rail systems like A1264.1-2007. In 
the preamble to the proposal, OSHA said the purpose of stair rail 
systems is to prevent workers from falling over the edge of open-sided 
stairways, and that eliminating a maximum height would give employers 
greater flexibility to install stair rail systems they considered to be 
safer (75 FR 28897).
    OSHA notes that the 42-inch stair rail height (final paragraph 
(f)(1)(ii)(B)) is prospective. It only applies to new and replacement 
stair rail systems installed on or after January 17, 2017.
    Under the proposed rule, the new height requirements would have 
taken effect 90 days after the effective date, and Ameren recommended 
lengthening the phase-in period, saying, ``Lead time for material 
orders are often quite longer than three months often up to years to 
order material for large capital projects.'' Ameren stated later, 
``Stipulations of `ordered' material should be imposed in regard to the 
date of the final rule because the time between ordering and placing 
into service is often greater than 90 days'' (Ex. 189).
    However, OSHA believes 60 days gives employers adequate time to 
come into compliance with the final rule and to change the 
specifications of any stair rail systems they have on order. The NFPA 
101 Life Safety Code has been in place for a number of years, and the 
NFPA said that today stair rail systems ``are being installed at a 
minimum 42-inch height for compliance with nationally-recognized, 
expert model codes like NFPA 101 Life Safety Code'' (Ex. 97). 
Accordingly, OSHA believes most employers already are in compliance 
with the final rule, and the remainder will be able to comply with this 
prospective requirement when the final rule becomes effective. The 
final rule will not affect existing stair rail systems; therefore, 
there is no requirement to retrofit stair rail systems. The final rule 
will continue to allow stair rails installed before the new requirement 
takes effect to meet the existing requirement.
    Finally, OSHA deleted the proposed note to paragraphs (f)(1)(i) and 
(ii) because it is unnecessary. The proposed note explained the 
criteria for measuring the height of handrails and stair rail systems. 
The final rule includes the measurement criteria in final paragraphs 
(f)(1)(i) and (ii). OSHA believes this deletion makes the final rule 
easier to read and follow than the proposal.
    Final paragraph (f)(1)(iii) permits employers to use the top rail 
of stair rail systems as a handrail only when:
     The height of the stair rail system, which Figure D-13 
illustrates, is not less than 36 inches and not more than

[[Page 82630]]

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

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

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


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

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

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

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

[[Page 82631]]

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

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

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

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

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

[[Page 82632]]

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

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

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

[[Page 82633]]

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

[[Page 82634]]

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

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

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

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

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

[[Page 82635]]

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

[[Page 82636]]

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

[[Page 82637]]

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

[[Page 82638]]

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

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

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

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

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

[[Page 82639]]

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

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

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

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

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

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

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

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

[[Page 82640]]

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

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

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

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

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

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

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

[[Page 82641]]

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

[[Page 82642]]

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

[[Page 82643]]

other types of training, OSHA believes it may be necessary for 
employers to ensure that a qualified person is available to answer 
questions and clarify information. For example, when employers use 
computer-based training, they could make a qualified person 
``available'' through an interactive computer program (e.g., WebEx), or 
have a qualified person present to answer questions. (For additional 
information on making training understandable, see OSHA's Training 
Standards Policy Statement).\75\
---------------------------------------------------------------------------

    \75\ OSHA's Training Standards Policy Statement is available 
from OSHA's website at: https://www.osha.gov/dep/standards-policy-statement-memo-04-28-10.html.
---------------------------------------------------------------------------

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

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

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

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

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

B. Final Sec.  1910.140

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

[[Page 82644]]

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

[[Page 82645]]

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

[[Page 82646]]

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

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

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

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

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

[[Page 82647]]

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

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

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

[[Page 82648]]

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

[[Page 82649]]

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

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

    The final rule, however, differs from the definition in the Powered 
Platforms standard (Sec.  1910.66, appendix C, Section I(b)) and 
Z359.0-2012. Those standards require that qualified persons have a 
degree, certification, or professional standing, and extensive 
knowledge, training and experience. OSHA explained in the proposed rule 
that to require qualified persons to meet the definition in the Powered 
Platforms standard would mean that the qualified person ``would most 
likely need to be an engineer'' (75 FR 28905).
    Several commenters opposed the proposed definition of ``qualified'' 
and supported the definition of qualified in Sec.  1910.66 and Z359.0 
(Exs. 155; 193; 367). They also recommended revising the definition to 
specifically require that only engineers could serve as qualified 
persons. For example, Ellis said:

    In America, anchorages are mostly guesswork and this does not do 
justice to ``the personal fall arrest system'' term that OSHA is 
seeking to establish unless the engineering background is added. 
Furthermore the design of anchorages can easily be incorporated into 
architects and engineers drawings but is presently not because there 
is no requirement for an engineer. This simple change may result in 
saving over one half the lives lost from falls in the USA in my 
opinion (Ex. 155).

Penta Engineering Group added:

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

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

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

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

[[Page 82650]]

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

[[Page 82651]]

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

[[Page 82652]]

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

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

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

[[Page 82653]]

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

[[Page 82654]]

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

[[Page 82655]]

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

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

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

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

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

[[Page 82656]]

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

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


[[Page 82657]]


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

[[Page 82658]]

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

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

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

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

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

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

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

[[Page 82659]]

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

[[Page 82660]]

2004, updated 2011).\77\ ISEA supported requiring employers to have a 
rescue plan and make available equipment and personnel to provide for 
prompt rescue after a fall (Ex. 185).
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    OSHA notes that although an increasing number of employers provide 
devices that allow workers to rescue themselves, where self-rescue is 
not possible, the employer must ensure that appropriate rescue 
personnel and equipment is available for prompt rescue. For example, 
unconscious workers will not be able to move so they cannot pump their 
legs to maintain circulation or relieve pressure on their leg muscles. 
Workers who are seriously injured or in shock also may have difficulty 
effecting self-rescue.
    On the second point, the final rule requires that employers provide 
``prompt'' rescue of workers who are suspended after a fall. A number 
of commenters asked OSHA to clarify the meaning of ``prompt'' rescue, 
for example, asking whether it means ``immediately'' or ``quickly'' 
(Exs. 145; 185; 198). ISEA and CSG urged OSHA to require that suspended 
workers be rescued ``quickly,'' pointing out the life-threatening 
dangers of suspension trauma and orthostatic intolerance (Exs. 185; 
198). In 2000, OSHA adopted the language ISEA and CSG recommends in 
answering the question of prompt rescue as it applies to the 
construction fall protection standard: ``[T]he word ``prompt'' requires 
that rescue be performed quickly--in time to prevent serious injury to 
the worker'' (Letter to Mr. Charles E. Hill, August 14, 2000).\78\
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    OSHA's definition of ``prompt'' is performance based. Employers 
must act quickly enough to ensure that the rescue is effective; that 
is, to ensure that the worker is not seriously injured. If the worker 
is injured in the fall, the employer must act quickly enough to 
mitigate the severity of the injury and increase the survivability of 
the worker. OSHA's performance-based definition recognizes, and takes 
into account, the life-threatening dangers of prolonged suspension:
    Orthostatic intolerance may be experienced by workers using fall 
arrest systems. Following a fall, a worker may remain suspended in a 
harness. The sustained immobility may lead to a state of 
unconsciousness. Depending on the length of time the suspended 
worker is unconscious/immobile and the level of venous pooling, the 
resulting orthostatic intolerance may lead to death. . . . Unless 
the worker is rescued promptly using established safe procedures, 
venous pooling and orthostatic intolerance could result in serious 
or fatal injury, as the brain, kidneys, and other organs are 
deprived of oxygen.
    Prolonged suspension from fall arrest systems can cause 
orthostatic intolerance, which, in turn, can result in serious 
physical injury, or potentially, death. Research indicates that 
suspension in a fall arrest device can result in unconsciousness, 
followed by death, in less than 30 minutes (SHIB 03-24-2004).

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

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

[[Page 82661]]

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

Paragraph (d)--Personal Fall Arrest Systems

    Paragraph (d) of the final rule establishes specific requirements 
for using personal fall arrest systems. A personal fall arrest system 
is one type of personal fall protection system. The final rule defines 
a personal fall arrest system as a system used to arrest a worker in a 
fall from a walking-working surface. A personal fall arrest system 
consists of a body harness, anchorage, and a connector. The means of 
connection may include a lanyard, deceleration device, lifeline, or a 
suitable combination of these. OSHA notes that the provisions in 
paragraph (d) apply in addition to those provisions in paragraph (c), 
which apply to all types of personal fall protection systems.
    Paragraph (d) of the final rule includes some changes in the 
regulatory text from the proposal that clarify and simplify the 
language. Those changes do not affect the meaning or purpose of the 
provisions in paragraph (d). OSHA believes that the changes make the 
requirements in paragraph (d) easier for employers to understand, which 
should increase worker safety, and compliance with the final rule. 
Paragraph (d) consists of two primary components: Paragraph (d)(1) 
establishes performance criteria for personal fall arrest systems, 
while paragraph (d)(2) addresses the use of personal fall arrest 
systems. OSHA based the requirements for personal fall arrest systems 
on OSHA's Powered Platforms, construction, and shipyard employment fall 
protection standards (Sec. Sec.  1910.66, appendix C; 1915.159; 
1926.502(d)), as well as on several national consensus standards, 
including Z359.1-2007, A10.32-2012, and I-14.1-2001.
    System performance criteria. The requirements in final paragraph 
(d)(1), with one exception, are almost identical to the requirements in 
OSHA's Powered Platforms, shipyard employment, and construction fall 
protection standards (Sec. Sec.  1910.66, appendix C, Section I(d)(1); 
1915.159(b)(6); 1926.502(d)(16)).\80\
---------------------------------------------------------------------------

    \80\ OSHA first promulgated these performance requirements in 
the Powered Platforms rulemaking (54 FR 31407 (7/28/1989)). In the 
preamble to that final rule, OSHA said that it intended to apply a 
future rule to all uses of personal fall arrest systems in general 
industry, including powered platforms, and that Appendix C to that 
rule would be superseded by the new rule (54 FR 31445-46). This 
final rule, like the proposal (75 FR 29146), removes appendix C to 
OSHA's Powered Platform rule (Sec.  1910.66). Final Sec.  1910.140 
addresses personal fall arrest systems used in all general industry, 
including powered platforms.
---------------------------------------------------------------------------

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

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

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

[[Page 82662]]

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

[[Page 82663]]

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

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

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

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

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

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

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

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

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

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

[[Page 82664]]

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

[[Page 82665]]

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

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

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

[[Page 82666]]

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

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

[[Page 82667]]

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

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

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

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

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

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

[[Page 82668]]

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

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

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

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

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

C. Other Revisions to 29 CFR Part 1910

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

[[Page 82669]]

references to final subparts D and I. For instance, existing Sec.  
1910.66--Powered platforms for building maintenance, specifies that 
employers provide personal fall arrest systems that comply with 
Appendix C of that section (existing paragraph (f)(5)(ii)(L)). Appendix 
C established provisions for the use of personal fall arrest systems 
because, at the time OSHA promulgated Sec.  1910.66, the general 
industry fall protection requirements did not allow employers to use 
personal fall arrest systems, as defined in final Sec. Sec.  1910.21(b) 
and 1910.140(b). Final subpart D adds provisions allowing employers to 
use personal fall arrest systems, and final subpart I establishes 
performance, use, and care criteria for those systems. In conjunction 
with those revisions to subparts D and I, OSHA revises Sec.  1910.66 to 
specify that employers comply with the requirements in final subpart I 
instead of those in appendix C. With the addition of the personal fall 
arrest system provisions to final subpart I, Sec.  1910.66 Appendix C 
is no longer necessary; accordingly, the final rule deletes it.
    Similarly, in final Sec.  1910.269(c)(2)(i) OSHA replaces 
references to personal fall arrest system provisions in 29 CFR part 
1926, subpart M--Fall Protection, with citations to the personal fall 
protection requirements in final subpart I.
    Finally, the final rule revises subpart F (Sec.  1910.67(c)(2)(v)) 
to require that employees wear either a personal fall arrest system or 
travel restraint system that complies with final subpart I when they 
are working from an aerial lift. Existing Sec.  1910.67(c)(2)(v) allows 
employees to wear a body belt and lanyard for fall protection in aerial 
lifts while the proposed rule would have required that aerial lift 
operators use a ``positioning system'' or personal fall arrest system. 
Neither the existing nor proposed rules are consistent with OSHA 
general industry (Sec. Sec.  1910.140 and 1910.269) and construction 
standards (Sec. Sec.  1926.453, 1926.502, and 1926.954). To resolve 
this discrepancy, in final Sec.  1910.67(c)(2)(v) OSHA revises the 
existing and proposed rules in two ways.
    First, final Sec.  1910.67(c)(2)(v) eliminates the existing 
requirement, which specifies that employees use body belts and lanyards 
for fall protection when working from aerial lifts, because it is not 
consistent with final subpart I (final Sec.  1910.140(d)(3)). Final 
subpart I, like the construction fall protection standard (Sec.  
1926.502(d)), prohibits the use of body belts as part of a personal 
fall arrest system. OSHA has determined, as the Agency did in the 
construction fall protection rulemaking (59 FR 40672 (8/9/1994)), that 
body belts must be prohibited because they do not afford a level of 
protection equivalent to body harnesses and present unacceptable risks 
in fall arrest situations. Specifically, as OSHA discussed in the 
explanation of Sec.  1910.140, fall arrest forces are more concentrated 
for a body belt than a body harness, therefore, the risk of injury in a 
fall is much greater when workers use a body belt. In addition, in a 
fall, workers are more likely to slip out of a body belt than a body 
harness and be killed or seriously injured. Moreover, if a fall occurs, 
the hazards associated with prolonged suspension in a body belt are 
substantially more severe than suspension trauma associated with body 
harnesses. (Also see discussion of the prohibition of body belts in the 
preamble revising the general industry and construction Electric Power 
Generation, Transmission, and Distribution and Electric Protective 
Equipment standards (hereafter referred to as ``subpart V'') (79 FR 
20316, 20383-88 (4/11/2014)).
    To make final Sec.  1910.67(c)(2)(v) consistent with final subpart 
I, OSHA replaces the existing provision with the requirement that 
workers use a personal fall arrest system or travel restraint system 
that meets the requirements of final subpart I when working from an 
aerial lift. This revision also makes final Sec.  1910.67 consistent 
with the construction aerial lift (Sec.  1926.453(b)(2)(v) note 1) and 
fall protection standards (Sec.  1926.502(d)) as well as subpart V 
(Sec. Sec.  1910.269(g)(2)(iv)(C)(1) and 1926.954(b)(3)(iii)(A) (79 FR 
20640, 20700)).\85\
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    \85\ Since final Sec.  1910.67(c)(2)(v) and Sec.  
1910.269(g)(2)(iv)(C)(1) are consistent, OSHA is eliminating the 
sentence in Sec.  1910.269(g)(2)(iv)(C)(1) stating that final Sec.  
1910.67(c)(2)(v) does not apply. OSHA believes the sentence is not 
necessary and deleting it eliminates any potential for confusion.
---------------------------------------------------------------------------

    OSHA notes that final subpart I (final Sec.  1910.140(b) and 
(d)(3)), like the construction aerial lift and fall protection 
standards, allows the use of body belts with a travel restraint system 
when employees work from an aerial lift (See also letter to Mr. Jessie 
L. Simmons (5/11/2001) \86\). OSHA allows the use of a body belt with a 
travel restraint system because the system ``prevents a worker from 
being exposed to any fall'' (Letter to Mr. Charles E. Hill (8/14/
2000)). To ensure that employees using travel restraint systems in 
aerial lifts are protected, the employer must ensure the lanyard and 
anchor are arranged so workers are not potentially exposed to falling 
any distance.
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    \86\ Letter available on OSHA's Web site at: https://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_id=24360.
---------------------------------------------------------------------------

    Second, final Sec.  1910.67(c)(2)(v) revises the proposed rule to 
require that employees must use a personal fall arrest system or travel 
restraint system when working in an aerial lift. The proposed rule 
specified, mistakenly so, that employees use a personal fall arrest 
system or ``positioning system'' for fall protection when they work 
from an aerial lifts. In actuality, OSHA does not permit employees to 
use positioning systems when working from an aerial lift (Letters to 
Mr. Jessie L. Simmons (5/11/2001) and Mr. Charles E. Hill (8/14/2000)). 
A positioning system is defined in the proposed and final rules as a 
system that support employees on an elevated ``vertical'' surface, such 
as a wall or window sill (final Sec. Sec.  1910.21(b) and 1910.140(b)). 
However, employees working from aerial lifts are on horizontal 
surfaces. Positioning systems are ``designed specifically to stop a 
worker from falling from a static, head-up position'' (Letter to Mr. 
Jessie L. Simmons (5/11/2001)); however, falls from a horizontal 
surface, such as an aerial lift, can begin with the worker in other 
than a static, head-up position (Letter to Mr. Jessie L. Simmons (5/11/
2001); also see, 79 FR 20384). The final rule corrects the proposed 
rule and, in so doing, makes final Sec.  1910.67(c)(2)(v) consistent 
with subpart V (Sec. Sec.  1910.269(g)(2)(iv)(C)(1) and 
1926.954(b)(3)(iii)(A) (79 FR 20640, 20700)).\87\
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    \87\ Stakeholders commenting to the proposed rule appeared to 
recognize that OSHA's reference to positioning systems might be an 
error (Exs. 174; 183). For example, ULCC pointed out that the 
proposed definition of positioning systems does not appear to be 
applicable to line clearance work from aerial lifts because 
employees are not working on an elevated vertical surface (Ex. 83).
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    OSHA received several comments on the proposed revision of Sec.  
1910.67(c)(2)(v) (Exs. 59; 174; 183; 207). Darren Maddox, with Central 
Alabama Electric Coop (CAEC), supported requiring the use of personal 
fall arrest systems when employees work from aerial lifts (Ex. 59). He 
pointed out positioning straps do not provide fall protection, and that 
CAEC's employees now use personal fall arrest systems when working in 
aerial lifts (Ex. 59). Edison Electric Institute, on the other hand, 
said OSHA should not require fall protection for employees working in 
bucket trucks (Ex. 207).
    The Utility Line Clearance Coalition (ULCC) and Tree Care Industry 
Association (TCIA) both recommended

[[Page 82670]]

that OSHA allow employers to use body belts and short lanyards (3-foot 
maximum length) when their employees work from aerial lifts (Exs. 174; 
183). TCIA contended that arborists and line-clearance tree trimmers 
(collectively referred to as ``line-clearance arborists'') often work 
in aerial lifts above high voltage wires and using body belts and 
lanyards provides the ``greatest protection'' against falling into 
energized power lines (Ex. 174). In addition, they said using a body 
belt with a short lanyard (i.e., 3 feet) \88\ ``provides for the 
shortest overall fall distance,'' which reduces free fall distances, 
and thus, fall arrest forces, as well as minimizing the risk of falling 
into power lines (Ex. 174). TCIA also said that body belts attached at 
the waist allow for ``the possibility of self-rescue,'' but did not 
provide further explanation (Ex. 174).
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    \88\ OSHA notes that final Sec.  1910.140(e)(1)(i)(B) requires 
that positioning systems must be rigged to prevent the worker from 
free falling more than 2 feet. Therefore, TCIA's recommendation that 
line-clearance arborists be allowed to use 3-foot lanyards is not 
permitted under the final rule. OSHA also notes that as of April 1, 
2015, Sec.  1926.954(b)(3)(iv) requires that work-positioning 
systems be rigged so workers cannot free fall more than 2 feet.
---------------------------------------------------------------------------

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

V. Final Economic and Final Regulatory Flexibility Screening Analysis

A. Introduction

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

[[Page 82671]]

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

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

[[Page 82672]]

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

    \89\ The IMIS database contains information on over 2.5 million 
inspections conducted since 1972. The information is continually 
being updated with new data originating from OSHA federal and state 
enforcement offices.
---------------------------------------------------------------------------

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

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

    As previously discussed in section II of this preamble (Analysis of 
Risk), OSHA determined that hazards associated with walking and working 
on elevated, slippery, or other surfaces pose significant risks to 
employees, and that the revisions to subparts D and I are reasonable 
and necessary to protect affected employees from those risks. Based on 
the BLS data showing the number of injuries and fatalities currently 
occurring and OSHA's judgments about the percentage of these injuries 
and fatalities that would be averted as a result of the standards, the 
Agency estimates that full compliance with the revised walking-working 
surfaces standards will prevent 29 fatalities and 5,842 lost-workday 
injuries annually. These benefits constitute a substantial reduction of 
significant risk of material harm for the exposed population of 
approximately 5.2 million employees in general industry.
2. Feasibility
    The Agency must show that the standards it promulgates are 
technologically and economically feasible. (See 58 FR 16612.) A 
standard is technologically feasible if the protective measures 
required already exist, available technology can bring the measures 
into existence, or reasonable designs and developments in technology 
can create the measures.\91\ Protective measures employers take to 
comply with safety standards generally involve the use of engineering 
and work-practice controls. Engineering controls include, for example, 
ladder safety systems, guardrails, toeboards, or other devices or 
barriers that protect employees from exposures to slip, trip, and fall 
hazards. Work-practice controls are techniques that employees use to 
perform their jobs (for example, safe climbing techniques on ladders). 
Employers also can use administrative controls (such as job rotation) 
and personal protective equipment (PPE) (such as harnesses and 
lanyards) to comply with safety standards.
---------------------------------------------------------------------------

