General Working Conditions in Shipyard Employment

DEPARTMENT OF LABOR

Occupational Safety and Health Administration

29 CFR Parts 1910 and 1915

[Docket No. OSHA-S049-2006-0675 (formerly Docket No. S-049)]

RIN 1218-AB50

General Working Conditions in Shipyard Employment

AGENCY:

Occupational Safety and Health Administration (OSHA), Labor.

ACTION:

Final rule.

SUMMARY:

The Occupational Safety and Health Administration (OSHA) is revising its standards on general working conditions in shipyard employment. These revisions update existing requirements to reflect advances in industry practices and technology, consolidate some general safety and health requirements into a single subpart, and provide protection from hazards not addressed by existing standards, including the control of hazardous energy.

DATES:

Effective date:

This final rule becomes effective and enforceable on August 1, 2011, except for the provisions in § 1915.89, which become effective and enforceable on October 31, 2011.

Information Collections:

The collection of information requirements are contained in paragraphs § 1915.83, § 1915.87, § 1915.88, and § 1915.89 (See section

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

). Notwithstanding the general date of applicability that applies to all other requirements contained in the final rule, affected parties do not have to comply with the collection of information requirements until the Department of Labor publishes a separate notice in the

Federal Register

announcing the Office of Management and Budget has approved them under the Paperwork Reduction Act of 1995.

Incorporation by reference:

The incorporation by reference of certain publications listed in the rule is approved by the Director of the Federal Register as of August