    \91\ See Society of the Plastics Industry v. OSHA, 509 F.2d, 
1301, 1309 (1975); USWA v. Marshall, 647 F.2d, 1189 (1980); American 
Textile Manufacturers v. Donovan, 452 U.S. 490 (1981); and Building 
and Construction Trades Dept., AFL-CIO v. Brock, 838 F.2d 1258 
(1988)).
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    A standard is economically feasible if the cost of meeting it does 
not threaten the existence or competitive structure of an industry. An 
OSHA standard may be economically feasible even if it imposes costs 
that will put some marginal firms out of business.\92\ As discussed in 
more detail below, OSHA concludes that the final revisions to subparts 
D and I are both economically and technologically feasible.
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    \92\ See Industrial Union Dept. v. Hodgson, 499 F.2d 467 (1974); 
USWA v. Marshall, 647 F.2d, 1189 (1980); and American Textile 
Manufacturers v. Donovan, 452 U.S. 490 (1981)).
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3. Methodological Considerations in Development of the FEA
    OSHA prepared an economic analysis to estimate the benefits and 
costs of the revisions to subparts D and I as required by E.O. 12866. 
Since 2002, under the direction of the Office and Management and 
Budget, the Agency ``monetized'' the value of the injuries, illnesses, 
and fatalities that new standards will prevent, i.e., it monetized the 
value of expected benefits. Monetized values provide a common metric 
for both benefits and costs. When preparing an economic analysis in 
support of a proposed or final rule that is economically significant 
under E.O. 12866, OSHA presents annual estimates of benefits and costs. 
The Agency

[[Page 82673]]

believes that this approach offers the simplest and clearest way to 
assess the economic effects of its standards. Computing annual 
estimates focuses the Agency's analysis on information from current 
conditions and recent years, which the Agency deems the best, i.e., 
most accurate and reliable, information. OSHA typically assumes a ten 
year annualization period for one-time costs associated with a 
rule.\93\ In the case of this final rule for subparts D and I, adding 
additional years to the period of the analysis would not change any 
major policy conclusions.
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    \93\ As discussed later in this FEA, fixed ladders, cages, and 
wells may have a functional life longer than ten years. However, the 
fall protection equipment and other safety controls applied in this 
FEA are assumed to have a life of ten years, and the cost analysis 
for these controls reflects that lifespan. The Agency estimated that 
fixed ladders have an average life of 30 years. Replacement of the 
fixed ladders would occur evenly across the 30-year period, and, 
with a phase-in date 20 years after publication, some ladders still 
would require replacement anywhere from 1 to 10 years after the 20-
year phase-in date. OSHA calculated first-year costs (at Year 0) of 
installing ladder safety systems for the annual percentage (3.3 
percent each year) of the total stock of fixed ladders (24' to 30' 
in height) that from Year 21 to Year 30 will no longer meet the 
requirements of the standard. Then OSHA used a seven percent 
discount rate to annualize over 10 years. First-year costs total 
$8.5 million and annualized costs total $1.2 million. For further 
details, see Ex. [OSHA Excel Workbook], tabs retrofit_28_calc and 
retrofit_28.
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    To characterize the effects of a new standard, the Agency estimates 
the costs and benefits expected to accrue as regulated entities move 
from the current state of affairs to full compliance with the rule. 
Accordingly, OSHA does not include injuries or fatalities already 
preventable through compliance with existing regulations in its 
assessment of the benefits expected from compliance with the new 
standard. Similarly, the Agency does not include the cost of complying 
with existing standards in its assessment of what it will cost 
employers to comply with the new standard. The Agency assumes that all 
employers will fully comply with the standard. OSHA's analysis also 
assumes that employers incur all costs in the first year following 
promulgation of the final standard (with ongoing costs incurred 
annually beginning in Year 1), and that benefits result immediately.
    The Agency employs a ``willingness-to-pay'' (WTP) methodology to 
estimate benefits. Data from the BLS provide the number of expected 
injuries and fatalities occurring currently and assumed to continue 
into the future in the absence of this regulatory standard, OSHA makes 
expert judgments about the percentage of these injuries and fatalities 
averted as a result of the standard, and the Agency uses WTP estimates 
from the extant literature to assign monetary values to these injuries 
and fatalities. OSHA bases its estimates of willingness to pay on 
empirical studies that statistically analyze the effects of fatality 
and injury rates on wage rates to arrive at individuals' trade-off 
between higher wages and an incremental increase in occupational risk. 
That trade-off allows economists to calculate the implicit value of a 
statistical life (VSL).\94\ Many government regulatory authorities, 
such as the National Highway Traffic Safety Administration and the 
Environmental Protection Agency, use the VSL as a metric, but it is 
particularly appropriate for occupational regulations since it is 
derived from occupational risks and wages.
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    \94\ For example, if workers are willing to pay $50 each for a 
1/100,000 reduction in the probability of dying on the job, then the 
imputed value of an avoided fatality is $50 divided by 1/100,000, or 
$5,000,000. Another way to consider this result is to assume that 
100,000 workers made this trade-off. On average, $5,000,000 would 
save one life.
    For discussion on WTP methodologies, see Viscusi and Aldy 
(2003).
---------------------------------------------------------------------------

    The primary alternative to a WTP approach is a ``cost-of-injury'' 
(COI) approach. The COI approach accounts for the various costs to all 
parties associated with an injury or fatality, including medical costs, 
the costs of work disruption from accidents and accident 
investigations, indirect costs to employers (e.g., absenteeism, hiring 
costs), lost wages or job opportunities, and rehabilitation expenses. 
The COI approach results in ascribing costs and benefits to many 
involved entities: The employer, the employee, workers' compensation 
programs, health insurance providers, federal disability programs, 
governmental bodies, and taxpayers, among others. A COI approach does 
not capture the values of pain and suffering, impacts on families, or 
similar parameters, and for that reason, the Agency believes that WTP 
is superior.
    The Agency's calculation of benefits and costs adopts the 
perspective of society as a whole. Compliance costs are borne directly 
by affected employers but these costs may ultimately be borne by a wide 
variety of parties including employers, consumers, government, and 
employees. Benefits accrue to employees, families, insurers, and 
government, as well as to employers.
4. OSHA's Estimates of Benefits, Costs, and Net Benefits
a. Introduction
    Employees throughout general industry are exposed to slip, trip, 
and fall hazards that cause serious injury and death. OSHA estimates 
that, on average, approximately 202,066 serious (lost-workday) injuries 
and 345 fatalities occur annually among workers directly affected by 
the final standard. Although better compliance with existing safety 
standards may prevent some of these incidents, research and analyses 
conducted by OSHA found that many preventable injuries and fatalities 
would continue to occur even if employers were complying fully with the 
existing standards. Even if there were full compliance with the 
existing standards, OSHA estimates that full compliance with the final 
standard will prevent an additional 5,842 lost-workday injuries and 29 
fatalities each year.
    An additional benefit of this rulemaking is that it will provide 
updated, clear, and consistent safety standards for walking and working 
surfaces and personal fall protection equipment. Most of the existing 
OSHA standards for walking-working surfaces are over 30 years old and 
inconsistent with both national consensus standards and more recently 
promulgated OSHA standards addressing fall protection.
    Presently, OSHA's standards for fall protection on walking-working 
surfaces in general industry differ from the comparable standards for 
construction work. In most instances, employees use similar work 
practices to perform similar tasks, irrespective of whether they are 
performing construction or general industry work. Whether OSHA's 
construction or general industry standards apply to a particular job 
depends on whether the employer is altering the system (construction 
work) or maintaining the system (general industry work). For example, 
replacing an elevated ventilation system at an industrial site would be 
construction work if it involves upgrading the system, but general 
industry work if it involves an in-kind replacement. Since the work 
practices used by the employees would most likely be identical in both 
situations, it would ease compliance if OSHA's general industry and 
construction standards were as consistent as possible. Under OSHA's 
existing requirements, however, different requirements might apply to 
similar work practices, e.g., an employer overhauling two or more 
ventilation systems may have to comply with two different sets of OSHA 
requirements if one project is considered construction and another 
general industry. The existing inconsistencies between the construction 
and general industry standards make it difficult for employers to 
develop appropriate work practices for their employees. Consequently, 
employers and

[[Page 82674]]

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

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

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b. Changes From OSHA's Preliminary Economic Analysis to This Final 
Analysis
    As shown below in the summary table for Section B of this FEA 
(Assessing the Need for Regulation), OSHA projects that the final rule 
will produce annual benefits of 29 fatalities and 5,842 lost-workday 
injuries prevented, while annualized costs will total $305.0 million. 
OSHA's preliminary estimate of benefits (in the Preliminary Economic 
Analysis (PEA) for the proposed rule) was 20 fatalities and 3,706 lost-
workday injuries prevented, and the Agency's preliminary estimate of 
costs in the PEA totaled $173.2 million. The later sections of this FEA 
explain the reasons for these changes in detail. To summarize, OSHA 
notes that the primary factors contributing to larger benefits and 
costs (in relation to the PEA) are: (1) Explicit requirements for 
ladder safety systems for fixed ladders and structures with step bolts, 
guardrails for slaughtering platforms, and roof anchor systems for 
rooftop operations; (2) additional time allotted for inspection of 
walking-working surfaces for dust and other hazardous substances, 
consistent with a clarification in the regulatory text; and (3) an 
increase in the number of workers in outdoor advertising and other 
activities who will need training in using fall protection equipment.
c. Alternative Regulatory Approaches
    To determine the appropriate approach for addressing the 
occupational risks associated with slips, trips, and falls in general 
industry, OSHA considered many different factors and potential 
alternatives. The Agency examined the incidence of injuries and 
fatalities, and their direct and underlying causes, to ascertain 
revisions to the existing standards. OSHA reviewed these standards, 
assessed current practices in the industry, collected information and 
comments from experts, and scrutinized the available data and research.
    OSHA faces several constraints in determining appropriate 
regulatory requirements. Under Section 3(8) of the OSH Act, OSHA 
standards must be ``reasonably necessary or appropriate to provide safe 
or healthful employment and places of employment.'' Also, under Section 
6(b)(8) of the OSH Act, to the extent an OSHA standard differs 
substantially from existing national consensus standards, the Agency 
must explain why the OSHA standard will better accomplish the purposes 
of the OSH Act. As noted elsewhere, OSHA standards also must be 
technologically and economically feasible and cost effective, in the 
sense of the term as used in the OSH Act as interpreted by the 
courts.\96\ Section IV, Summary and Explanation of the Final Rule, 
earlier in this preamble, provides a full discussion of the basis for 
the regulatory requirements in the final rule. The Final Regulatory 
Flexibility Screening Analysis later in this section of the preamble 
discusses the regulatory alternatives considered by OSHA. In that 
section, Table V-34 presents impacts associated with regulatory 
alternatives for selected provisions of the final standard. OMB's 
Circular A-4, Regulatory Analysis, recommends that agencies ``should 
analyze at least three options: The preferred option; a more stringent 
option that achieves additional benefits (and presumably costs more) 
beyond those realized by the preferred option; and a less stringent 
option that costs less (and presumably generates fewer benefits) than 
the preferred option'' (p. 16). This final rule presents the preferred 
option. The less stringent alternative, rejected by OSHA, would reduce 
the number of fall-hazard categories requiring training; however, the 
cost of this alternative would remain significant (but below the cost 
of $74.2 million for the preferred alternative training requirements), 
with a reduction in benefits relative to the preferred alternative. 
OSHA did not explicitly quantify this alternative.
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    \96\ The OSHA Act as interpreted by the courts requires that 
regulations be cost effective in the sense that no other alternative 
in the record addressing the same hazards has an equivalent 
reduction in the risk associated with those hazards; that is, 
reduces those risks to the same extent at lower cost (Am. Textile 
Mfrs. Inst. v. Donovan, 453 U.S. 490, 514 n. 2 (1981); UAW v. OSHA, 
37 F.3d 665, 668 (D.C. Cir. 1994)). This is not a wide ranging 
invitation to compare cost effectiveness across many risks but a 
narrow assurance that the exact same effects could not be achieved 
at less cost. An analysis of regulatory alternatives is provided in 
Section V.H.8.
---------------------------------------------------------------------------

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

B. Assessing the Need for Regulation

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

[[Page 82678]]

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

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

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

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

    Furthermore, workers' compensation covers only a small fraction of 
most estimates of the willingness to pay to prevent a fatality.\99\ 
Additionally, workers' compensation payments do not fully compensate 
injuries in that workers' compensation provides no payments for pain 
and suffering or losses other than lost wages or medical expenses 
associated with injuries. There is extensive evidence that workers' 
compensation does not even fully restore wages lost as a result of 
long-term disability (Ashford, 2006).
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    \99\ While workers' compensation varies by state, Leigh and 
Marcin (2012) estimate that the average indemnity benefits for a 
fatality are $225,919, far less than willingness-to-pay estimates. 
For example, as explained in Section D of this FEA, OSHA uses a 
willingness-to-pay measure of $8.4 million per life saved in 2010 
dollars. Other agencies use different estimates, but all the values 
are in the millions of dollars.
---------------------------------------------------------------------------

    Having to pay wage premiums for risk is another economic incentive 
for employers to mitigate occupational risk. However, wage premiums do 
not respond to changes in risk level very strongly, due to information 
asymmetries. For an employer to have an adequate incentive to implement 
measures that will prevent workplace accidents, it is not sufficient 
that employees simply know that their work is dangerous, or even know 
quantitatively that their occupation has a given risk. Employees must 
know the exact nature and likely quantitative effects of their 
employer's safety measures and systems; have a reasonable expectation 
that their employer will continue to provide existing safety measures 
in the future; and be able to act on their knowledge of risk by readily 
changing workplaces or changing wage demands in response to differences 
in levels of risk.\100\ OSHA believes that even skilled workers exposed 
to the risks of slips, trips, and falls (including some persons injured 
in accidents preventable by the final rule who fall in that category) 
lack such detailed employer-specific knowledge or the ability to act on 
it. Further, employees who typically work at a variety of different 
sites, including sites controlled by multiple employers, will find it 
particularly challenging to determine future risk levels, as these 
levels will vary from site to site.
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    \100\ Furthermore, bargaining power differences or external 
constraints must not interfere in the wage setting process--as they 
do in circumstances of monopsony or multiemployer collective 
bargaining agreements, for example. Bargaining power differences may 
occur, for example, in small communities where a single manufacturer 
may be the employer for certain kinds of skills, or the more general 
issue that an employee's firm specific skills (such as understanding 
of unique processes or equipment) are in demand by only a single 
employer.
---------------------------------------------------------------------------

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

[[Page 82679]]

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

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

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

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

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

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

[[Page 82704]]

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

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

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

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

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

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

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

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

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

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

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

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

1. Introduction
    This section reviews the populations in general industry that are 
at risk of occupational injury or death due to hazards associated with 
slips, trips, or falls to lower levels, and assesses the potential 
benefits associated with the changes to subparts D and I resulting from 
the final rule. OSHA believes that compliance with the final rule will 
yield substantial benefits in terms of lives saved, injuries avoided, 
and reduced accident-related costs. Applying updated accident data and 
incorporating information from the record, OSHA revised its preliminary 
estimate of (1) the baseline level of risk and (2) prevented deaths and 
injuries due to the final rule.
    As described in Section C of this FEA (Industry Profile) above, the 
employees affected by the final standard work largely in construction, 
installation, maintenance, and repair. According to the Bureau of Labor 
Statistics' 2007 Occupational Employment Statistics survey, there are 
approximately 112.3 million employees in industries within the scope of 
this final rule: 5.2 million employees engaged in construction, 
installation, maintenance, and repair operations in general industry 
that OSHA judges will need ladder training because these occupations 
are the most likely to use ladders in their work; \110\ and 2.1 million 
employees in general industry using personal fall protection equipment. 
The rule also affects workers in a variety of specific kinds of work 
who may enter manholes using step bolts, use scaffolds or rope descent 
systems, etc. The inclusion of construction occupations assumes that 
employees in construction occupations, but employed by general industry 
rather than construction employers, routinely engage in what OSHA 
labels as maintenance (i.e., a general industry activity) rather than 
construction activities.
---------------------------------------------------------------------------

    \110\ Ladder use is not limited to these occupations, and there 
are many persons in these occupations that do not use ladders. OSHA 
examined ladder fatalities recorded by BLS from 2011 through 2014 
and found that 68 percent of ladder fatalities were in the 
occupations OSHA included as needing ladder training. However, of 
the 5.2 million included, many such as computer and electronics 
repair technicians and auto mechanics have low rates of ladder 
fatalities indicating that ladders are likely rarely used in these 
occupations. Over two million of those included as always needing 
ladder training are thus unlikely to need ladder training. This 
potential overestimate of ladder training costs is probably 
countered by the number of other workers who potentially use ladders 
but are excluded from the 5.2 million, such as 950,000 grounds 
maintenance workers who provide over 5 percent of ladder fatalities. 
The remaining 27 percent of ladder fatalities are very widely 
dispersed; ladder fatalities are found in every major occupational 
group.
---------------------------------------------------------------------------

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

[[Page 82763]]

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

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

    Distinguished from the larger category of all falls--i.e., a set of 
accidents that includes falls on the same level, falls to a lower 
level, and jumps to a lower level--the narrower category of falls to a 
lower level consists of the types of falls directly addressed by most 
of the changes to OSHA's requirements by this final standard. As shown 
in Table V-6, the CFOI reported 283 and 279 fatal falls to lower levels 
for 2006 and 2007, respectively, in industries covered by the final 
standard; for the five most recent years for which the data were 
available, fatal falls to a lower level declined to an average of 252 
fatalities. For purposes of estimating the overall rate of fall 
fatalities for this benefits analysis, OSHA took the average of these 
seven years--i.e., 261 fall fatalities to a lower level per year. Over 
the seven-year period, the Professional, Scientific, and Technical 
Services industry and the Administrative and Support Services industry 
(NAICS codes 541 and 561, respectively) accounted for 27 percent of the 
fatal falls, while the Manufacturing (NAICS codes 31-33) and 
Transportation (NAICS code 48) industries accounted for 9.6 and 7.1 
percent of the fall fatalities, respectively. Among all three-digit 
NAICS codes affected by the standard, BLS reported the highest number 
of fatal falls in NAICS code 561, Administrative and Support Services. 
Although not shown in the table, a large majority of the fatalities for 
Administrative and Support Services--86 percent for the seven-year 
period 2006-2012--occurred in the industry concerned with services to 
buildings and dwellings (NAICS code 5617).


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

[[Page 82769]]

final standard will prevent fall fatalities to different degrees for 
different types of falls. Table V-7 shows, for the 5-year period 2006 
to 2010, the breakdown of fall fatalities by type of fall based on CFOI 
data. As shown, falls to a lower level (distinguished from falls on the 
same level) accounted for about 77 percent of total fall 
fatalities.\112\ On a sector-by-sector basis, falls to a lower level as 
a percentage of all fatal falls ranged from 50 percent for the 
Educational Services (1.4 of 2.8, unrounded) and Health Care and Social 
Assistance sectors (6.4 of 12.8, unrounded) to 91 percent for the 
Administration and Support and Waste Management and Remediation 
Services sector (64 of 74.6, unrounded). As Table V-7 also shows, fatal 
falls from ladders averaged 56 per year over the 5-year period, while 
fatal falls from scaffolds averaged 13 per year.
---------------------------------------------------------------------------

    \112\ The average for 2006-2010 shown in Table V-7 (333 
fatalities) differs from the baseline estimate applied in OSHA's 
benefits analysis (345 fatalities; see Table V-11) due to the 
addition of two years (2011 and 2012) in OSHA's estimate of the 
baseline average. See Ex. [OSHA Excel Workbook], tab Prevented 
Fatalities '06-'12.

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

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

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

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

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

    \114\ See ERG, 2007 (Ex. OSHA-2007-0072-0046), p. 4-10, for 
further explanation of OSHA's methodology for applying historic 
percentages to types of falls. See also Ex. [OSHA Excel Workbook], 
tab Prevented Fatalities '06-'12 for details on the application of 
the distribution of falls from 2006-2010 to the baseline average 
number of fatal falls for 2006-2012 in the final benefits analysis.
---------------------------------------------------------------------------

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

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

[[Page 82783]]

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

    \115\ The term ``prevention rate'' as used in this FEA, refers 
to prevention of both injuries and fatalities.

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

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

[[Page 82784]]

benefits analyses should not assume that changes in training 
requirements can be expected to have large changes in incident 
prevented unless there are also changes in engineering controls or 
strong prohibitions on practices. Third, the higher the estimate, the 
greater would be the justification required beyond stating this was the 
best judgment of the experts. One possible effect of applying these 
principles is that the highest preventability factor that was applied 
in the PEA was lower than the lowest preventability factors in the 
studies the Seong and Mendeloff (2004) article reviewed.
    A second major issue is that the failure of OSHA regulations to 
achieve the anticipated benefits maybe partly due to failure of 
employers to comply with the regulations. As noted by Seong and 
Mendeloff, OSHA routinely assume full compliance with regulations for 
legal reasons. In some cases, if compliance is lower than 100 percent, 
benefits and costs will be proportionally reduced, with no effect on 
whether benefits exceed costs. For example, if twenty percent of 
establishments in an industry are out of compliance with a provision in 
the baseline, and these twenty percent cause ten percent of all fall 
fatalities, then if only ten percent come into compliance, rather than 
twenty percent, accidents would still be reduced by five percent. Under 
this scenario, a finding that benefits exceed costs under full 
compliance would be maintained at a lower compliance level, as long as 
those out of compliance are a homogeneous group.
    There is, however, the possibility that those out of compliance are 
not a homogeneous group but consist of the two subgroups, one of which 
has found other ways of preventing the same kind of falls, and one of 
which are ``bad actors'' who make no efforts of any kind to prevent 
falls. In this case, if compliance is only by those in the safer group, 
the effects of noncompliance would not simply be proportional. Such a 
situation might be particularly likely if there is noncompliance with 
an existing rule and OSHA adds provisions designed to assure greater 
compliance. For example, almost all trenching fatalities are the result 
of complete failure to comply with existing shoring requirements. An 
attempt to improve compliance by increasing recordkeeping, training, 
and certification might have little effect on the bad actors who simply 
fail to use shoring at all while imposing additional costs on those 
already following existing shoring requirements. If only those in 
compliance with the existing rule also follow these new provisions, 
then there would be costs without benefits. OSHA has reviewed this rule 
and does not believe that this is the case for the provisions of this 
rule.
    Because of the importance of this issue, OSHA examines the effects 
of possible overestimation of benefits and of noncompliance on both 
costs and benefits in the sensitivity analysis.
    For the PEA, OSHA estimated the number of fatal falls potentially 
prevented by compliance with the proposed standard, categorized by type 
of fall. Since proposed subpart D focused heavily on ladder safety, 
OSHA judged the highest impact--15 percent--would be in preventing 
fatal falls from ladders. For other types of fatal falls directly 
addressed in the proposal (e.g., falls from floor or dock), OSHA judged 
a more moderate impact of 10 percent. For other types of fatal falls 
(e.g., falls down stairs or steps), OSHA judged a relatively low 
prevention impact (5 percent). For the several types of fatal falls not 
specifically defined by the BLS injury survey (fall to lower level, 
n.e.c., and fall to lower level, unspecified), OSHA judged a level of 
preventability (2.5 percent). (See the PEA (Ex. 1) and ERG, 2007 (Ex. 
46), pp. 4-10 to 4-14.)
    For falls from roofs, OSHA judged in the PEA that compliance with 
the provisions in proposed subpart D addressing safety systems, work 
practices, and training associated with the fall hazards encountered on 
roof surfaces--including the requirements referenced in national 
consensus standards such as ANSI/ASSE A1264.1-2007, Safety Requirements 
for Workplace Walking/Working Surfaces and Their Access; Workplace, 
Floor, Wall and Roof Openings; Stairs and Guardrail Systems--would 
result in a prevention rate of 15 percent. Therefore, in the 
preliminary analysis of benefits, OSHA applied a prevention rate of 15 
percent to roof accidents.
    For this final analysis of benefits, OSHA increased the prevention 
rate for roofs to 20 percent because the final standard: (1) 
Significantly strengthened fall protection for chimney sweeps (see 
Section F Costs of Compliance below in this FEA for a discussion of the 
control measures that OSHA used for the chimney-cleaning services 
industry), and (2) in greater detail, through association with an 
analogous standard for construction, extended fall protection in the 
form of designated areas and work rules intended to limit the movement 
of workers to within 15 feet of the roof edge when fall protection is 
not installed and available for use (see Section F below for a 
discussion of fall protection on rooftops across industries covered by 
Sec.  1910.28, Duty to have fall protection). OSHA's final analysis of 
compliance costs for rooftop inspections addressed by final Sec.  
1910.28(b)(13), Work on low-slope roofs, includes costs for the 
installation of fall-arrest anchorages for the small percentage of 
inspections that identify hazardous conditions at or near roof edges 
(see discussion in the section ``Cost Estimates'', below). These 
additional rooftop inspections and fall-system enhancements are 
expected to contribute to the benefits of reduced fatalities and 
injuries.
    Two chimney-sweep accidents reported in OSHA's IMIS database (OSHA, 
2012a) illustrate the benefits achievable under the final standard. In 
the first accident (Inspection No. 311734842), an employee of a 
Maryland chimney-sweep business died from impact injuries to the head 
and neck after apparently falling 15 feet. Although no one witnessed 
the accident, it appears, based on evidence at the scene and an 
interview with the homeowner, that the employee was using a 12-foot 
section of a ladder to gain access to three roof levels: the primary 
roof, the porch roof, and the roof peak. Inspectors found no roof 
perimeter guardrail or anchorage-based personal fall protection 
equipment at the site. OSHA believes the final standard at Sec.  
1910.28 would prevent such a fall because the employer would have to 
provide fall protection for an employee exposed to a height of four 
feet or greater.
    In a second chimney-cleaning accident identified by OSHA 
(Inspection No. 307309054), employees of an air-duct and chimney-
service company were installing a protective cap on a chimney. One of 
the employees was using a 2-foot stepladder leaning against the chimney 
chase to access the top of the chimney when he fell 24 feet. OSHA's 
investigation of the fatality showed that the employee was not using 
personal fall protection equipment, a safety measure required by the 
final standard.
    For this final analysis of benefits, OSHA increased the prevention 
rate for ladders to 20 percent (from 15 percent in the PEA) because the 
requirement in the final rule for safety systems on all fixed ladders, 
including outdoor advertising, will substantially reduce the number of 
ladder-related accidents.
    In addition, OSHA believes that the increased level of worker 
training on ladder safety systems required by the final rule, and the 
heightened recognition of the fall hazards associated with ladder 
safety systems resulting from this training, will yield a

[[Page 82785]]

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

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

    Using the prevention estimates described above for falls on the 
same level and the prevention estimates applied to fatal incidents 
involving falls to a lower level, OSHA estimates that compliance with 
final subparts D and I will prevent 5,842 lost-workday fall injuries 
annually. OSHA recognizes that this prevented-injuries estimate is a 58 
percent increase over the preliminary estimate (i.e., 3,706 prevented 
injuries); however, OSHA believes that this estimate accurately 
captures the full range of accidents that the final rule addresses.
BILLING CODE 4510-29-P

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[[Page 82788]]


4. Nonquantifiable Benefits
    As noted earlier in this FEA, OSHA did not estimate the 
improvements in the efficiency of compliance associated with clarifying 
the existing rule and making it consistent with current national 
consensus standards. In addition to the benefits associated with those 
factors, OSHA anticipates that improvements to its walking-working 
surfaces standard in general industry will yield further benefits. In 
the following exhibit and in the discussion that follows, OSHA 
highlights the key substantive differences introduced by the final 
rule.
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[GRAPHIC] [TIFF OMITTED] TR18NO16.208

BILLING CODE 4510-29-C

[[Page 82796]]

    Earlier in this preamble, in the summary and explanation of final 
Sec.  1910.28 Duty to have fall protection and falling-object 
protection, OSHA described the means by which the final standard 
provides greater flexibility in controls than is found in the current 
walking-working standard for preventing slip, trip, and fall accidents. 
OSHA believes that expanding control flexibility will produce 
nonquantifiable benefits, and in the following discussion, the Agency 
reiterates the factors that will help generate the nonquantified 
benefits supplementing the quantified benefits shown in Impacts Exhibit 
V-1 and in Tables V-11 and V-13 in this FEA.
    This rule, like the construction fall protection standard, allows 
general industry employers, similar to construction employers, to 
protect workers from falls hazards by choosing from a range of 
acceptable fall protection options. The existing general industry 
standard, however, mandated the use of guardrail systems as the primary 
fall protection method (e.g., see existing Sec.  1910.23(c)).
    The 1990 proposed revision of subpart D continued to require the 
use of guardrail systems. However, in the 2003 notice reopening the 
record, OSHA acknowledged that it may not be feasible to use guardrails 
in all workplace situations (68 FR 23528, 23533 (5/2/2003)) and 
requested comment on whether the Agency should allow employers to use 
other fall protection systems instead of guardrails. Commenters 
overwhelmingly favored this approach, which the construction fall 
protection standard adopted in 1994. In response to comments and OSHA's 
history and experience with the construction fall protection standard, 
the Agency proposed allowing employers to select from a range of fall 
protection options instead of requiring employers to comply with the 
existing mandate to use guardrail systems.
    OSHA is adopting the proposed approach for several reasons. First, 
OSHA believes giving general industry employers flexibility in 
selecting fall and falling-object protection systems allows them to 
select the system or method that they determine will work best for the 
particular work operation and location. Such flexibility allows 
employers to consider factors such as exposure time, availability of 
appropriate attachment points, feasibility, cost effectiveness, and 
cost constraints when selecting the appropriate fall protection system 
for the work activity.
    Second, providing control flexibility allows general industry 
employers to take advantage of advances in fall protection technology 
developed since OSHA adopted the existing rule. The existing rule, by 
contrast, limited choices in fall protection technology.
    Third, making the final rule consistent with the construction 
standard ensures that employers who have workers engaged in both 
general industry and construction activities are able to use the same 
fall and falling-object protection while performing both types of 
activities. It eliminates the need to purchase different fall 
protection systems when their workers perform general industry 
operations. Thus, making the general industry and construction rules 
consistent ensures that final rule is a cost-effective approach for 
reducing significant risk of harm. As a result, OSHA believes that the 
additional flexibility and consistency achieved by this final rule in 
providing fall protection will reduce worker deaths and injuries.
    OSHA believes the comprehensive approach to fall protection (that 
is, duty to provide fall protection, mandatory criteria for controls, 
regular inspections, and training) that the final rule and the 
construction fall protection standard incorporate will provide 
equivalent or greater protection than the existing rule. In addition, 
the greater flexibility the final rule affords employers will allow 
them to select the fall protection option that works best in the 
specific situation and is the most cost-effective protective measure 
capable of reducing or eliminating significant risk of harm. Moreover, 
the comprehensive approach in the final rule, like the construction 
fall protection standard, recognizes that, in some instances, it may 
not be possible to use guardrail systems or other passive controls to 
protect workers from falls. For example, employers may not be able to 
install permanent systems such as guardrails when they do not own the 
building or structure on which their employees are working. OSHA 
believes the final rule addresses the concerns of these commenters 
without limiting employer flexibility or compromising worker safety.
    As mentioned, the final rule limits fall protection choices in some 
situations where the Agency determined that passive/permanent systems 
provide the requisite level of protection. For example, in final 
paragraph (b)(5), OSHA specifically requires the use of guardrails on 
runways and similar walkways. Likewise, guardrail systems or travel 
restraint systems are the only systems that employers may use to 
protect workers on slaughter-house platforms (see final paragraph 
(b)(14)). In these cases, OSHA limited employers' choices to those 
systems that are possible to use on those walking-working surfaces and 
that provide an adequate and appropriate level of safety.
    The final rule also establishes criteria and work practices 
addressing personal fall protection systems (Sec.  1910.140). These 
criteria include minimum strength and load, locking, and compatibility 
requirements for components of personal fall protection systems, such 
as lines (vertical lifelines, self-retracting lines, travel restraint 
lines), snaphooks, and anchorages. The work practices include requiring 
employers to ensure inspection of personal fall protection systems 
before the initial use during each work shift, and to ensure that a 
competent or qualified person inspects each knot in a lanyard or 
vertical lifeline. OSHA believes that these criteria and work 
practices, in conjunction with the training and retraining requirements 
in the final rule, provide a combination of controls and redundancies 
that will help to ensure that personal fall protection systems are 
effective in protecting workers from falls hazards.
c. Public Comment on Benefits
    OSHA requested comment on the Agency's preliminary analysis of the 
scaffold accidents described above, and on the various approaches used 
to determine the estimated benefits achievable from compliance with the 
other provisions of the proposed standard. The following discussion 
presents OSHA's summary of the public comments received on OSHA's 
preliminary benefits analysis.
    The National Chimney Sweep Guild (NCSG) questioned the benefits of 
a fall protection system that involved the use of an anchorage, travel 
restraint lines, and harnesses for repair and maintenance activities on 
a residential roof:

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

[[Page 82797]]

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

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

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

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

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

    The relative ranking of falls appears to have more to do with 
the falling rate of workplace homicides than with an increase in 
fatal falls, since the rate of fatal falls has remained fairly 
constant at around 5 and 6 fatal falls per million employees for 
decades.
    While it is true that fatal falls were 14% of all fatalities 
(2009 BLS data), this was not evenly distributed among the 
industrial sectors. In the ``goods producing'' sector, falls were 
the second (or third) leading cause of death, and were ten times 
more likely than a homicide to be the cause of death. This is the 
major category that includes mining, agriculture, construction and 
manufacturing.
    In contrast, in the service sector, falls were the third (or 
fourth) leading cause of death. In the service sector overall, 
homicides were twice as likely to be the cause of death as a fall. 
In some NAIC codes, homicides were 4 times more likely to be the 
cause of death than a fall. The service sectors where fatal falls 
were relatively more likely were: (1) Durable goods wholesale; (2) 
utilities; (3) information; and (4) administrative and waste 
services.
    I've focused on fatal falls data rather than non-fatal falls 
because the non-fatal data are more subject to variations from 
record-keeping interpretations, data initiatives, etc.
    Never-the-less historical incident rates for non-fatal falls 
also do not display an increasing fall problem. The all-industries 
non-fatal fall incidence rate has declined every year since 2003 
(the oldest year in the BLS Table I consulted), so the decline in 
rates is not attributable to the current recession. If we exclude 
2008 and 2009 data, manufacturing did not show a change. Yet 2006 
and 2007 showed lower injury incidence rates than 2003 and 2004 (Ex. 
368).

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

[[Page 82798]]

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

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

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

BILLING CODE 4510-29-P

[[Page 82799]]

[GRAPHIC] [TIFF OMITTED] TR18NO16.209


[[Page 82800]]


BILLING CODE 4510-29-C

E. Technological Feasibility

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

[[Page 82801]]

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

    In general, employers should be able to address and eliminate 
employee exposures to potential slip, trip, and fall hazards by 
planning and designing adequate facilities and work procedures. Based 
on widespread industry practice, OSHA concludes that the fall 
protection requirements specified by this section of the final 
standards are technologically feasible.
Fall Protection Systems and Falling-Object Protection--Criteria and 
Practices (Sec.  1910.29)
    In Sec.  1910.29, OSHA specifies or provides references for revised 
criteria for fall protection systems such as guardrail systems; 
handrails; stair rail systems; cages, wells, and platforms used with 
fixed ladders; toeboards; designated areas; travel restraint systems; 
safety net systems; grab handles; and fall protection for the outdoor 
advertising industry. Final Sec.  1910.140, discussed at length below, 
provides criteria for personal fall protection systems that OSHA is 
adding to existing subpart I through this rulemaking.
    With regard to guardrail systems (Sec.  1910.29(b)), the final 
subpart D standards do not substantially modify existing requirements 
involving height, strength, or other criteria. In some circumstances on 
low slope roofs for

[[Page 82802]]

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

[[Page 82803]]

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

F. Costs of Compliance

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

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


[[Page 82804]]


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

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

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

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

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

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

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

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

[[Page 82805]]

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

BILLING CODE 4510-29-P

[[Page 82806]]

[GRAPHIC] [TIFF OMITTED] TR18NO16.210

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

[[Page 82807]]

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

    \119\ OSHA implicitly considered the costs for all industrial 
sectors to meet the existing standards when it published those 
standards.
---------------------------------------------------------------------------

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

[[Page 82808]]

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[[Page 82811]]


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[[Page 82812]]


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

[[Page 82813]]

[GRAPHIC] [TIFF OMITTED] TR18NO16.215


[[Page 82814]]


[GRAPHIC] [TIFF OMITTED] TR18NO16.216


[[Page 82815]]


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

    \122\ See the discussion later in this section and Ex. [OSHA 
Excel Workbook], tabs one_time_23 and annual_23, for details on the 
training costs attributed to the final requirements for ladders 
under Sec.  1910.23(b) and (c).

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[[Page 82817]]


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[[Page 82818]]


[GRAPHIC] [TIFF OMITTED] TR18NO16.219


[[Page 82819]]


[GRAPHIC] [TIFF OMITTED] TR18NO16.220

    Finally, three requirements in the standard specify that employers 
must provide training in accordance with Sec.  1910.30 or the 
equivalent:
     Sec.  1910.27(b)(2)(iii): Rope descent systems;
     Sec.  1910.28(b)(1)(ii)(C): Unprotected sides and edges; 
and
     Sec.  1910.28(b)(4)(ii)(C): Dockboards.
    The costs for Sec.  1910.30 include the costs for the three 
paragraphs listed above.
    In the following subsection, organized by regulatory provision, 
OSHA discusses the potential cost implications of the new requirements. 
OSHA described earlier in this cost analysis final changes to the 
existing standard that likely will result in little or no costs; OSHA 
does not address these changes in the discussion below.
General Requirements (Sec.  1910.22)
    Sec.  1910.22(b). This provision specifies general requirements, 
one of which is that employers must ensure that the walking-working 
surface has the strength to support employees safely. From the 
standpoint of compliance costs, OSHA believes that employers can meet 
this requirement by performing a 5- to 10-minute inspection of the 
surface or reviewing engineering diagrams of the structure. In rare 
circumstances, an employer might need to spend 15 to 30 minutes 
determining if the work can proceed. OSHA discusses the costs for this 
provision later in this subsection in connection with the duty to 
inspect walking-working surfaces as part of the general requirements 
specified under Sec.  1910.22(d) (see ``Cost estimates'' below).
    Sec.  1910.22(c). The employer must provide employees with, and 
ensure that they use, a safe means of access to, and egress from, one 
walking-working surface to another. The language in existing Sec.  
1910.22(b) specifies that employers must keep aisles and passageways 
clear, in good repair, and with no obstruction across or in the aisles 
that could create a hazard to employees. For the PEA, OSHA generalized 
the terms ``aisles'' and ``passageways'' in proposed Sec.  1910.22(c) 
to cover all means of access and egress. The terminology in the 
proposed rule was consistent with that in a National Fire Protection 
Association consensus standard (NFPA 101). Thus, OSHA assigned no costs 
to proposed Sec.  1910.22(c) in the PEA and, with no comment in the 
record objecting to that decision, OSHA assigned no costs to Sec.  
1910.22(c) in this FEA.
    Sec.  1910.22(d). This new provision sets forth requirements for 
the employer to inspect regularly and as necessary, and maintain in a 
safe condition, walking-working surfaces; guard hazardous conditions to 
prevent employee use until the employer corrects or repairs the hazard; 
and have a qualified person inspect perform or supervise any correction 
or repair work that involves the structural integrity of a walking-
working surface. OSHA considered the costs for these safe work 
practices below under ``Cost estimates'' (for the duty to have fall 
protection; Sec.  1910.28).
Ladders (Sec.  1910.23)
    Sec.  1910.23(a). This paragraph specifying the application final 
standard covers all ladders, except when the ladder is used in 
emergency operations such as firefighting, rescue, and tactical law 
enforcement operations, or training for these operations or designed 
into or is an integral part of machines or equipment. Special wood 
ladders specifically excluded in the existing standard, including fruit 
picker's ladders, combination step and extension ladders, stockroom 
step ladders, aisle-way step ladders, shelf ladders, and library 
ladders are now included under the final standard. In the PEA, OSHA 
assumed that these ladders met consensus standards for wooden ladders 
(see Table V-16) and, therefore, OSHA expected that employers would 
incur no costs with the expanded application. After reviewing the 
record, OSHA reached the same conclusion for this FEA.
    Final Sec.  1910.23(b)(4) specifies a minimum clear rung, step, or 
cleat width of 11.5 inches for portable ladders and 16 inches for fixed 
ladders; thus, the distance from the centerline to the inside edge of 
the ladder ranges from roughly 6 to 8 inches. Adding the existing 
requirement of 2.5 inches from the nearest edge of the ladder to the 
nearest edge of the structure or equipment to the 6- to 8-inch 
centerline width required by the final standard results in a step-
across width of 8.5 to 10.5 inches for the purposes of the final 
standard. Thus, any fixed ladder that meets the existing requirements 
also meets the final requirements. OSHA assigned no costs to this 
paragraph in the PEA. Therefore, absent comment by the public or any 
other evidence in the record that would alter this preliminary 
assessment, the Agency assigned no costs for this paragraph in this 
FEA.
    Sec.  1910.23(b)(4)(iii). This paragraph concerns rolling ladders 
in communications centers, which OSHA moved to this final rule from 
existing Sec.  1910.268(h)(5), Telecommunications. Thus, as this is not 
a new requirement, it has no costs.
    Sec.  1910.23(b)(4)(iv). This paragraph is a new requirement that 
addresses the minimum clear width for stepstools, which OSHA defines as 
a type of portable ladder (Sec.  1910.21(b)). The final rule specifies 
that stepstools must have a minimum clear width of at least 10.5 inches 
instead of the 11.5-inch minimum clear width that the final rule 
requires for other portable ladders. Although OSHA did not receive any 
comments on this issue, the Agency

[[Page 82820]]

added this provision to make the rule consistent with ANSI/ALI national 
consensus standards for wood and metal portable ladders (A14.1-2007 and 
A14.2-2007). OSHA assigned no costs to this paragraph in the PEA, and 
absent comment by the public or any other evidence in the record that 
would alter this preliminary assessment, the Agency assigned no costs 
for this paragraph in this FEA.
    Sec.  1910.23(b)(9). Both the existing and proposed standards had a 
requirement to inspect ladders before use. In the PEA, OSHA determined 
that the inspection frequency would not increase under the proposed 
standard. Therefore, OSHA concluded that employers would incur no 
additional costs associated with this requirement and, after reviewing 
the record following publication of the NPRM, reached the same 
conclusion for this FEA.
    Sec.  1910.23(b)(11)-(13); Sec.  1910.23(c)(5) and (6) and (9)-
(11). These eight paragraphs include instructions to employees on the 
proper use of ladders. Final Sec.  1910.23(c)(5) prohibits the use of 
single rail ladders, which OSHA finds is a training requirement. The 
wide availability of permitted ladders means that there are no 
equipment costs associated with this prohibition. In the PEA, OSHA also 
concluded that training would cover the other six provisions, and 
reached the same conclusion for this FEA. OSHA considered training 
costs below under ``Cost estimates.''
    Sec.  1910.23(c)(12) and (13). These provisions state that 
employers are not to tie or fasten ladders and ladder sections together 
to provide added length unless the design of the ladders permits such 
use, nor are employers to place ladders on boxes, barrels, or other 
unstable bases to obtain additional height. These provisions are 
essentially identical to current paragraphs Sec. Sec.  1910.25(d)(2)(v) 
and 1910.26(c)(3)(vi), which specify that neither wood nor metal 
portable ladders may be spliced, tied, or fastened together or elevated 
on unstable surfaces to create a longer section or higher reach unless 
the manufacturer has designed the equipment for such a purpose. These 
provisions, both in the existing and final standards, might cause 
employers to incur a cost if it is necessary to purchase longer 
ladders, or ladders that they can fasten together. During the comment 
period, OSHA received no data estimating the frequency of such 
occurrences but, presumably, they are rare. Thus, OSHA did not assign a 
cost to these paragraphs in this final analysis.
    Sec.  1910.23(d)(1). As proposed, fixed ladders installed 90 days 
after the effective date of the final standard must be capable of 
supporting two live loads of at least 250 pounds each, additional 
concentrated loads of 250 pounds each, plus anticipated loads caused by 
ice build-up and other conditions. Each rung must be capable of 
supporting at least a single concentrated load of 250 pounds. The 
language in this proposed requirement reflected the consensus standard 
in ANSI A14.3-2002. The language in the existing standard, however, 
specifies a single concentrated load of 200 pounds.
    As discussed earlier in this preamble, OSHA removed paragraph 
(d)(2) of the proposed rule from the final rule because OSHA believes 
that the performance criteria specified in final Sec.  1910.23(d)(1) 
provide an adequate level of safety for employees. Therefore, because 
paragraph (d)(1) reflects industry practice as documented in ANSI 
A14.3-2002, there are no costs associated with this provision.
    Sec.  1910.23(d)(12)(i). This final provision requires that 
employers measure ``step-across distance'' from the centerline of the 
steps or rungs of a fixed ladder. The existing definition measures 
step-across distance from the nearest edge of the ladder to the nearest 
edge of the structure or equipment. The minimum distance under the 
final standard is 7 inches, and under the existing standard it is 2.5 
inches; the maximum distance in the final standard is 12 inches, 
identical to the current standard. OSHA assigned no costs to this 
paragraph in the PEA and, although the minimum step-across distance in 
the proposed standard differed significantly from that in the current 
standard, no commenters objected to the proposed expansion in minimum 
step-across distance. Therefore, OSHA assigned no costs to this 
provision in this FEA.
    Sec.  1910.23(d)(12)(ii). The final standard specifies that the 
step-across distance from the centerline of the steps or rungs of a 
fixed ladder to the access point of the platform edge for side-step 
ladders must be not less than 15 and not more than 20 inches. Based on 
Figure D-10 in the existing standard, the maximum space from the edge 
of the ladder to the platform (i.e., access point) is 12 inches. As 
noted in the previous paragraph, the centerline width for a fixed 
ladder ranges from roughly 6 to 8 inches. The total step-across 
distance under the existing standard ranges from 18 to 20 inches. Thus, 
a fixed ladder that meets the existing requirements also meets the 
final requirements. Therefore, OSHA assigned no costs to this paragraph 
in the PEA and OSHA assigned no costs to this provision in this FEA.
    Sec.  1910.23(e). Paragraph (e)(1)(viii) (which impede or prohibit 
moving occupied mobile ladder stands and platforms) are the only 
paragraphs in this provision that do not have a corresponding 
requirement in a national consensus standard. However, these are work 
practice requirements that employers can meet through ladder safety 
training and enforcement. See the subsection titled ``Cost estimates'' 
below.
    All other provisions in Sec.  1910.23(e) meet the national 
consensus standard in the ANSI A14 series. An analysis of fiscal year 
2005 OSHA inspection data for violations of existing subpart D indicate 
that the failure to provide safe ladders is low (e.g., 0.2 percent of 
the violations were for portable wood ladders, 0.4 percent were for 
metal ladders, and 0.8 percent were for fixed ladders). Based on these 
data, OSHA infers that there is nearly 100 percent compliance with the 
provisions of the current consensus standards. Therefore, OSHA assigned 
no costs for equipment upgrades required by these paragraphs. However, 
OSHA assigned costs for the time it would take to ensure new ladders 
meet the technical specifications found in Sec.  1910.23(e); see ``Cost 
estimates'' below.
Step Bolts and Manhole Steps (Sec.  1910.24)
    The requirements for step bolts are new to subpart D. In the 
preliminary regulatory impact analysis for the 1990 proposed rule, OSHA 
noted, ``Manufactured products, such as ladders, step bolts, manhole 
steps . . . generally meet or exceed proposed OSHA specifications'' 
(OSHA, 1990a). A 2003 OSHA interpretation document comments that OSHA 
believes that the IEEE 1307-1996 consensus standard, in most cases, 
prevents or eliminates serious hazards (OSHA, 2003a). IEEE 1307-1996 
defines ``failure'' in a step bolt as occurring when it is bent more 
than 15 degrees below the horizontal, and Sec.  1910.24(a)(9) in the 
final standard for subpart D mirrors that definition. Because IEEE 
revised the standard in 2004, OSHA, in the most recent PEA for subparts 
D and I, assumed that industry was using the more up-to-date consensus 
standard. For this FEA, OSHA continues to assume that industry is 
complying with the 2004 IEEE standard.
    Sec.  1910.24(a)(1). This provision reads, ``[The employer must 
ensure:] Each step bolt installed on or after January 17, 2017] in an 
environment where corrosion may occur is constructed of,

[[Page 82821]]

or coated with, material that protects against corrosion.'' The 
national consensus standard applicable to this requirement is ASTM 
A394-08, Specification for Steel Transmission Tower Bolts, Zinc-Coated 
and Bare. The appendix to the consensus standard notes that the 
purchaser shall specify the dimensions of ladder bolts, step bolts, and 
equipment-support bolts. The ASTM standard describes three types of 
bolts covered by the standard:
     Type 0: Hot-dip, zinc-coated bolts made of low or medium 
carbon steel (ASTM 394-08, Section 1.1.1);
     Type 1: Hot-dip, zinc-coated bolts made of medium carbon 
steel, quenched and tempered (ASTM 394-08, Section 1.1.2); and
     Type 3: Bare (uncoated), quenched and tempered bolts made 
of weathering steel (ASTM 394-08, Section 1.1.4).\125\
---------------------------------------------------------------------------

    \125\ ATSM removed type 2 bolts from the standard in 2005.
---------------------------------------------------------------------------

    Appendix A.2 of the consensus standard mentions that bolts should 
be Type 0 unless agreed upon by the manufacturer and purchaser. That 
is, the default condition is to use zinc-coated bolts; therefore, such 
bolts would meet the OSHA requirement for corrosion resistance. 
Presumably, the use of any other bolt type means that the manufacturer 
and purchaser agreed that the bolt is appropriate for the intended 
environment and use. Since manufacturers of step bolts are unlikely to 
make non-compliant step bolts, OSHA assigned no costs to Sec.  
1910.24(a)(1) in the PEA and also assigned no cost to this provision in 
this FEA.
    Sec.  1910.24(a)(6). This provision reads, ``[The employer must 
ensure:] Each step bolt installed before January 17, 2017 is capable of 
supporting its maximum intended load.'' In the final standard, OSHA 
revised the proposed text by reducing the implementation period after 
the publication date of the final standard from 90 days to 60 days, a 
change that OSHA believes will not impose significant costs on 
employers.
    The requirement that a step bolt must be capable of supporting its 
maximum intended load is consistent with IEEE 1307-2004, Standard for 
Fall Protection for Utility Work. Section 9.1.1.1(d) in that standard 
reads:

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

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

[[Page 82822]]

[GRAPHIC] [TIFF OMITTED] TR18NO16.221

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

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[[Page 82823]]

Stairways (Sec.  1910.25)
    Sec.  1910.25(b)(5). The existing standard states that employers 
must provide a platform for doors or gates that open directly onto a 
stairway, and the swing of the door must not reduce the effective width 
to less than 20 inches. In the final standard, platforms installed 
before 60 days after the publication date of the final rule need only 
comply with the existing requirements; therefore, there are no retrofit 
costs to employers. For platforms installed on or after 60 days from 
the publication date of the final rule, the effective width increases 
to 22 inches.\127\ Employers will have an incremental cost when 
replacing a platform with one that has two inches of additional 
clearance.
---------------------------------------------------------------------------

    \127\ The 22-inch clearance requirement for new structures 
matches ANSI A1264, Section 6.11.
---------------------------------------------------------------------------

    Commenting on the proposed revision to this paragraph, Ameren 
Corporation expressed concerned about the proposed 90-day 
grandfathering timeline:

    Lead time for material orders are often quite longer than three 
months often up to years to order material for large capital 
projects. Small projects with possibly only a small amount of 
material being required shouldn't have much of an issue of complying 
depending on the manufacturer capabilities and their imposed 
deadlines. Stipulations of ``ordered'' material should be imposed in 
regard to the date of the final rule because the time between 
ordering and placing into service is often greater than 90 days. 
(Ex. 189, p. 6.)

In response, OSHA recognizes that, as Ameren indicates, some large 
projects may require a lead-time longer than 60 to 90 days. However, 
OSHA also believes that most, if not all, manufacturers of such 
platforms should be familiar with the associated consensus standard, 
ANSI A1264.1-2007, and, therefore, produce platforms now that meet the 
22-inch clearance requirement. OSHA believes that most contracts, as a 
usual and customary practice, already incorporate into the cost of the 
product the minimal increase in material cost borne by the employer to 
meet the clearance specification. For the reasons given above under the 
subsection titled ``Compliance with national consensus standards,'' 
OSHA estimated no incremental costs for this provision (Sec.  
1910.25(a)(6)) in the PEA and, for these same reasons, did not take 
incremental costs for the provision (Sec.  1910.25(b)(5)) in the final 
standard.
    Sec.  1910.25(d). Existing Sec.  1910.24(b) does not permit spiral 
stairways except under special conditions. Employers cannot use spiral 
stairs under final Sec.  1910.25(d) unless the stairs meets specific 
design specifications. Therefore, employers must modify or replace 
existing spiral staircases that do not meet these requirements. 
However, spiral staircases are likely to be relatively rare in 
commercial or industrial settings given that they are exceptions to the 
existing rule. Thus, OSHA did not assign costs to Sec.  1910.25(d) in 
the PEA. Given that no commenters objected to this preliminary cost 
estimate, OSHA is estimating no costs for this paragraph in this FEA.
    Sec.  1910.25(e). OSHA developed this paragraph in response to a 
comment made to an OMB-initiated, government-wide effort to reform 
regulation in the U.S. manufacturing sector. This comment, submitted by 
the Copper and Brass Fabricators Council, stated that OSHA required the 
use of fixed stairs when ship stairs or spiral stairways would be safer 
(OMB, 2005).
    Employers typically install ship stairs with slopes of 50 degrees 
or greater; however, the existing standard for fixed stairs addresses 
stairs installed at angles between 30 and 50 degrees, but does not 
specifically address ship stairs. Recently, OSHA issued an 
interpretation stating that if ship stairs conformed to the 1990 
proposed standard for subpart D,\128\ the Agency would consider slopes 
up to 70 degrees to be de minimis violation of the existing standard 
\129\ (OSHA, 2006b and 2006c). OSHA believes that most existing ships 
stairs conform to the 1990 proposed standard, and therefore the Agency 
assigned no costs to Sec.  1910.25(e) in the PEA, nor did it assign 
costs to Sec.  1910.25(e) in this FEA.
---------------------------------------------------------------------------

    \128\ The 1990 proposed standard allowed ship stairs that are 
designed with slopes between 50 degrees and 70 degrees from the 
horizontal; have open risers; have treads that are four inches (10 
cm) in depth, 18 inches (46 cm) in width, and a vertical rise 
between tread surfaces of six and one-half inches to 12 inches (16 
cm to 30 cm); and have handrails that are installed on both sides of 
the ship stairs and meet Sec.  1910.28 (within the existing 
standard). (55 FR 13400.)
    \129\ See OSHA's Field Operation Manual: https://www.osha.gov/OshDoc/Directive_pdf/CPL_02-00-148.pdf.
---------------------------------------------------------------------------

    Sec.  1910.25(f). The existing standard does not expressly mention 
alternating tread-type (tread) stairs. A letter of interpretation from 
OSHA to a manufacturer of alternating tread stairs concluded that these 
stairs are safe (OSHA, 1981). NFPA 101, Section 7.2.11 (NFPA, 2012) 
also addresses alternating tread stairs. As discussed in the PEA, any 
alternating tread stair that meets the requirements of NFPA 101 would 
also meet the requirements in Sec.  1910.25(f); accordingly, the PEA 
determined that this provisions does not impose a new cost burden on 
employers. Thus, in this FEA, OSHA did not assign costs to this 
provision.
Dockboards (Sec.  1910.26)
    Sec.  1910.26(b). The text for this provision states that the 
employer must ensure dockboards put into initial service on or after 
January 17, 2017 are designed, constructed, and maintained to prevent 
transfer vehicles from running off the dockboard edge. Exception: When 
the employer demonstrates there is no hazard of transfer vehicles 
running off the dockboard edge, the employer may use dockboards that do 
not have run-off protection.
    The definition of a dockboard in ANSI MH30.2-2005, Section 2.2, 
contains the language ``as well as providing a run-off guard, or 
curb,'' similar to the requirement in this final provision. OSHA 
believes, as it stated in the PEA, that nearly all dockboards 
manufactured currently conform to the ANSI standard; however, should an 
employer encounter an older, out-of-compliance dockboard, OSHA believes 
that the costs for them to comply with the final standard will be 
minimal. Therefore, in the absence of comment on this analysis, OSHA is 
not assigning costs in this FEA for final Sec.  1910.26(b).
    Sec.  1910.26(e). The text for this provision reads, ``[The 
employer must ensure:] Portable dockboards are equipped with handholds 
or other means to permit safe handling of dockboards.'' The requirement 
in final Sec.  1910.26(e) that portable dockboards have handholds or 
other means to permit safe handling is essentially the same requirement 
specified in existing Sec.  1910.30(a)(4), which OSHA based on ANSI/
ASME B56.1, American Society of Mechanical Engineers, Safety Standard 
for Low Lift and High Lift Trucks. Therefore, OSHA believes that 
commercial dockboards likely come equipped with handholds and that any 
additional costs associated with this provision will be minimal. Thus, 
OSHA in this FEA did not assign costs for final Sec.  1910.26(e).
Scaffolds and Rope Descent Systems (Sec.  1910.27)
    Sec.  1910.27(a). This paragraph extends the construction industry 
requirements for scaffolds (except rope descent systems) to general 
industry. OSHA believes that many general industry employers who use 
scaffolds also perform work covered by the construction industry 
standards and are already familiar, and in compliance, with the 
construction industry scaffold standards. Therefore, linking the final 
standard for scaffolds in general

[[Page 82824]]

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

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

    ANSI/IWCA I-14.1, Section 17, lists options for roof support 
equipment, including:
     Parapets, cornices, and building anchorages (Section 
17.1);
     Davits and davit fixtures (a crane-like structure, Section 
17.2);
     Sockets (Section 17.3);
     Tiebacks (Section 17.4);
     Counterweighted outriggers (Section 17.5);
     Parapet clamps and cornice hooks (Section 17.6); and
     Overhead monorail tracks and trolleys (Section 17.7);
    Several of these options, such as counterweighted outriggers, are 
transportable and likely supplied by the contractor. Thus, the work 
plan delineates how the employer is to perform the work using a mix of 
contractor and property-owner equipment. The consensus standard 
provides several acceptable options for roof support equipment, and 
specifies that both the contractor and property owner concur with the 
work plan, and that the work plan describe how the contractor will 
perform the job safely. For the PEA, OSHA presumed that voluntary 
compliance with the consensus standard is likely to be high. However, 
as described in detail below, comments in the record indicate that 
industry compliance with the provision for sound anchorages varies 
considerably. In the PEA, OSHA assigned no costs for equipment; 
however, the Agency did estimate costs for inspections and 
certification that anchorages meet requirements. OSHA discusses these 
costs below in the subsection titled ``Cost estimates.''
    Sec.  1910.27(b)(2)(i). Rope descent systems are an alternative to 
powered platforms. The final rule states that employers cannot use rope 
descent systems at heights greater than 300 feet unless they 
demonstrate that it is not feasible to access such heights by any other 
means or that those means pose a greater hazard to employees than using 
a rope descent system. The wording of the final rule is consistent with 
the industry consensus standard, ANSI/IWCA I-14.1, 2001. Accordingly, 
both the IWCA consensus standard and the final OSHA standard (1) 
prohibit the use of rope descent systems for descents exceeding 300 
feet, and (2) contain an exclusion clause, which, in the case of the 
IWCA standard, provides that the requirement apply unless ``access 
cannot safely and practicably be obtained by other means.'' Because 
both the IWCA and OSHA standards contain a similar exclusion clause, 
the OSHA requirement is no more restrictive than the consensus 
standard.
    Since this is a work-practice as opposed to an equipment-
specification requirement, incremental costs are attributable to the 
OSHA standard only to the extent that employers would not voluntarily 
comply with the IWCA standard and to the extent that employers provide 
excess-risk documentation to OSHA. Employers, therefore, would incur 
costs from this provision only when (1) a building is 300 feet tall or 
higher, and (2) there is an alternative to the rope descent system that 
is feasible and at least as safe as an RDS. For the PEA, ERG examined a 
database developed by the Council on Tall Buildings and Urban Habitat 
(CTBUH) and identified slightly more than 1,900 buildings in the United 
States that are 300 feet (91.7 m) tall or higher (CTBUH, 2006). Over 25 
percent of these buildings are in New York City, where state law does 
not allow the use of rope descent systems for window cleaning 
(DiChacho, 2006). Accordingly, ERG derived an estimate of 1,500 
potentially affected buildings nationwide (ERG, 2007). For the PEA, 
OSHA assumed that some of these 1,500 buildings have permanently 
installed power platforms for access to the exterior of the building, 
and further assumed that using a platform would be less expensive than 
setting up an RDS.
    For this FEA, OSHA examined the CTBUH database described above and 
determined that, currently: Approximately 1,960 existing buildings are 
300 feet or higher; of that total, roughly 600 buildings with a height 
of 300 feet or greater are in New York City; and two states--California 
and Minnesota--have statutes that limit the RDS descent distance to, 
respectively, 130 feet and 300 feet (CA-DIR, 2012; Minnesota, 2012). 
After subtracting the number of buildings in those three states from 
the total, OSHA conservatively estimates that the 300-foot limit 
specified by this final standard would affect 1,300 buildings with a 
height of 300 feet or greater.\130\
---------------------------------------------------------------------------

    \130\ Valcourt Building Services estimated that 2.6 percent of 
its window washing operations involve buildings that are 300 feet or 
greater in height (Ex. 358). If OSHA applies that percentage to the 
number of all commercial buildings subject to the suspended 
scaffolds standard and, therefore, potentially affected by the 300-
foot limit (DOE, 2006), the resulting estimate is significantly 
greater than the CTBUH estimate. This finding suggests that 
Valcourt's operations involve an unusually large proportion of 
buildings that are taller than 300 feet.
---------------------------------------------------------------------------

    The final set of buildings for which Sec.  1910.27(b)(2) could 
result in costs are those buildings for which employers use RDS due to 
technical factors specific to a building's history, architecture, or 
style of operation. For example, to wash regularly the windows of a 
tall building with many sharp angles or tiered levels, management may 
find it cost-effective to contract for RDS rather than powered 
platforms. OSHA expects that there will be additional costs to the 
building owners in these situations because of factors discussed below 
under ``Cost estimates.''
    Sec.  1910.27(b)(2)(ii)-(xiii). With one exception, these 
paragraphs in the final standard codify safety provisions presented in 
the 1991 memorandum to OSHA's Regional Administrators, which are 
similar to the requirements now specified in the national consensus 
standard, ANSI/IWCA I-14.1 (OSHA, 1991b). The safety provisions in this 
ANSI standard that mirror the OSHA memo are:
     Training employees in the use of the equipment;

[[Page 82825]]

     Inspecting the equipment each day before use and removing 
of damaged equipment from service;
     Using proper rigging, including sound anchorages and 
tiebacks, in all cases, with particular emphasis on providing tiebacks 
when using counterweights, cornice hooks, or similar non-permanent 
anchorage systems;
     Using a separate personal fall arrest system;
     When installing lines, using knots, swages, or eye splices 
when rigging RDS that are capable of sustaining a minimum tensile load 
of 5,000 pounds;
     Providing prompt rescue of employees;
     Effectively padding ropes where they contact edges of a 
building, anchorage, obstructions, or other surfaces that might cut or 
weaken the rope; and
     Providing stabilization at the work location when descents 
are greater than 130 feet.
    A provision in the OSHA memo not duplicated in the ANSI standard is 
the requirement in final Sec.  1910.27(2)(b)(xi), which specifies that 
no employee may use an RDS under hazardous weather conditions, such as 
storms or gusty or excessive wind. OSHA estimates that this new 
provision is not likely to present a significant burden on employers 
because of the relatively high levels of current compliance with the 
provision (see, for example, Ex. 329 (1/19/2011), pp. 213, 346, 411-
412) and the Agency's expectation, based on comments in the record (Ex. 
329 (1/19/2011), pp. 235-236, 361), that employers will respond to wind 
conditions by adjusting window cleaning operations to minimize lost 
revenue and added project costs (for example, scheduling window 
cleaning operations on short buildings when weather conditions would 
create a hazard for window cleaning operations on tall buildings).
    The proposed regulatory text updated the 1991 OSHA memo by using 
terminology such as ``prompt rescue'' rather than ``rescue'' and 
``harness'' rather than ``body belt,'' but, as it stated in the PEA, 
OSHA did not believe that these revision would increase compliance 
costs. Other revisions to the 1991 OSHA memo made in the proposal, and 
now in the final standard, include the addition of three safety 
provisions to the original list of safety provisions described above. 
These three provisions include:
     Using equipment in accordance with the instructions, 
warnings, and design limitations set by manufacturers or qualified 
persons (final Sec.  1910.27(2)(b)(ii));
     Securing equipment by a tool lanyard or similar method to 
prevent equipment from falling (final Sec.  1910.27(2)(b)(xii)); and
     Protecting suspension ropes from exposure to open flames, 
hot work, corrosive chemicals, or other destructive conditions (final 
Sec.  1910.27(2)(b)(xiii)).
    In the PEA, OSHA stated that the eight safety provisions listed in 
the 1991 OSHA memo, the provision dealing with wind and other weather 
hazards, and the additional three provisions described in the previous 
paragraph, would not impose significant costs on employers. None of the 
comments submitted to the proposal provided any evidence contradicting 
this analysis.
    OSHA determined in the PEA that the training requirements in 
proposed Sec.  1910.27(b)(2)(ii), now codified as final Sec.  
1910.27(b)(2)(iii), imposed costs on employers. Final Sec.  
1910.27(b)(2)(iii) specifies that employers provide training in 
accordance with Sec.  1910.30. Therefore, OSHA assigned the costs for 
training beyond that noted in its 1991 memorandum to Sec.  1910.30. 
OSHA discusses these costs under ``Cost estimates'' below.
    The Agency identified two additional provisions, final Sec.  
1910.27(b)(2)(xii) and (b)(2)(xiii), in the PEA as having potential 
costs.\131\ The requirement specified by final Sec.  1910.27(b)(2)(xii) 
to secure equipment is consistent with consensus standard IWCA I-14.1-
2001, Section 3.10. Thus, OSHA did not assign incremental costs to this 
requirement in either the PEA or this FEA.
---------------------------------------------------------------------------

    \131\ In the proposal, these two provisions are Sec.  
1910.27(b)(2)(x) and (xi).
---------------------------------------------------------------------------

    The requirement in final Sec.  1910.27(b)(2)(xiii) that employers 
protect suspension ropes from exposure to open flames, hot work, 
corrosive chemicals, or other destructive conditions, is an extension 
of the requirement to protect the integrity of the ropes specified in 
OSHA's 1991 OSHA memorandum. OSHA attributed the costs for meeting this 
requirement under the training costs estimated in Sec.  1910.30, and 
described below under ``Cost estimates.''
Duty To Have Fall Protection and Falling Object Protection (Sec.  
1910.28)
    The revised regulatory text for final Sec.  1910.28 consolidates 
the fall protection requirements in the existing rule, with two major 
revisions. First, comments submitted in response to the reopening of 
the rule in 2003 recommended that the fall protection requirements in 
subpart D be consistent with the requirements in subpart M of the 
construction standards. The final text for Sec.  1910.28 makes the 
general industry fall protection requirements consistent with the 
construction requirements, which may impose additional costs on 
employers in general industry. In addition, the existing standard does 
not address the use of restraint systems, designated areas, or safety 
net systems, nor does the existing standard clarify when employers can 
use personal fall protection systems. In contrast, the final standard 
allows employers to choose from various options in providing fall 
protection, i.e., it is not as restrictive as the existing standard, 
which primarily requires use of guardrails.
    In the proposal, OSHA requested public comment on the expenses that 
employers typically would incur to comply with this requirement. 
Stakeholders raised concerns about the compliance burden of this 
provision when conducting routine inspections on roofs. These 
stakeholders included the Property Casualty Insurers Association of 
America (Ex. 98), the Massachusetts Institute of Technology (MIT; Ex. 
156), the National Roofing Contractors Association (NRCA; Ex. 197), and 
the U.S. Chamber of Commerce (Ex. 202). MIT's comments, presented 
below, are typical of these responses:

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

[[Page 82826]]

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

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

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

[[Page 82827]]

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

[[Page 82828]]

anticipates that there will be no additional costs associated with the 
requirement in the final standard that qualified climbers be outfitted 
with full body harnesses. Proposed Sec.  1910.28(b)(10)(vi), now 
codified as final Sec.  1910.28(b)(10)(ii)(C), specifies that the 
employee is to have both hands free of tools and material while 
climbing up or down the ladder. In the PEA, OSHA assigned a cost to 
this paragraph; in this FEA, the Agency discusses these costs below 
under ``Cost estimates.''
    Under final Sec.  1910.28(b)(10)(ii)(D), climbers must use an 
appropriate fall protection system after they reach their work 
positions. OSHA attributed the cost of these systems to the existing 
standard for fixed ladders. Thus, the Agency estimated no additional 
costs for equipment required by this provision in either the PEA or in 
this FEA.
    Proposed Sec.  1910.28(b)(10)(iii) required that employers follow 
inspection procedures for ladder safety systems. Final Sec.  1910.29(i) 
now delineates the inspection procedures identified in the proposed 
requirement. OSHA did not specify in the proposed rule the frequency of 
inspection, but in the PEA assumed that inspections would occur prior 
to each use. OSHA assigned costs to this paragraph in the PEA, and 
discusses these costs below under ``Cost estimates'' in this FEA.
    Final paragraph (b)(11) requires that employers protect workers 
from falling off stairway landings and the exposed sides of all 
stairways. Stairways, as defined in the final rule in Sec.  
1910.21(b)), includes standard stairs, ship stairs, spiral stairs, and 
alternating tread-type stairs. As noted earlier in the summary and 
explanation of the final standard, final paragraph (b)(11)(i), like the 
proposal, requires that employers ensure each worker exposed to an 
unprotected side or edge of a stairway landing that is four feet or 
more above a lower level is protected by a guardrail or stair rail 
system. The final requirement is consistent with the requirements for 
stairway landings specified by the existing general industry standard 
in Sec.  1910.24(h) and the construction standard in Sec.  
1926.1052(c)(12). The final provision is also consistent with A1264.1-
2007 (Section 7.1), NFPA101-2012 (Sections 7.1.8 and 7.2.2.4.5), and 
ICC IBC-2012 (Section 1013.2), except that NFPA and IBC require guards 
on open-sided walking surfaces that are located more than 30 inches 
above the floor or grade below.
    Final paragraph (b)(11)(ii), consistent with existing Sec.  
1910.23(d)(1) and proposed paragraph (b)(11)(ii), requires that 
employers ensure each flight of stairs having at least three treads and 
at least four risers is equipped with a stair rail system and handrails 
as specified in Table D-2.
    Final paragraph (b)(11)(iii), like the proposal, requires that 
employers ensure ship stairs and alternating tread-type stairs are 
equipped with handrails on both sides. Both of those types of stairs 
have slopes that are 50 to 70 degrees from the horizontal, and OSHA 
believes that workers need handrails on both sides to safely climb 
those stairs. This requirement is consistent with ICC IBC-2012 (Section 
1009.15) and NFPA 101-2012 (Section 7.2.11.2).
    In the PEA, OSHA recognized that compliance with existing consensus 
standards for stairways and stairway landings will eliminate much of 
the employee exposure to fall hazards addressed by proposed Sec.  
1910.28(b)(11). Therefore, the Agency estimated no costs for this 
paragraph in the PEA. OSHA received no comments in the record that 
contradicted this preliminary assessment. Because as shown above in 
Table V-16, updated versions of the same consensus standards for 
stairways apply to the final standard, OSHA assigned no costs to 
paragraph (b)(11) in this FEA.
    Sec.  1910.28(b)(12). Final Sec.  1910.28(b)(12)(i), which 
addresses the duty to provide fall protection for employees on 
scaffolds, refers to the construction standards at 29 CFR part 1926, 
subpart L (Scaffolds), thereby avoiding any inconsistencies between the 
general industry and construction standards. Fall protection on 
scaffolds in the construction standards generally follows consensus 
standards; thus, in the PEA, based on the estimated high level of 
current compliance with the construction standards or consensus 
standards, OSHA assigned no costs to this paragraph, and retained that 
cost estimate for this FEA.
    Final Sec.  1910.28(b)(12)(ii) requires that employers ensure that 
each employee using a rope descent system more than four feet (1.2 m) 
above is protected from falling by a lower level using a personal fall 
arrest system. Such systems must meet the requirements of 29 CFR part 
1910, subpart I. OSHA addresses the costs associated with rope descent 
systems in ``Cost estimation'' below as part of the discussion of Sec.  
1910.27, Scaffolds and rope descent systems.
    Sec.  1910.28(b)(13) and (14). These two paragraphs are new to 
final subpart D and introduce additional compliance costs for employers 
specializing in, respectively, rooftop services (paragraph (b)(13)) and 
work on platforms and other elevated surfaces in animal slaughtering 
and animal processing plants (paragraph (b)(14)). Discussion of these 
costs appears in the next subsection, ``Cost estimates.''
    Sec.  1910.28(b)(15). OSHA proposed this paragraph covering 
walking-working surfaces not otherwise addressed by the standard to 
clarify existing Sec.  1910.23(c)(3), which requires a railing and 
toeboard for these types of surfaces. In the final rule, the revised 
language restricts the requirement to working surfaces four feet or 
more above a lower level, and permits the employer to comply with the 
paragraph by using a guardrail, safety net system, travel restraint 
system, or personal fall arrest system. Assuming that employers will 
choose the least-cost compliance option and that current industry use 
of conventional fall protection is widespread, OSHA in the PEA assigned 
costs to one surface, stepbolts, that appeared to be newly affected. 
OSHA determined that this requirement for protection on stepbolts will 
primarily affect establishments in NAICS 51, Information, and NAICS 
7113, Promoters of performing arts, sports, and similar events, and 
that the preferred fall protection will be ladder safety systems. In 
the next subsection, ``Cost estimates'', OSHA discusses its final 
analysis of costs for this paragraph.
    Sec.  1910.28(c). Final paragraph (c) requires that employers 
protect workers from being hit by falling objects, such as objects 
falling through holes or off the sides or edges of walking-working 
surfaces onto workers below. In addition, final paragraph (c) requires 
that employers protect workers using one or more of the following 
measures:
     Erecting toeboards, screens, or guardrail systems to 
prevent objects from falling to a lower level (final paragraph (c)(1));
     Erecting canopy structures and keeping potential falling 
objects far enough from an edge or opening to prevent them from falling 
to a lower level (final paragraph (c)(2)); or
     Barricading the area into which objects could fall, 
prohibiting workers from entering the barricaded area, and keeping 
objects far enough from the edge or opening to prevent them from 
falling to the lower level (final paragraph (c)(3)).
    Final paragraph (c) simplifies the final rule by consolidating into 
a single paragraph all of the provisions that address falling objects 
found in the existing standard at Sec.  1910.23(b)(5) and (c)(1) and 
the proposed rule at paragraphs (b)(3)(iii), (b)(5)(i), (b)(14)(ii)). 
The final rule is consistent with the proposal and patterned on the 
construction standard (Sec.  1926.501(c)).

[[Page 82829]]

Therefore, because the final standard introduces no additional burden 
on employers beyond existing requirements, and because there were no 
comments in the record suggesting that additional economic impacts 
would result, OSHA expects that final paragraph (c) will impose no new 
costs.
Fall Protection Systems and Falling Object Protection--Criteria and 
Practices (Sec.  1910.29)
    Final Sec.  1910.29, like the proposed rule, establishes system 
criteria and work practice requirements for fall protection systems and 
falling object protection specified by final Sec.  1910.28, Duty to 
have fall protection and falling object protection, and Sec.  1910.140, 
Personal fall protection equipment.
    Final Sec.  1910.29 requires that employers ensure the fall 
protection system and falling object protection they select meets the 
specified criteria and practice provisions. In general, OSHA patterned 
the system criteria and work practice requirements in final Sec.  
1910.29 to be consistent with its construction standards (Sec. Sec.  
1926.502 and 1926.1053). As mentioned in the preamble to final Sec.  
1910.28 and Sec.  1910.29, many commenters supported making the general 
industry fall and falling object protection requirements consistent 
with those in the construction industry (e.g., Exs. 124; 155; 194).
    Final Sec.  1910.29 reorganizes the existing rule so that the 
format of the final rule is consistent with the format in the 
construction fall protection standard at Sec.  1926.502 and also draws 
provisions from, and is consistent with, national consensus standards 
addressing personal fall protection systems and falling object 
protection, including:
     ANSI/ASC A14.3-2008: American National Standards for 
Ladders-Fixed (A14.3-2008) (Ex. 8);
     ANSI/ASSE A1264.1-2007, Safety Requirements for Workplace 
Walking/Working Surfaces and Their Access; Workplace, Floor, Wall and 
Roof Openings; Stairs and Guardrails Systems (ANSI/ASSE A1264.1-
2007)(Ex. 13); and
     ANSI/ASSE A10.18-2012, Safety Requirements for Temporary 
Roof and Floor Holes, Wall Openings, Stairways, and Other Unprotected 
Edges in Construction and Demolition Operations (ANSI/ASSE A10.18-2012) 
(Ex. 388).
    Final paragraph (b) contains system requirements employers must 
follow to ensure guardrail systems they use will protect workers from 
falling to lower levels. In developing final paragraph (b), OSHA 
carried forward, with some revision, many of the requirements from the 
existing rule (e.g., existing Sec.  1910.23), and drew the requirements 
from the construction fall protection standard at Sec.  1926.502(b).
    OSHA analyzed the potential economic impacts of final Sec.  
1910.29(b) and anticipates that only paragraphs (b)(13) and (15) could 
potentially impose significant cost impacts, while the existence of the 
consensus standards listed above and other factors affecting current 
practice will result in no costs for all other paragraphs in Sec.  
1910.29(b). The Agency's review of the impacts associated with 
paragraphs (b)(13) and (15) is given immediately below.
    Sec.  1910.29(b)(13). This final paragraph revises a related 
provision in the proposed standard by specifying that guardrail systems 
used around points of access (e.g., ladderways) must have a self-
closing gate that slides or swings away from the hole, with the gate 
constructed with a top rail, midrail, and latch or, alternatively, are 
offset to prevent a worker from walking or falling into the hole.
    In two separate comments, Intrepid Industries, Inc. (Intrepid), 
recommended that OSHA clarify the proposed requirement by recognizing 
recent technological developments in ladderway gates. Intrepid noted in 
its comments that when OSHA published the 1990 proposal, multiple 
horizontal rails were `` `foreign' to industry,' '' that since 
publication of the 1990 proposal, ``a majority of protection devices 
have both a top rail and a mid rail similar to that of the guardrail . 
. . ,'' and that such gates are equivalent in strength and design to 
guardrail systems and are widely available throughout industry (Exs. 
68; 366). Therefore, having adopted Intrepid's recommended 
clarification in the final rule, OSHA estimates that few affected 
employers will need to replace current ladderway gates, resulting in a 
negligible cost burden for employers. Accordingly, as in the PEA, OSHA 
did not assign any costs to this provision.
    Sec.  1910.29(b)(15). This final paragraph, as did the proposal, 
requires that employers inspect manila, plastic, or synthetic rope used 
for top rails or midrails as frequently as necessary to ensure that it 
meets the specified strength requirements. OSHA addresses the 
inspection costs for this final paragraph below in ``Cost estimates.''
    Sec.  1910.29(c). Both the proposed and final paragraphs require 
that employers ensure safety net systems meet the requirements in the 
construction standards at 29 CFR part 1926, subpart M, thus avoiding 
any inconsistencies between general industry and construction 
standards. Given that the safety net system requirements in the 
construction standards follow current consensus standards, OSHA in the 
PEA estimated that this requirement had no incremental costs. OSHA 
received no comments to the proposal addressing this analysis and, 
therefore, attributed no costs to final Sec.  1910.29(c) in this FEA.
    Sec.  1910.29(h). This final paragraph outdoor advertising 
operations, and sets forth the criteria for the use of qualified 
climbers, which it limits to these operations. In the PEA, OSHA modeled 
the costs to train and, as necessary, retrain qualified climbers. That 
is, OSHA assumed that qualified climbers required training beyond that 
now required for fixed ladders and, furthermore, OSHA believed that 
employers would incur additional costs associated with the requirement 
that the employer observe the performance to ensure the qualified 
climber has the skills necessary to perform the climb safely.
    The final standard permits the use of qualified climbers up to two 
years after publication of the rule, after which outdoor advertising 
employers must protect employees engaged in outdoor advertising from 
fall hazards in accordance with provisions of Sec.  1910.28. Therefore, 
although OSHA's estimate of costs associated with the criteria 
enumerated in Sec.  1910.29(h) would not apply two years after 
publication of the final rule, OSHA retained those costs in this final 
analysis to account for any training costs connected with transitioning 
to the use of ladder safety systems or other fall protection measures 
on fixed ladders. OSHA discusses the cost estimates for final Sec.  
1910.29(h) below under ``Cost estimates.''
    The other requirements in final Sec.  1910.29, include the 
requirements found in final paragraphs (d) Designated areas, (e) 
Covers, and (f) Handrail and stair rail systems, (g) Cages, wells, and 
platforms used with fixed ladders, (i) Ladder safety systems, (j) 
Personal fall protection systems, (k) Protection from falling objects, 
and (l) Grab bars (specified as ``Grab handles'' in the NPRM). OSHA in 
the PEA noted that there already is significant, widespread compliance 
with the proposed requirements among general industry employers, 
resulting in the proposed requirements imposing minimal incremental 
cost burden on employers. OSHA requested feedback from the public on 
this analysis, but received no comments to this request. Therefore, in 
this FEA, OSHA assigned no costs to paragraphs (d) Designated areas, 
(e)

[[Page 82830]]

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

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

    For a number of cost categories, there were no public comments on 
the PEA. For those cases, OSHA updated the applied unit wage and the 
numbers of affected employers and employees to reflect the revised 
profile, but retained the cost methodology used in the PEA. For 
provisions in the final standard for which OSHA adjusted the 
preliminary cost estimate, the Agency describes the form of the cost 
revision and the public comments that lead to the final cost estimate.
a. Estimated Compliance Costs by Provision in the Final Standard for 
Subpart D
    Labor costs associated with compliance with the final standard 
generally involve additional employer and supervisor time for training 
and inspection. OSHA took the number of establishments and employees 
from Statistics of U.S. Businesses: 2007. The Agency based the number 
of employees covered by subparts D and I on the share of employees 
working in building and grounds; construction; \133\ installation, 
maintenance, and repair; production; and material-moving occupations 
reported by the Bureau of Labor Statistics, Occupational Employment 
Statistics (BLS, 2007). See section C above in this FEA for additional 
industry-profile information.
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    \133\ As noted earlier in this FEA, production workers include 
workers in building and grounds; construction; installation, 
maintenance, and repair; production; and material-moving 
occupations. It is possible that employees in construction and 
related occupations, even though not employed by establishments in 
construction industries, might perform work regulated by OSHA under 
its construction standards in 29 CFR part 1926. Therefore, the 
employers of these workers, depending on the type of work performed, 
also may have to meet the requirements for fall protection and 
walking-working surfaces specified in the construction standards. 
For the purpose of estimating costs, however, OSHA assumed that the 
general industry standards cover these employees.
---------------------------------------------------------------------------

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

[[Page 82831]]

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

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

[GRAPHIC] [TIFF OMITTED] TR18NO16.223

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

[[Page 82832]]

correction or repair that involves the structural integrity of a 
walking-working surface.
    There were no public comments that addressed OSHA's preliminary 
approach to estimating costs the costs for these paragraphs. For the 
final standard, OSHA revised all three provisions from the proposed 
language for clarification.
    For the purpose of estimating costs for Sec.  1910.22(d)(1), OSHA 
in the PEA assumed that a significant percentage of facilities already 
include regular and periodic inspections of walking-working surfaces. 
OSHA used the non-compliance rates for floor-guarding in proposed Sec.  
1910.23 (which has the highest non-compliance rates, see Table V-15) to 
estimate the number of establishments that need to perform regular and 
periodic inspections of walking-working surfaces. OSHA assumed that a 
supervisor would spend 15 minutes every quarter performing the 
inspection, for a total of 1 hour per year. Based on these unit costs, 
OSHA preliminarily estimated that the total annual inspection cost 
would be $15.3 million.
    Relative to the existing and proposed standards, the final standard 
provides more specificity in the types of hazards for which employers 
will be inspecting walking-working surfaces (namely, protruding or 
sharp objects, loose boards, corrosion, leaks and spills). Included 
among the inspected surfaces will be residential roofs (addressed in 
Sec.  1910.28(b)(1)), low-slope roofs (Sec.  1910.28(b)(13)), and 
slaughtering facility platforms (Sec.  1910.28(b)(14)), surfaces whose 
inclusion in the scope of the proposed standard is recognized by OSHA 
in this final notice. As a result of further analysis of these affected 
surfaces, OSHA believes that regular and periodic inspections will be 
more extensive than determined in the PEA. For this final analysis, 
OSHA raised the quarterly inspection time from 15 minutes to 30 
minutes. Therefore, OSHA estimated the final cost for paragraph Sec.  
1910.22(d)(1) to be $32.8 million.\135\
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    \135\ For timber tract operations (NAICS 1131), costs are 
estimated by multiplying together 450 establishments (see Table V-
1), 9.6 percent noncompliance rate for existing floor guarding 
requirements (see Table V-15), two hours per supervisor, and a 
$26.10 hourly loaded wage (see Table V-5), yielding a result of 
$2,263. Analogous calculations are performed for each industry and 
summed to produce the total of $32.8 million.
---------------------------------------------------------------------------

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

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

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

[[Page 82833]]

[GRAPHIC] [TIFF OMITTED] TR18NO16.224

    The PEA determined that employers could address all eight of these 
new provisions in a single training session. In addition, OSHA 
determined that employers can comply with these provisions using 
informal training; therefore, the Agency did not include administrative 
costs for employers. For this FEA, OSHA added a ninth provision, Sec.  
1910.23(c)(9), addressing stabilization of ladders on slippery 
surfaces, to its analysis of costs, and applied the same cost modeling 
parameters here as it did in the PEA.
    OSHA's Web site includes a resource center with a loan program for 
training videos (OSHA, 2012b). The index lists 12 training videos for 
ladders and stairways, with run times ranging from 5 to 19 minutes, for 
an average of 12 minutes. Accordingly, for the purposes of estimating 
costs for ladder safety training, OSHA in the PEA and this FEA applied 
a 15-minute training period per video.
    In OSHA's cost model, employers can train 10 employees per session, 
with one supervisor in attendance. OSHA further assumed that employers 
incur $1 in materials cost for handouts for each employee trained.
    Some establishments already provide regular safety training. For 
each affected NAICS industry, OSHA applied an estimate for the 
percentage of employees already providing training. OSHA's derived its 
industry-by-industry baseline estimate for safety training from the 
NIOSH National Occupational Exposure Survey (NOES) database (NIOSH, 
1988). Although these data are over 25 years old, the NIOSH NOES survey 
is still the primary source for such information, and covers a broad 
range of industries. No comment in the record suggested that the NIOSH 
NOES survey data are no longer accurate. Furthermore, OSHA believes 
that the proportion of employees already offered regular safety 
training likely increased over the past two decades; hence, the Agency 
most likely overestimated the training costs.
    The cost to train employees at establishments that do not offer 
regular safety training is a one-time cost annualized over a 10-year 
period at a discount rate of 7 percent. Summing across all affected 
employers, the total first-year cost is $11.5 million, with an 
annualized cost of $1.6 million.\137\
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    \137\ For gambling industries (NAICS 7132), costs are estimated 
by first multiplying together 5,240 employees (see Table V-1) and 
the 33.6 percent rate of not yet providing training (=1-0.664 shown 
in Table V-20), yielding an estimate of 1,761 employees that do not 
yet receive training. Next, this estimate is multiplied by the sum 
of worker time costs (0.25 hours times an $18.80 hourly production 
worker loaded wage (see Table V-5)), materials costs ($1 per 
employee) and instructor time costs (0.25 hours times a $38.66 
hourly supervisor loaded wage (see Table V-5), divided by 10 to 
reflect a 10-worker class size), yielding a result of $11,736 (= 
$8,274 labor cost + $1,761 materials cost + $1,701 instructor cost). 
Analogous calculations are performed for each industry and summed to 
produce the total of $11.5 million.

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[[Page 82834]]

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

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

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

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

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

[[Page 82835]]

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

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

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

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

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

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

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

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

[[Page 82836]]

three requirements in final paragraph (b)(2) exceed the requirements 
specified in a national consensus standard, ASTM C478-13, for steps in 
precast concrete manhole sections:
     Manhole steps must have slip-resistant surfaces such as 
corrugated, knurled, or dimpled surfaces;
     Manhole steps must be constructed of, or coated with, 
material that protects against corrosion in an environment where 
corrosion may occur; and
     The design of manhole steps must prevent the employee's 
foot from slipping or sliding off the end of the manhole step.
    OSHA expects that employers will identify any deficiencies in 
manhole steps through compliance with final paragraph (b)(3); that 
provision requires that employers ensure manhole steps are inspected at 
the start of the work shift, and maintained in accordance with Sec.  
1910.22. In estimating the cost of the manhole-step inspection 
requirement specified by proposed paragraph (b)(3) in the PEA, OSHA 
estimated there are between 6.6 million and 13.2 million manholes, with 
a mid-point estimate of 9.9 million, nearly all of which are in water, 
sewage, and related utilities. Of these manholes, approximately 85 
percent, or 8.4 million manholes, are 20 feet or less in depth, while 
the remainder, 15 percent or 1.5 million manholes, are more than 20 
feet in depth. In the PEA, OSHA estimated that employees would enter 10 
percent of all manholes, on average, and that it would take one minute 
to inspect the steps prior to entering the manhole. That analysis 
resulted in an estimated annual cost of $0.4 million for the industry 
most affected by this requirement, NAICS 2213 (Water, sewage, and other 
systems). After updating the wage rate for production workers in NAICS 
2213, OSHA's final estimate for inspection of manhole equipment, 
including steps, totals $0.5 million.
    Other industries also use manholes for access, such as electric-
power generation, transmission, and distribution (NAICS 2211) and 
natural-gas distribution (NAICS 2212). ERG, however, had no data on the 
number of manholes for those industry groups, and although OSHA assumed 
in the PEA that the costs would be proportional to the number of 
manholes estimated for water and sewage systems, OSHA was not able to 
estimate costs for NAICS 2211 and 2212. The Agency requested, but did 
not receive, public comment in the proposal on the impact of the 
inspection requirement on these and any other affected industries. 
Therefore, for this FEA, OSHA assumed that, for NAICS 2211 and 2212, 
employers seldom encounter manholes, and that when they do encounter 
manholes, they routinely inspect the manhole steps to ensure that the 
steps meet or exceed the requirements of the final rule. Therefore, 
OSHA determined that, under the final standard, any incremental costs 
for manhole fall protection in NAICS 2211 and 2212 will not be 
significant.
    Employers would incur costs for slip-resistant and corrosion-
resistant manhole step surfaces required by proposed paragraphs 
(b)(2)(i) and (ii) in the future because employers would replace 
manholes with steps at the end of their useful life. As described 
above, OSHA estimates there are 9.9 million manholes, of which 85 
percent are 20 feet or less in depth and 15 percent are more than 20 
feet in depth. In the PEA, OSHA assumed that manholes less than or 
equal to 20 feet in depth used portable ladders, fixed ladders, and 
steps in equal shares, resulting in 2.9 million manholes with steps, 
while it assumed that manholes more than 20 feet in depth used fixed 
ladders and steps in equal shares, resulting in 0.7 million manholes 
with steps. This analysis, therefore, indicates that the proposed 
requirement would affect 3.6 million manholes. The manhole step 
selected from vendor lists in the PEA had a per-unit cost of $8.50, and 
OSHA assumed that this price included a 10 percent premium for the 
steps to meet the proposed requirements (ERG, 2007).
    Applying the unit values and methodological assumptions described 
above for this FEA, OSHA estimated annual replacement costs for steps 
by applying a 10 percent rate for annual entry of manholes and, of that 
number, applying a 10-percent rung failure rate. At the incremental 
cost of $0.85 each (10 percent of $8.50 per rung), the estimated annual 
replacement cost for steps is $0.03 million ($31,000). OSHA estimated 
annual replacement costs for all manhole-access equipment (including 
steps, but excluding manhole covers) assuming a baseline of ten percent 
and further assuming that employers would replace 5 percent of this 
equipment each year and would install steps every 16 inches. 
Accordingly, the estimated yearly manhole replacement cost is $1.6 
million, and combining this cost with OSHA's final estimate of costs 
for inspection of manhole equipment, including steps ($0.5 million), 
OSHA derives a total cost of $2.1 million for manhole fall protection 
under the final rule (after rounding).
    For this FEA, OSHA has included the labor costs for annual 
replacement of manhole steps or rungs that are judged to be out of 
compliance with the final standard. OSHA applied a baseline compliance 
rate of ten percent for affected utilities, estimated that removal of 
the old rung or step and replacement with a new one will involve 15 
minutes of labor per rung or step (hourly loaded wage of $30.47 for a 
production worker in NAICS 2213 (water, sewage utilities)), and 
multiplied unit labor cost times the total number of affected steps, or 
1.83 million steps after adjusting for baseline.\144\ Combining those 
cost factors, the Agency estimates that labor costs for removal and 
replacement of defective rungs or steps will total $13.9 million.
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    \144\ 1.06 million steps or rungs in manholes less than 20 ft. 
deep (28,611 in single-rung manholes and 1,144,440 in multi-rung 
manholes) + 780,000 steps or rungs in manholes more than 20 ft. deep 
(7,425 in single-rung manholes and 853,875 in multi-rung manholes) = 
2.03 million steps or rungs (100%-10% baseline) = 1.83 million steps 
or rungs. See Document ID [OSHA Excel Workbook], Tab 
materials_24_manholes.
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    Combining costs for inspections and repair of step bolts and 
manhole steps, OSHA estimates that the final costs associated with 
Sec.  1910.24, Stepbolts and manhole steps, will total $16.0 million.
Scaffolds and Rope Descent Systems (Sec.  1910.27)
    Training. Paragraph (b)(2)(ii) of proposed Sec.  1910.27 and 
paragraph (b)(2)(iii) of the final Sec.  1910.27 specify training 
requirements for rope descent systems. As described earlier in this 
``Costs of Compliance'' section, OSHA attributed costs for any training 
beyond what is done as a result of the 1991 OSHA memorandum on descent-
control devices to final Sec.  1910.30 (see below).
    Sound anchorages. In the PEA, costs assigned to ensure sound 
anchorages as required by proposed Sec.  1910.27(b)(iv) involved: (1) A 
qualified/competent person who would inspect the rigging and anchorages 
on buildings annually, and (2) a professional engineer who would 
certify the soundness of the rigging and anchorages every 10 years.
    According to an industry expert contacted by ERG, an estimated 3.0 
million window cleaning descents take place annually at 750,000 
buildings in the U.S. (ERG, 2007). In the absence of comments on the 
PEA in the proposal, OSHA is retaining these estimates in this FEA for 
the inspection and certification requirements specified by final Sec.  
1910.27(b)(1)(i). Using data collected by the Department of Energy 
(DOE) for surveys on energy use, ERG compared this estimate with the 
number of commercial and residential buildings with four or more 
floors. The 2003

[[Page 82837]]

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

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

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

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

    OSHA's final standard provides more detailed requirements for 
anchorages used with rope descent systems than the proposed standard. 
Final Sec.  1910.27(b)(1)(i) states that before any rope descent system 
is used, the building owner must inform the employer, in writing, that 
the building owner has identified, tested, certified, and maintained 
each anchorage so it is capable of supporting at least 5,000 pounds 
(268 kg), in any direction, for each employee attached. The information 
must be based on an annual inspection by a qualified person and 
certification of each anchorage by a qualified person, as necessary, 
and at least every 10 years.
    Therefore, for this FEA, OSHA revised upward its estimate of the 
baseline level for anchor certification. Accordingly, OSHA believes 
that the current baseline is at least 35 percent nationwide, and may be 
much higher in some markets. For example, the owner of Chicago's 
largest window cleaning company testified in OSHA's public hearings on 
the NPRM that in Chicago, 60 to 70 percent of building owners provide 
documentation of anchor certification (Ex. 329 (1/19/2011), p. 218). 
Similarly, the owner of one of Houston's leading window cleaning 
companies testified that every building owner that he works with 
provides certification of anchorages (Ex. 329 (1/19/2011), p. 310). 
Recognizing that in some smaller markets, anchor certification may not 
be as widespread or frequent as suggested by these commenters, OSHA 
applied a baseline level of 35 percent for anchor certification and 
inspection in estimating costs for this requirement in the FEA.
    Therefore, if 65 percent of the approximately 750,000 buildings 
that have windows cleaned each year must now comply with the final 
inspection and certification requirement, then OSHA estimates that 
487,500 buildings will require annual inspections and decennial 
certifications. In the PEA, OSHA further assumed that a production 
supervisor would perform the annual inspections, and that it would take 
this supervisor one hour to perform the inspection. Annual costs in the 
PEA for the building inspections totaled $16.7 million; after adjusting 
wage rates to 2010 levels and applying the revised baseline estimate, 
OSHA in this FEA estimates annual costs of $14.1 million for the 
inspection of building roof anchorages.
    Table V-23 summarizes the range in costs for a professional 
engineer to certify building anchorages; OSHA drew these cost estimates 
from comments in the record, and adjusted the estimates to 2003 dollars 
using as the deflator the Consumer Price Index--All Urban Consumers 
(BLS, 2007). The costs range from a low of $175 to a high of $2,500; 
this range probably represents the variation in building sizes, 
complexity of anchorage arrangements, and regional standards. The 
median value is $1,000, which is the estimate (in 2005 dollars) applied 
by OSHA in the PEA.
[GRAPHIC] [TIFF OMITTED] TR18NO16.226


[[Page 82838]]


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

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

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

[[Page 82839]]

[GRAPHIC] [TIFF OMITTED] TR18NO16.227


[[Page 82840]]


[GRAPHIC] [TIFF OMITTED] TR18NO16.228

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

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

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

[[Page 82841]]

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

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

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

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

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

[[Page 82842]]

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

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

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

[[Page 82843]]

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

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

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

[[Page 82844]]

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

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

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

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

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

[[Page 82845]]

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

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

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

[[Page 82846]]

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

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

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

    \160\ For example, for NAICS 2211: Electric power generation, 
transmission and distribution, in the Utility industry sector, the 
cost calculation was as follows: ((1,529 very small establishments * 
0.17 hours) + (152 small establishments * 0.25 hours) + (30 mid-size 
establishments * 0.33 hours) + (44 large establishments * 0.5 
hours)) * ($54.24 production worker supervisor hourly wage for NAICS 
2211) = $17,620. Analogous calculations were performed for each 
industry and summed to produce a total of $28.5 million in first-
year costs. See Ex. [OSHA Excel workbook], tab Rule Familiarization.
[GRAPHIC] [TIFF OMITTED] TR18NO16.229


[[Page 82847]]


7. Cost Summary
    Tables V-25 through V-27 summarize the costs by industry for each 
paragraph in the final standard. Table V-25 lists the first-year costs, 
which employers incur once to comply with the new requirements. For 
evaluating economic impacts, OSHA annualized these one-time costs over 
a 10-year period at a discount rate of 7 percent. Total first-year 
costs for final subparts D and I are $319.5 million, with annualized 
costs for the first year of $45.5 million.
    Table V-26 lists the recurring annual costs, such as inspections, 
training new employees, and maintaining safe conditions when fall 
hazards remain; OSHA estimates these costs to be $259.0 million. Table 
V-27 lists the annual costs by industry, which include the sum of the 
recurring costs and the annualized one-time costs; OSHA estimated these 
costs at $305.0 million.
    Listing annualized costs in descending order by section of the 
rule, OSHA projects that the most costly provisions address training 
programs ($74.2 million), scaffolds and rope descent systems ($71.6 
million), duty to have fall protection and falling-object protection 
($55.9 million), and general requirements ($33.2 million). Of these 
final costs, the most significant change in costs from the PEA involve 
the costs associated with the duty to have fall protection and falling-
object protection (Sec.  1910.28) ($55.9 million in FEA vs. $0.09 
million in the PEA) because the strengthened requirements for fixed 
ladders, roof edges, slaughtering platforms, and step bolts lead to 
additional employer expenditures for equipment and labor.
    For the category with the second largest compliance costs, 
scaffolds and rope descent systems, the final standard provides greater 
specificity than the proposal regarding the need for proper rigging, 
including sound anchorages and tiebacks. The final rule at Sec.  
1910.27(b)(1)(i) and (ii) states that before any rope descent system is 
used, the building owner must inform the employer, in writing that the 
building owner has identified, tested, certified, and maintained each 
anchorage so it is capable of supporting at least 5,000 pounds (22.2 
kN) in any direction, for each employee attached and, moreover, that 
the employer must ensure that no employee uses any anchorage before the 
employer has obtained written information from the building owner that 
each anchorage meets the requirements of paragraph (b)(1)(i). Finally, 
the employer must keep the information on building anchorages for the 
duration of the job. The information must be based on an annual 
inspection conducted by a qualified person, with certification of each 
anchorage performed by a qualified person, as necessary, but at least 
every 10 years. As described earlier in this cost analysis, OSHA 
assumed that building owners and employers would comply with this 
requirement by scheduling periodic inspections and certifications of 
building anchorages.
    Because of the hazards associated with cleaning windows of office 
buildings and other tall structures while suspended on scaffolds or 
other devices (see Table V-6 for the number of reported fatalities in 
NAICS 561, Administrative and Support Services), OSHA raised the issue 
of proper safety during window cleaning in the 2003 notice that 
reopened the rulemaking record, and in the 2010 NPRM. In those notices, 
OSHA requested comment on the hazards associated with window cleaning 
and the safe practices recommended and implemented for the use of rope 
descent systems (68 FR 23534; 75 FR 28862). OSHA based its analysis of 
the costs of ensuring sound anchorages and rigging, described above, as 
well as the Agency's analysis of the costs for protecting workers on 
rope descent systems and suspended scaffolds, on the experiences and 
observations of the industry representatives who responded to OSHA's 
request for comment in 2003 and in OSHA's 2010 NPRM; therefore, the 
Agency believes that the record fully supports this cost analysis.
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BILLING CODE 4510-29-C

G. Economic Feasibility and Regulatory Flexibility Screening Analysis

1. Introduction
    OSHA determined that the costs of complying with the requirements 
of final subparts D and I will not impose substantial economic impacts 
on employers in the industries affected by the final rule. The costs 
imposed by the final standards are modest, and the increased safety and 
reduction in injuries and fatalities associated with the standards will 
reduce employers' direct and indirect costs. OSHA based this final 
economic-impacts analysis on the PEA, the rulemaking record, and 
revisions to OSHA's preliminary data as described above in section C 
(``Profile of Affected Industries, Firms, and Workers'') and section F 
(``Costs of Compliance'').
    Table V-28 summarizes OSHA's final estimate of impacts (annualized 
costs) for the two-digit NAICS industry groups affected by the final 
standards. ``Minimum'' and ``Maximum'' refer to the lowest and highest 
costs among the four-digit NAICS industries categorized within the two-
digit group. The following section discusses OSHA's methodology for 
assessing the significance of the impacts at the aggregate level 
presented in Table V-29 and at levels of greater industry detail.
2. Economic Screening Analysis
    To determine whether the final rule's projected costs of compliance 
would raise issues of economic feasibility for employers in affected 
industries, i.e., would adversely affect the competitive structure of 
the industry, OSHA first compared compliance costs, annualized at a 7 
percent discount rate, to industry revenues and profits. OSHA then 
examined specific factors affecting individual industries for which 
compliance costs represent a significant share of revenue, or for which 
the record contains other evidence that the standards could have a 
significant impact on the competitive structure of the industry.
    As noted, OSHA examined the potential impacts of the final rule two 
ways, i.e., as a percentage of revenues and as a percentage of profits. 
Table V-29 presents the estimated average receipts and profits by 
establishment and industry. In the PEA, OSHA, applying the methodology 
employed by ERG (ERG, 2007), estimated 2006 receipts based on 2002 
receipts and payroll data from U.S. Census Bureau, Statistics of U.S. 
Businesses, 2002, and payroll data from U.S. Census Bureau, Statistics 
of U.S. Businesses, 2006. For that calculation, OSHA assumed that the 
ratio of receipts to payroll remained unchanged between 2002 and 2006.
    For this FEA, OSHA applied Statistics of U.S. Businesses, 2007 data 
on establishments, firms, and revenue at the four-digit NAICS level. 
OSHA estimated profits from ratios of net income to total receipts as 
reported for 2000-2008 (nine-year average) by the U.S. Internal Revenue 
Service, Corporation Source Book (IRS, 2009). Profit data were not 
available at disaggregated levels for all industries; therefore, OSHA 
used profit rates at more highly aggregated levels for such industries.
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    OSHA compared the baseline financial data with total annualized 
incremental costs of compliance by computing compliance costs as a 
percentage of revenues and profits. The Agency considers this impact 
assessment for all firms, presented in Tables V-28 and V-29, to be a 
screening analysis and the first step in OSHA's analysis of whether the 
compliance costs potentially associated with the final standards would 
lead to significant impacts on establishments in the affected 
industries. The impact of the final standards on the viability of 
establishments in a given industry depends, to a significant degree, on 
the price elasticity of demand for the services sold by establishments 
in that industry.
    Price elasticity refers to the relationship between the price 
charged for a service and the quantity of that service demanded; that 
is, the more elastic the relationship, the less able is an 
establishment to pass the costs of compliance through to its customers 
in the form of a price increase, and the more it will have to absorb 
the costs of compliance from its profits. When demand is inelastic, 
establishments can recover most of the costs of compliance by raising 
the prices they charge for that service; under this scenario, profit 
rates remain largely unchanged, and the industry remains largely 
unaffected. Therefore, any impacts are primarily on the consumers using 
the relevant services. However, when demand is elastic, establishments 
cannot recover all the costs simply by passing the cost increase 
through in the form of a price increase. Instead, they must absorb some 
of the increase from their profits, commonly by both reducing the 
quantity of goods and services produced and reducing total profits, 
though, in some cases, profits rate may remain unchanged. If demand is 
not perfectly elastic and if at least some of the costs in question are 
variable rather than fixed, ``when an industry is subject to a higher 
cost, it does not simply swallow it, it raises its price and reduces 
its output, and in this way shifts a part of the cost to its consumers 
and a part to its suppliers,'' as the court stated in American Dental 
Association v. Secretary of Labor (984 F.2d 823, 829 (7th Cir. 1993)).
    The court's summary is in accordance with micro-economic theory 
(subject to some caveats discussed below). In the long run, firms can 
only remain in business if their profits are adequate to provide a 
return on investment that ensures that investment in the industry will 
continue. Over time, because of rising real incomes and productivity, 
firms in most industries are able to maintain adequate profits. As 
technology and costs change, however, the long-run demand for some 
products increases and the long-run demand for other products 
decreases. In the face of rising external costs, firms that otherwise 
have a profitable line of business may have to increase prices to stay 
viable. Commonly, increases in prices result in reduced quantity 
demanded, but rarely eliminate all demand for the product. Whether this 
decrease in production results in smaller production for each 
establishment within the industry or in closing some plants within the 
industry, or a combination of these two effects, depends on the cost 
and profit structure of individual firms within the industry.
    If demand is completely inelastic (i.e., price elasticity is 0), 
then the impact of variable compliance costs (that is, costs that 
depend directly on the quantity of output produced) that are 1 percent 
of revenues for each firm in the industry would result in a 1 percent 
increase in the price of the product or service, with no decline in 
quantity demanded. Such a situation represents an extreme case, but 
might be correct in situations in which there are few if any 
substitutes for the product or service in question, or if the products 
or services of the affected sector account for only a small portion of 
the income of its consumers.
    If demand is perfectly elastic (i.e., the price elasticity is 
infinitely large), then no increase in price is possible and before-tax 
profits would decrease by an amount equal to the costs of compliance 
(minus any savings resulting from improved employee health and/or 
reduced insurance costs) should the industry attempt to keep producing 
the same amount of goods and services. Under this scenario, if the 
costs of compliance are such a large percentage of profits that some or 
all plants in the industry can no longer invest in the industry and 
receive an adequate return on investment, then some or all of the firms 
in the industry will close. The scenario of perfectly elastic demand 
can only arise when there are other goods and services that are, in the 
eyes of the consumer, perfect substitutes for the goods and services 
the affected establishments produce.
    A common intermediate case would be a price elasticity of one. In 
this situation, if the costs of compliance amount to 1 percent of 
revenues and are entirely variable rather than fixed, then production 
would decline by 1 percent and prices would rise by 1 percent over the 
long run. In this case, the industry revenues would stay the same, with 
somewhat lower production, but with similar profit rates. However, 
consumers would get less of the product or the service for their 
expenditures, and producers would have lower total profits; this, as 
the court described in American Dental Association v. Secretary of 
Labor, is the more typical case.
    If compliance costs are fixed--that is, they do not depend on 
quantity of output produced--they cannot be passed through to consumers 
in the short run. In the medium- to long-run, however, some producers 
may exit the industry, or new producers may fail to enter an industry 
to replace natural exit, thus decreasing total supply, increasing 
prices, and reducing the portion of costs borne by producers that 
remain in the industry (except in the case of perfectly elastic demand, 
as discussed above).
    However, there is still the question of whether these costs will 
reduce significantly the industry's competitive structure. For example, 
if an industry faces a 20 percent increase in costs due to a standard, 
and its product has an elasticity of demand of one, the industry may 
likely remain viable. However, if the standard leads to closing all 
small firms in the industry, this result would indicate that standard 
impaired the competitive structure of the industry. For this reason, 
when costs are a significant percentage of revenues, OSHA examines the 
differential costs by size of firm and other classifications that may 
be important.
    As indicated by the impact estimates shown in Tables V-28 and V-29, 
OSHA determined that, for all affected establishments in general 
industry, revenue impacts will not exceed 0.2 percent for any affected 
industry group, and profit impacts will not exceed 3.1 percent for any 
affected industry group. Therefore, the economic impact of the final 
rule will most likely consist of a small increase in prices of less 
than 0.2 percent for the goods and services provided by the affected 
employers. It is unlikely that a price increase of the magnitude of 0.2 
percent will significantly reduce the quantity of goods or services 
demanded by the public or any other affected customers or 
intermediaries. If industry can recoup substantially the compliance 
costs of the final rule with such a minimal increase in prices, there 
may be little effect on profits.
    In general, for most establishments, it would be unlikely that they 
could not pass some of the compliance costs along in the form of 
increased prices. In the event that unusual circumstances may inhibit 
even a price increase of 0.2 percent, profits in the majority of

[[Page 82873]]

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

H. Regulatory Flexibility Screening Analysis

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

[[Page 82874]]

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

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

OSHA disagrees with this comment because, first, all employers 
providing chimney-cleaning services would face the new requirements at 
the same time and, therefore, would have few incentives to hold the 
price of the services steady at pre-regulation levels with the 
expectation of gaining enough additional business to offset the 
compliance costs.
    Second, chimney-cleaning services involve almost exclusively 
domestic American businesses. Therefore, international-trade factors 
would not present competitive pressures to keep prices at the baseline 
levels (thereby reducing profits).
    Third, under the final rule, in the event that conventional fall 
protection is infeasible or creates a greater hazard, employers could 
develop a fall protection plan, the costs of which are likely to be 
minimal because templates for such plans should be readily available on 
the Internet. In such cases, employers likely would pass the cost 
forward to customers.
    Finally, OSHA believes the increase in price resulting from the 
cost increase would be modest. Accordingly, the price increase would 
not dissuade homeowners from continuing a contractual relationship with 
chimney-cleaning services.
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    OSHA's impact analysis for small entities indicates that one other 
industry, NAICS 2213--Water, sewage and other systems, will experience

[[Page 82925]]

significant profit impacts under a worst-case scenario: Costs are 5.3 
percent of profits for entities defined as small by the SBA, and costs 
are 11.7 percent of profits for entities with fewer than twenty 
employees. While profit impacts at these levels suggest that utilities 
in NAICS 2213 may have to reduce operations substantially if they are 
unable to pass forward to customers the approximately $3,441 in 
annualized compliance costs, OSHA expects that most water and sewage 
employers will not experience profit impacts of that severity. First, 
whereas the estimate of revenue per small entity (fewer than 100 
employees) in 2007 is approximately $823,000 (Tables V-2 and V-32), 
according to 2012 Census data, revenue per small entity in NAICS 2213 
rose to $956,000. Assuming those higher per-entity revenues continued 
up until the scheduled compliance with this final standard, the impacts 
of costs on revenue and profit would be less severe than suggested 
using the 2007 receipts data.
    Moreover, there is reason to think that OSHA's data understates 
actual profits for small utilities. Many small utilities are organized 
as cooperatives and a modest percentage of utilities file income tax 
returns as S Corporations, and the tax law allows both types of 
entities to pass profits back to members without being taxed as income 
at the business level. According to IRS data,\161\ of the 3,216 tax 
returns filed by utilities (NAICS 22) as S corporations in 2012, only 
2,693 S-corporation utilities reported net income, suggesting that of 
the 5,973 firms in NAICS 22 in 2012, just under 9 percent ((3,216 S 
returns filed--2,693 S returns with net income)/5,973 total returns in 
NAICS 22) may have had profit that was not reported as income on the 
corporate return. However, they would have been included in the balance 
sheet data that formed the basis for the calculation of the average 
profit rate, 5.4 percent, for NAICS 2213. As evidence supporting this 
conclusion, IRS data indicate that for S utility corporations that 
reported net income, 2012 profit rates averaged 9.7 percent.\162\ 
Therefore, if the overall nine-year (2000-2008) average profit rate for 
NAICS 2213 underestimates the actual profit rate for the industry, 
impacts resulting from compliance with this final standard may be 
overstated in Tables V-32 and V-33.
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    \161\ See https://www.irs.gov/uac/soi-tax-stats-s-corporation-statistics, Table 1: Returns of Active Corporations, Form 1120S and 
Table 2: Returns with Net Income, Form 1120S.
    \162\ See https://www.irs.gov/uac/soi-tax-stats-s-corporation-statistics, Table 2: Returns with Net Income, Form 1120S. For 
Utilities in 2012, Total net income (less deficit) = $689,965 
thousand, or $690.0 million, and Total Receipts = $7,112,150 
thousand, or $7.1 billion. Profit rate = $690 million/$7.1 billion = 
9.7 percent.
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3. A Statement of the Need for, and Objectives of, the Rule
    Employees in general industry performing construction, 
installation, maintenance, and repair tasks are exposed to a range of 
significant slip, trip, and fall hazards that cause serious injury and 
death. OSHA estimates that approximately 202,100 serious injuries and 
345 fatalities occur annually among these employees. Although employers 
could prevent some of these incidents with increased compliance with 
existing safety standards, research and analyses conducted by OSHA 
found that many preventable injuries and fatalities would continue to 
occur even if employers achieved full compliance with the existing 
standards. Without counting incidents that employers could potentially 
prevent by complying fully with existing standards, OSHA estimates that 
full compliance with these final standards would prevent 5,842 
additional injuries and 29 fatalities annually, even with full 
compliance with the existing standard.
    As explained above, additional benefits associated with this 
rulemaking involve providing updated, clear, and consistent safety 
standards regarding fall protection in general industry to the relevant 
employers, employees, and interested members of the public. The 
existing OSHA standards for walking-working surfaces in general 
industry are over 30 years old and inconsistent with the more recently 
promulgated standards addressing fall protection in construction. OSHA 
believes that the final updated standards are easier to understand and 
to apply than the existing standard, thereby benefiting employers and 
employees by facilitating compliance and improving safety.
4. Response to Comments Filed by the Small Business Administration
    The Small Business Administration's Chief Counsel for Advocacy (SBA 
Advocacy) submitted comments into the rulemaking record following 
publication of the NPRM. SBA Advocacy's comments (Ex. 124) covered four 
broad areas; OSHA addresses each area below.
    Area 1: ``OSHA should not include vague, overly-broad, `general 
duty clause' type requirements.''
    OSHA's response: SBA Advocacy expressed concern that some 
provisions, such as proposed Sec.  1910.22(a)(3) which required 
employers to ``ensure that all surfaces are designed, constructed and 
maintained free of recognized hazards,'' lacked detail and precise 
definition, and would, therefore, place an unreasonable compliance 
burden on employers. In the final standards, OSHA revised the proposed 
language of paragraph (a)(3) to provide specific examples of the types 
of hazards addressed by this provision--e.g., protruding or sharp 
objects, spills. The final regulatory text no longer requires that 
employers identify and correct all ``recognized'' hazards.
    Area 2: ``OSHA should further synchronize the proposed general 
industry rule with the existing construction standard.''
    OSHA's response: OSHA believes that, to the extent possible given 
the technological and work-organization differences between general 
industry and construction, the final standards mesh closely with the 
construction fall protection standards. Whenever possible, to avoid 
duplication, inconsistency, or overlap, the final standards reference 
the OSHA construction standards (for example, Sec.  1910.27(a), 
Scaffolds; Sec.  1910.28(b)(12), Scaffolds and rope descent systems; 
and Sec.  1910.29(b), Guardrail systems reference part 1926).
    Area 3: ``OSHA should not expand its reading of Section 1910.22 to 
regulate combustible dust.''
    OSHA's response: As noted in this preamble and in the preamble to 
the NPRM, OSHA interprets the housekeeping provisions in subpart D as 
applying to combustible-dust accumulations associated with fire and 
explosion hazards. Regarding this interpretation, one court stated that 
``the housekeeping standard is not limited to tripping and falling 
hazards, but may be applied to [a] significant accumulation of 
combustible dust'' (Con Agra, Inc. v. Occupational Safety and Health 
Review Commission, 672 F.2d 699, 702 (8th Cir. 1982), citing Bunge 
Corp. v. Secretary of Labor, 638 F.2d 831, 834 (5th Cir. 1981), which 
reached the same conclusion). Following publication of the NPRM, OSHA 
received no evidence that the regulated community had technological or 
economic concerns about including combustible dust in the scope of the 
housekeeping section of final subpart D. Therefore, OSHA will continue 
to regulate combustible-dust hazards on walking-working surfaces in 
this final standard.
    Area 4: ``OSHA should not regulate commercial motor vehicles 
(trucks) under the proposed rule.''
    OSHA's response: Based on comments and testimony received on both 
the 2003 Reopening Notice and the 2010 Proposed Rule, OSHA finds it is 
sometimes feasible to provide fall protection for rolling stock where 
it is not contiguous or next to a structure.

[[Page 82926]]

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

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

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

I. Sensitivity Analyses

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

[[Page 82931]]

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

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

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

[[Page 82936]]

J. References

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Consumption Survey. Table B10: ``Number of Floors, Number of 
Buildings and Floorspace for Non-Mall Commercial Buildings.'' Energy 
Information Administration, 2006. http://www.eia.doe.gov/emeu/cbecs/cbecs2003/detailed_tables_2003/detailed_tables_2003.html.
Department of Energy (DOE, 2004). 2001 Residential Energy 
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DiChacho, Rosita (DiChacho, 2006). Personal communication between 
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Health, Engineering Services Unit and Maureen F. Kaplan, Eastern 
Research Group, August 23, 2006.
Eastern Research Group, Inc. (ERG, 2007). Technical and Analytical 
Support and Docket Review for OSHA's Preliminary Analysis of Costs, 
Benefits, and Economic Impacts for OSHA's Proposed Standard for 
Walking and Working Surfaces. Final Report. Prepared under Contract 
No. GS10F0125P for the U.S. Department of Labor, Occupational Safety 
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(Ex. OSHA-2007-0072-0046).
Eastern Research Group, Inc. (ERG, 1999). PPE Cost Survey: Final 
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0667 (Ex. OSHA-S042-2006-0667-0318).
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Register 75: 4996. http://www.fmcsa.dot.gov/rules-regulations/administration/rulemakings/final/Safety-Requirements-Small%20Passenger-Carrying-CMVs-in-Interstate.pdf. Accessed May 29, 
2013.
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Accessed by ERG on July 24, 2006.
International Window Cleaning Association (IWCA, 2014). ``The High 
Cost of Non Compliance with the ANSI/IWCA I-14 Window Cleaning 
Safety Standard'' and ``IWCA Resources for Building Owners & 
Property Managers.'' http://www.iwca.org/.
Kreidenweis, Andy (Kreidenweis, 2003). Comments submitted to OSHA 
Docket S-029. Andy Kreidenweis, Braco Window Cleaning Service Inc., 
July 30, 2003. Docket OSHA-S029-2006-0662 (Ex. OSHA-S029-2006-0662-
0186).
Lebel, Marc (Lebel, 2003). Comments submitted to OSHA Docket S-029. 
Marc Lebel, President, Pro-Bel Enterprises Limited, July 18, 2003. 
Docket OSHA-S029-2006-0662 (Ex. OSHA-S029-2006-0662-0069).
Leigh, J.P., and J.P. Marcin, 2012. ``Workers' Compensation Benefits 
and Shifting Costs for Occupational Injury and Illness,'' Journal of 
Occupational and Environmental Medicine, April, 54(4): 445-50.
Lebel, Marc (Lebel, 2003). Comments submitted to OSHA Docket S-029. 
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Docket OSHA-S029-2006-0662 (Ex. OSHA-S029-2006-0662-0069).
Minnesota Office of the Revisor of Statutes (Minnesota, 2012). 
Minnesota Rule 5205.0730, ``Window Cleaning; Building Maintenance.'' 
2011 Minnesota Statutes, 182.655, ``Occupational Safety and Health 
Standards.'' https://www.revisor.mn.gov/rules/?id=5205.0730. 
Accessed on March 30, 2012.
National Academy of Social Insurance (NASI, 2012). ``Workers' 
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National Coalition Against the Misuses of Pesticides (NCAMP, 1997). 
``Poison Poles--A Report About Their Toxic Trail and Safer 
Alternatives.'' Estimate of Pole Miles and Distribution Poles by 
State, 1997. http://www.beyondpesticides.org/wood/pubs/poisonpoles/.
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[[Page 82937]]

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of Experience Rating on Small Employers: Would Lowering the 
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Occupational Safety and Health Administration (OSHA, 2006c). 
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installation of fixed industrial stairs with a slope between 50 
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Occupational Safety and Health Administration (OSHA, 2003a). 
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23568, May 2, 2003.
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of Variance.'' Federal Register 56: 8801, March 1, 1991. http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=FEDERAL_REGISTER&p_id=13148. Accessed 
by ERG on August 26, 2006.
Occupational Safety and Health Administration (OSHA, 1990a). 
``Preliminary Regulatory Impact and Regulatory Flexibility Analysis 
of Proposed Subparts D and I of 29 CFR Part 1910 Walking and Working 
Surfaces.'' Occupational Safety and Health Administration, Office of 
Regulatory Analysis, March 6, 1990. Docket OSHA-S041-2006-0666 (Ex. 
OSHA-S041-2006-0666-0689).
Occupational Safety and Health Administration (OSHA, 1990b). 
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Occupational Safety and Health Administration (OSHA, 1981). Standard 
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Classification System--2007. Executive Office of the President, 
2007.
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the U.S. Manufacturing Sector. March 2005. http://www.whitehouse.gov/sites/default/files/omb/assets/omb/inforeg/reports/manufacturing_initiative.pdf.
Office of Management and Budget (OMB, 2003). Regulatory Analysis. 
Circular A-4, September 17, 2003. http://www.whitehouse.gov/omb/circulars/a004/a-4.pdf.
Platts.com (Platts, 2007). 2007 UDI Directory of Electric Power 
Producers and Distributors, 115th Edition, Electrical World 
Directory. The McGraw-Hill Companies, 2007.
Seong, Si Kyung and John Mendeloff (Seong and Mendeloff, 2008). 
``Assessing the Accuracy of OSHA's Projections of the Benefits of 
New Safety Standards.'' American Journal of Industrial Medicine 
45(4): 313-328, 2004.
Small Business Administration (SBA, 2010). Table of Small Business 
Size Standards Matched to North American Industry Classification 
System Codes, 2010. http://www.sba.gov/content/table-small-business-size-standards.
Small Business Administration (SBA, 1996). Regulatory Flexibility 
Act of 1980 (Pub. L. 96-354), amended by the Small Business 
Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121).
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Businesses, 2002/2006. http://www.census.gov/csd/susb/index.html.
U.S. Environmental Protection Agency (U.S. EPA, 2010). Guidelines 
for Preparing Economic Analyses. EPA 240-R-10-001, December 2010. 
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U.S. Internal Revenue Service (IRS, 2013). 2010 Corporation Source 
Book, Publication 1053. http://www.irs.gov/uac/SOI-Tax-Stats-Corporation-Source-Book:-U.S.-Total-and-Sectors-Listing Accessed by 
OSHA on 4/19/2013.
U.S. Internal Revenue Service (IRS, 2009). Corporation Source Book. 
http://www.irs.gov/uac/SOI-Tax-Stats-Corporation-Source-Book:-U.S.-Total-and-Sectors-Listing. Accessed, 2009.
U.S. Internal Revenue Service (IRS, 2003). Corporation Source Book, 
2003. http://www.irs.gov/taxstats/bustaxstats/article/0,,id=149687,00.html.
Urban Institute/Brookings, 2012. ``Historical Average Federal Tax 
Rates for All Households,'' Tax Policy Center, October. Available at 
http://www.taxpolicycenter.org/taxfacts/displayafact.cfm?Docid=456.

[[Page 82938]]

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

Appendix A. Derivation of Prevention Factor Adjustments

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

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

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BILLING CODE 4510-29-C

VI. Federalism

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

    \164\ The OSH Act defines an ``occupational safety and health 
standard'' as ``a standard which requires conditions, or the 
adoption or use of one or more practices, means, methods, operations 
or processes, reasonably necessary or appropriate to provide safety 
and healthful employment and places of employment'' (29 U.S.C. 
652(8)).
---------------------------------------------------------------------------

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

    Section 202 also authorized the Industrial Board of Appeals 
(Industrial Board) to ``make rules to effectuate the purposes of the 
section.'' It specifies that those rules shall be applicable 
exclusively throughout the state, notwithstanding any other general or 
local law or regulation, and that the Commissioner of Labor shall have 
``exclusive authority'' to enforce sec. 202 and the rules issued 
thereunder (N.Y. Lab. Law sec. 202). Pursuant to sec. 202, the 
Industrial Board has issued regulations for the ``protection of persons 
engaged at window cleaning;'' however, they do not include specific 
provisions directed at protecting the public (N.Y. Comp. Codes R. & 
Regs. part 21). The regulations specify, among other things, that 
employees shall not be permitted to clean windows other than ``in 
accordance with an authorized means and methods'' (N.Y. Comp. Codes R. 
& Regs. sec. 21.3(b)(2) (emphasis added)). The following means and 
methods are the only ones the regulations authorize employers to use 
for cleaning windows:
     Working from safe surfaces;
     Working from window sills or ledges;
     Working from ladders;
     Working from boatswain's chairs;
     Working from scaffolds (12 N.Y. Comp. Codes & Regs. sec. 
21.4).
    The authorized means and methods do not include rope descent 
systems (RDS) \166\ or identify whether

[[Page 82976]]

``boatswain's chairs'' \167\ include RDSs. However, New York State 
Department of Labor (NYSDOL) advisory standards on practices and 
procedures for the use of boatswain's chairs expressly prohibit 
employers from using controlled descent devices (CDDs) \168\ for window 
cleaning (Advisory Standards for Construction, Operation and 
Maintenance of Suspended Scaffolds used for Window Cleaning and Light 
Maintenance, 101-1, 101-3 Design Components, sec. 9(b)(ii)).
---------------------------------------------------------------------------

    \166\ The final rule defines a rope descent system as a 
suspension system that allows an employee to descend in a controlled 
manner and, as needed, stop at any point during the descent. A rope 
descent system usually consists of a roof anchorage, support rope, a 
descent device, carabiner(s) or shackle(s), and a chair (seatboard). 
A rope descent system also is called controlled descent equipment or 
apparatus. Rope descent systems do not include industrial rope 
access systems (final Sec.  1910.21(b)). The final rule requires 
that RDSs be used in conjunction with a separate personal fall 
arrest system to protect workers if a fall occurs (Sec.  
1910.27(b)(2)(vi)).
    \167\ Existing Sec.  1910.21(f)(2) defines a boatswain's chair 
as a ``seat supported slings attached to a suspended rope, designed 
to accommodate one workman in a sitting position.'' OSHA's 
construction cranes and derricks standard, revised in 2010, defines 
boatswain's chair as ``a single-point adjustable suspension scaffold 
consisting of a seat or sling (which may be incorporated into a full 
body harness) designed to support one employee in a sitting 
position'' (29 CFR 1926.1401). In the proposed rule OSHA 
characterized rope descent systems as ``a variation of a single-
point adjustable suspension scaffold'' (proposed Sec.  1910.21(b)). 
Several stakeholders said OSHA's characterization was not accurate 
because RDS and controlled descent devices only travel downward 
whereas single-point adjustable suspension scaffolds, such as 
boatswain's chairs, can go up and down. (Exs. 62; 168; 205). The 
final rule clarifies that RDS are not a boatswain's chair or a type 
of single-point adjustable suspension scaffold (final Sec.  
1910.21(b)).
    \168\ The definition of ``rope descent system'' (RDS) in final 
Sec.  1910.21(b) states that RDS also are called CDDs.
---------------------------------------------------------------------------

    The final rule (Sec.  1910.27(b)), on the other hand, allows 
employers to use RDSs for activities performed at elevated heights, 
including window cleaning. Final Sec.  1910.27(b)(2)(i) limits the use 
of RDSs to elevations not exceeding 300 feet above grade; however, 
employers may use RDSs at greater heights if they can demonstrate that 
it is not feasible to access such heights by any method other than an 
RDS or other means pose a greater hazard than using an RDS.
    OSHA received many comments on the proposed rule. Many 
stakeholders, including window cleaning companies and window cleaners, 
supported allowing employers to use RDSs, including at heights above 
300 feet (e.g., Exs. 138; 147; 163; 184; 221; 242; 243; 329 (1/19/2011, 
pgs. 326-29). Also, many stakeholders, including many New York window 
cleaners, opposed the proposed rule (e.g., Exs. 131; 224; 311; 313; 
314; 316; 319; 329 (1/19/2011; pgs. 5-8, 17-19; 354). They urged that 
OSHA, like New York, prohibit the use of RDSs for window cleaning and 
indicated concerns about the potential preemptive effect of the final 
rule on New York's window cleaning laws and regulations.
    The question of whether a state law is preempted by Federal law is 
one of congressional intent (Gade v. National Solid Wastes Management, 
505 U.S. 88, 96 (1992)). In Gade,\169\ a five-justice majority said the 
language of Section 18 of the OSH Act indicates Congress' intent to 
preempt state occupational safety and health regulations relating to an 
issue that Federal OSHA already has regulated, unless the state has an 
OSHA-approved State Plan (Id., at 98).
---------------------------------------------------------------------------

    \169\ Gade addressed the preemptive effect of OSHA's Hazardous 
Waste Operations and Emergency Response standard (29 CFR 1910.120) 
on Illinois laws establishing training and license requirements for 
hazardous waste equipment operators and workers. Illinois did not 
have an approved State Plan at the time.
---------------------------------------------------------------------------

    A four-justice plurality determined the state law, absent an 
approved State Plan, is impliedly pre-empted'' (Id., at 98 (Congress' 
intent is ``implicitly contained in the [OSH Act's] structure and 
purpose'')). The plurality said language in Section 18(b) requiring 
that a state ``shall submit a State plan'' for approval if it desires 
to assume responsibility for developing and enforcing standards on an 
occupational safety and health issue that Federal OSHA has regulated, 
evidences Congress' intent to preempt where there is no approved plan:

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

    The plurality noted that other parts of Section 18 also support 
preemption absent an approved plan (Id., at 100-102). Looking at 
Section 18 as a whole, the plurality was persuaded that Congress sought 
``to promote occupational safety and health while at the same time 
avoiding duplicative, and possibly counterproductive, regulation'' 
(Id., at 102). Therefore, they concluded that, absent an approved plan, 
any state regulation of an OSHA-regulated occupational safety or health 
issue is preempted as being in conflict with ``the full purposes and 
objectives'' of the OSH Act. The plurality also concluded that allowing 
a state without a -State Plan to supplement Federal OSHA standards, 
even non-conflicting laws,\170\ would be inconsistent with the 
``federal scheme of establishing uniform federal standards, on one 
hand, and encouraging States to assume full responsibility of their own 
OSH programs, on the other'' (Id., at 103).
---------------------------------------------------------------------------

    \170\ OSHA notes that New York's laws and regulations and final 
Sec.  1910.27 are not non-conflicting regulations. Rather, it is ``a 
physical impossibility'' for employers and employees to comply with 
both the final rule, which allows the use of RDSs, and New York's 
regulations, which prohibit their use (Gade, 505 U.S. at 98). If 
employers use RDSs in accordance with final Sec.  1910.27(b) to 
clean windows up to 300 feet above grade, they violate New York's 
regulations.
---------------------------------------------------------------------------

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

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

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

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

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

[[Page 82977]]

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

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

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

VII. State-Plan Requirements

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

VIII. Unfunded Mandates Reform Act

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

[[Page 82978]]

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

IX. Consultation and Coordination With Indian Tribal Governments

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

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

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

[[Page 82979]]

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

[[Page 82980]]

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

XI. Dates

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


[[Page 82981]]


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

List of Subjects in 29 CFR Part 1910

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

Authority and Signature

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

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

Final Regulatory Text

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

PART 1910--OCCUPATIONAL SAFETY AND HEALTH STANDARDS

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

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


Sec.  1910.6   [Amended]

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

0
3. Revise subpart D to read as follows:

Subpart D--Walking-Working Surfaces

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

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


Sec.  1910.21   Scope and definitions.

    (a) Scope. This subpart applies to all general industry workplaces. 
It covers all walking-working surfaces unless specifically excluded by 
an individual section of this subpart.
    (b) Definitions. The following definitions apply in this subpart:
    Alternating tread-type stair means a type of stairway consisting of 
a series of treads that usually are attached to a center support in an 
alternating manner such that an employee typically does not have both 
feet on the same level while using the stairway.
    Anchorage means a secure point of attachment for equipment such as 
lifelines, lanyards, deceleration devices, and rope descent systems.
    Authorized means an employee who the employer assigns to perform a 
specific type of duty, or allows in a specific location or area.
    Cage means an enclosure mounted on the side rails of a fixed ladder 
or fastened to a structure behind the fixed ladder that is designed to 
surround the climbing space of the ladder. A cage also is called a 
``cage guard'' or ``basket guard.''
    Carrier means the track of a ladder safety system that consists of 
a flexible cable or rigid rail attached to the fixed ladder or 
immediately adjacent to it.
    Combination ladder means a portable ladder that can be used as a 
stepladder, extension ladder, trestle ladder, or stairway ladder. The 
components of a combination ladder also may be used separately as a 
single ladder.
    Dangerous equipment means equipment, such as vats, tanks, 
electrical equipment, machinery, equipment or machinery with protruding 
parts, or other similar units, that, because of their function or form, 
may harm an employee who falls into or onto the equipment.
    Designated area means a distinct portion of a walking-working 
surface delineated by a warning line in which employees may perform 
work without additional fall protection.
    Dockboard means a portable or fixed device that spans a gap or 
compensates for a difference in elevation between a loading platform 
and a transport vehicle. Dockboards include, but are not limited to, 
bridge plates, dock plates, and dock levelers.
    Equivalent means alternative designs, equipment, materials, or 
methods, that the employer can demonstrate will provide an equal or 
greater degree of safety for employees compared to the designs, 
equipment, materials, or methods specified in this subpart.
    Extension ladder means a non-self-supporting portable ladder that 
is adjustable in length.
    Failure means a load refusal, breakage, or separation of component 
parts. A load refusal is the point at which the ultimate strength of a 
component or object is exceeded.
    Fall hazard means any condition on a walking-working surface that 
exposes an employee to a risk of harm from a fall on the same level or 
to a lower level.
    Fall protection means any equipment, device, or system that 
prevents an employee from falling from an elevation or mitigates the 
effect of such a fall.
    Fixed ladder means a ladder with rails or individual rungs that is 
permanently attached to a structure, building, or equipment. Fixed 
ladders include individual-rung ladders, but not ship stairs, step 
bolts, or manhole steps.
    Grab bar means an individual horizontal or vertical handhold 
installed to provide access above the height of the ladder.
    Guardrail system means a barrier erected along an unprotected or 
exposed side, edge, or other area of a walking-working surface to 
prevent employees from falling to a lower level.
    Handrail means a rail used to provide employees with a handhold for 
support.
    Hoist area means any elevated access opening to a walking-working 
surface through which equipment or materials are loaded or received.
    Hole means a gap or open space in a floor, roof, horizontal 
walking-working surface, or similar surface that is at least 2 inches 
(5 cm) in its least dimension.
    Individual-rung ladder means a ladder that has rungs individually 
attached to a building or structure. An individual-rung ladder does not 
include manhole steps.
    Ladder means a device with rungs, steps, or cleats used to gain 
access to a different elevation.
    Ladder safety system means a system designed to eliminate or reduce 
the possibility of falling from a ladder. A ladder safety system 
usually consists of a carrier, safety sleeve, lanyard, connectors, and 
body harness. Cages and wells are not ladder safety systems.

[[Page 82982]]

    Low-slope roof means a roof that has a slope less than or equal to 
a ratio of 4 in 12 (vertical to horizontal).
    Lower level means a surface or area to which an employee could 
fall. Such surfaces or areas include, but are not limited to, ground 
levels, floors, roofs, ramps, runways, excavations, pits, tanks, 
materials, water, equipment, and similar surfaces and structures, or 
portions thereof.
    Manhole steps means steps that are individually attached to, or set 
into, the wall of a manhole structure.
    Maximum intended load means the total load (weight and force) of 
all employees, equipment, vehicles, tools, materials, and other loads 
the employer reasonably anticipates to be applied to a walking-working 
surface at any one time.
    Mobile means manually propelled or moveable.
    Mobile ladder stand (ladder stand) means a mobile, fixed-height, 
self-supporting ladder that usually consists of wheels or casters on a 
rigid base and steps leading to a top step. A mobile ladder stand also 
may have handrails and is designed for use by one employee at a time.
    Mobile ladder stand platform means a mobile, fixed-height, self-
supporting unit having one or more standing platforms that are provided 
with means of access or egress.
    Open riser means the gap or space between treads of stairways that 
do not have upright or inclined members (risers).
    Opening means a gap or open space in a wall, partition, vertical 
walking-working surface, or similar surface that is at least 30 inches 
(76 cm) high and at least 18 inches (46 cm) wide, through which an 
employee can fall to a lower level.
    Personal fall arrest system means a system used to arrest an 
employee in a fall from a walking-working surface. It consists of a 
body harness, anchorage, and connector. The means of connection may 
include a lanyard, deceleration device, lifeline, or a suitable 
combination of these.
    Personal fall protection system means a system (including all 
components) an employer uses to provide protection from falling or to 
safely arrest an employee's fall if one occurs. Examples of personal 
fall protection systems include personal fall arrest systems, 
positioning systems, and travel restraint systems.
    Platform means a walking-working surface that is elevated above the 
surrounding area.
    Portable ladder means a ladder that can readily be moved or 
carried, and usually consists of side rails joined at intervals by 
steps, rungs, or cleats.
    Positioning system (work-positioning system) means a system of 
equipment and connectors that, when used with a body harness or body 
belt, allows an employee to be supported on an elevated vertical 
surface, such as a wall or window sill, and work with both hands free. 
Positioning systems also are called ``positioning system devices'' and 
``work-positioning equipment.''
    Qualified describes a person who, by possession of a recognized 
degree, certificate, or professional standing, or who by extensive 
knowledge, training, and experience has successfully demonstrated the 
ability to solve or resolve problems relating to the subject matter, 
the work, or the project.
    Ramp means an inclined walking-working surface used to access 
another level.
    Riser means the upright (vertical) or inclined member of a stair 
that is located at the back of a stair tread or platform and connects 
close to the front edge of the next higher tread, platform, or landing.
    Rope descent system means a suspension system that allows an 
employee to descend in a controlled manner and, as needed, stop at any 
point during the descent. A rope descent system usually consists of a 
roof anchorage, support rope, a descent device, carabiner(s) or 
shackle(s), and a chair (seatboard). A rope descent system also is 
called controlled descent equipment or apparatus. Rope descent systems 
do not include industrial rope access systems.
    Rung, step, or cleat means the cross-piece of a ladder on which an 
employee steps to climb up and down.
    Runway means an elevated walking-working surface, such as a 
catwalk, a foot walk along shafting, or an elevated walkway between 
buildings.
    Scaffold means any temporary elevated or suspended platform and its 
supporting structure, including anchorage points, used to support 
employees, equipment, materials, and other items. For purposes of this 
subpart, a scaffold does not include a crane-suspended or derrick-
suspended personnel platform or a rope descent system.
    Ship stair (ship ladder) means a stairway that is equipped with 
treads, stair rails, and open risers, and has a slope that is between 
50 and 70 degrees from the horizontal.
    Side-step ladder means a type of fixed ladder that requires an 
employee to step sideways from it in order to reach a walking-working 
surface, such as a landing.
    Spiral stairs means a series of treads attached to a vertical pole 
in a winding fashion, usually within a cylindrical space.
    Stair rail or stair rail system means a barrier erected along the 
exposed or open side of stairways to prevent employees from falling to 
a lower level.
    Stairway (stairs) means risers and treads that connect one level 
with another, and includes any landings and platforms in between those 
levels. Stairways include standard, spiral, alternating tread-type, and 
ship stairs.
    Standard stairs means a fixed or permanently installed stairway. 
Ship, spiral, and alternating tread-type stairs are not considered 
standard stairs.
    Step bolt (pole step) means a bolt or rung attached at intervals 
along a structural member used for foot placement and as a handhold 
when climbing or standing.
    Stepladder means a self-supporting, portable ladder that has a 
fixed height, flat steps, and a hinged back.
    Stepstool means a self-supporting, portable ladder that has flat 
steps and side rails. For purposes of the final rule, stepstool 
includes only those ladders that have a fixed height, do not have a 
pail shelf, and do not exceed 32 inches (81 cm) in overall height to 
the top cap, although side rails may extend above the top cap. A 
stepstool is designed so an employee can climb and stand on all of the 
steps and the top cap.
    Through ladder means a type of fixed ladder that allows the 
employee to step through the side rails at the top of the ladder to 
reach a walking-working surface, such as a landing.
    Tieback means an attachment between an anchorage (e.g., structural 
member) and a supporting device (e.g., parapet clamp or cornice hook).
    Toeboard means a low protective barrier that is designed to prevent 
materials, tools, and equipment from falling to a lower level, and 
protect employees from falling.
    Travel restraint system means a combination of an anchorage, 
anchorage connector, lanyard (or other means of connection), and body 
support that an employer uses to eliminate the possibility of an 
employee going over the edge of a walking-working surface.
    Tread means a horizontal member of a stair or stairway, but does 
not include landings or platforms.
    Unprotected sides and edges mean any side or edge of a walking-
working surface (except at entrances and other points of access) where 
there is no wall, guardrail system, or stair rail system to protect an 
employee from falling to a lower level.

[[Page 82983]]

    Walking-working surface means any horizontal or vertical surface on 
or through which an employee walks, works, or gains access to a work 
area or workplace location.
    Warning line means a barrier erected to warn employees that they 
are approaching an unprotected side or edge, and which designates an 
area in which work may take place without the use of other means of 
fall protection.
    Well means a permanent, complete enclosure around a fixed ladder.


Sec.  1910.22  General requirements.

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


Sec.  1910.23  Ladders.

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

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

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

[[Page 82984]]

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

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

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


[[Page 82985]]


[GRAPHIC] [TIFF OMITTED] TR18NO16.347


[[Page 82986]]


[GRAPHIC] [TIFF OMITTED] TR18NO16.348

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


Sec.  1910.24  Step bolts and manhole steps.

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

[[Page 82987]]

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

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


Sec.  1910.25  Stairways.

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

[[Page 82988]]

[GRAPHIC] [TIFF OMITTED] TR18NO16.350

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


[[Page 82989]]


[GRAPHIC] [TIFF OMITTED] TR18NO16.352

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

[[Page 82990]]

[GRAPHIC] [TIFF OMITTED] TR18NO16.354

Sec.  1910.26  Dockboards.

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


Sec.  1910.27  Scaffolds and rope descent systems.

    (a) Scaffolds. Scaffolds used in general industry must meet the 
requirements in 29 CFR part 1926, subpart L (Scaffolds).
    (b) Rope descent systems--(1) Anchorages. (i) Before any rope 
descent system is used, the building owner must inform the employer, in 
writing that the building owner has identified, tested, certified, and 
maintained each anchorage so it is capable of supporting at least 5,000 
pounds (268 kg), in any direction, for each employee attached. The 
information must be based on an annual inspection by a qualified person 
and certification of each anchorage by a qualified person, as 
necessary, and at least every 10 years.
    (ii) The employer must ensure that no employee uses any anchorage 
before the employer has obtained written information from the building 
owner that each anchorage meets the requirements of paragraph (b)(1)(i) 
of this section. The employer must keep the information for the 
duration of the job.
    (iii) The requirements in paragraphs (b)(1)(i) and (ii) of this 
section must be implemented no later than November 20, 2017.

[[Page 82991]]

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


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

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

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

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

[[Page 82992]]

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

[[Page 82993]]

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

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

[[Page 82994]]

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


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

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

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


[[Page 82995]]


[GRAPHIC] [TIFF OMITTED] TR18NO16.356

    (c) Safety net systems. The employer must ensure each safety net 
system meets the requirements in 29 CFR part 1926, subpart M.
    (d) Designated areas. (1) When the employer uses a designated area, 
the employer must ensure:
    (i) Employees remain within the designated area while work 
operations are underway; and
    (ii) The perimeter of the designated area is delineated with a 
warning line consisting of a rope, wire, tape, or chain that meets the 
requirements of paragraphs (d)(2) and (3) of this section.
    (2) The employer must ensure each warning line:
    (i) Has a minimum breaking strength of 200 pounds (0.89 kN);
    (ii) Is installed so its lowest point, including sag, is not less 
than 34 inches (86 cm) and not more than 39 inches (99 cm) above the 
walking-working surface;
    (iii) Is supported in such a manner that pulling on one section of 
the line will not result in slack being taken up in adjacent sections 
causing the line to fall below the limits specified in paragraph 
(d)(2)(ii) of this section;
    (iv) Is clearly visible from a distance of 25 feet (7.6 m) away, 
and anywhere within the designated area;
    (v) Is erected as close to the work area as the task permits; and
    (vi) Is erected not less than 6 feet (1.8 m) from the roof edge for 
work that is both temporary and infrequent, or not less than 15 feet 
(4.6 m) for other work.
    (3) When mobile mechanical equipment is used to perform work that 
is both temporary and infrequent in a designated area, the employer 
must ensure the warning line is erected not less than 6 feet (1.8 m) 
from the unprotected side or edge that is parallel to the direction in 
which the mechanical equipment is operated, and not less than 10 feet 
(3 m) from the unprotected side or edge that is perpendicular to the 
direction in which the mechanical equipment is operated.
    (e) Covers. The employer must ensure each cover for a hole in a 
walking-working surface:
    (1) Is capable of supporting without failure, at least twice the 
maximum intended load that may be imposed on the cover at any one time; 
and
    (2) Is secured to prevent accidental displacement.
    (f) Handrails and stair rail systems. The employer must ensure:
    (1) Height criteria. (i) Handrails are not less than 30 inches (76 
cm) and not more than 38 inches (97 cm), as measured from the leading 
edge of the stair tread to the top surface of the handrail (see Figure 
D-12 of this section).
    (ii) The height of stair rail systems meets the following:
    (A) The height of stair rail systems installed before January 17, 
2017 is not less than 30 inches (76 cm) from the leading edge of the 
stair tread to the top surface of the top rail; and
    (B) The height of stair rail systems installed on or after January 
17, 2017 is not less than 42 inches (107 cm) from the leading edge of 
the stair tread to the top surface of the top rail.
    (iii) The top rail of a stair rail system may serve as a handrail 
only when:
    (A) The height of the stair rail system is not less than 36 inches 
(91 cm) and not more than 38 inches (97 cm) as measured at the leading 
edge of the stair tread to the top surface of the top rail (see Figure 
D-13 of this section); and
    (B) The top rail of the stair rail system meets the other handrail 
requirements in paragraph (f) of this section.
    (2) Finger clearance. The minimum clearance between handrails and 
any other object is 2.25 inches (5.7 cm).
    (3) Surfaces. Handrails and stair rail systems are smooth-surfaced 
to protect employees from injury, such as punctures or lacerations, and 
to prevent catching or snagging of clothing.
    (4) Openings in stair rails. No opening in a stair rail system 
exceeds 19 inches (48 cm) at its least dimension.
    (5) Handhold. Handrails have the shape and dimension necessary so 
that employees can grasp the handrail firmly.
    (6) Projection hazards. The ends of handrails and stair rail 
systems do not present any projection hazards.
    (7) Strength criteria. Handrails and the top rails of stair rail 
systems are capable of withstanding, without failure, a force of at 
least 200 pounds (890 N) applied in any downward or outward direction 
within 2 inches (5 cm) of any point along the top edge of the rail.

BILLING CODE 4510-29-P

[[Page 82996]]

[GRAPHIC] [TIFF OMITTED] TR18NO16.357


 
 
 
             Figure D-13 - Combination Handrail and Stair Rail
 

BILLING CODE 4510-29-C

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

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


[[Page 82997]]


[GRAPHIC] [TIFF OMITTED] TR18NO16.358

[GRAPHIC] [TIFF OMITTED] TR18NO16.359

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

[[Page 82998]]

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


Sec.  1910.30  Training requirements.

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

Subpart F--[Amended]

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

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


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


Sec.  1910.66  Powered platforms for building maintenance.

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

[[Page 82999]]

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

Appendix C to Sec.  1910.66 [Reserved]

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

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

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


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

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

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


Sec.  1910.68  Manlifts.

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

Subpart I--[Amended]

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

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

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


Sec.  1910.132  General requirements.

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


Sec.  1910.139  [Added and Reserved]

0
10. Add reserved Sec.  1910.139.

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


Sec.  1910.140  Personal fall protection systems.

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

[[Page 83000]]

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

[[Page 83001]]

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

[[Page 83002]]

[GRAPHIC] [TIFF OMITTED] TR18NO16.360

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

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

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

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

[[Page 83003]]

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

[[Page 83004]]

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

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

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

[[Page 83005]]

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

Subpart N--[Amended]

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

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

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


Sec.  1910.178   Powered industrial trucks.

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

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


Sec.  1910.179  Overhead and gantry cranes.

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

Subpart R--[Amended]

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

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


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


Sec.  1910.261   Pulp, paper, and paperboard mills.

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

[[Page 83006]]

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

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


Sec.  1910.262  Textiles.

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

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


Sec.  1910.265  Sawmills.

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

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


Sec.  1910.268  Telecommunications.

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

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


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

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

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

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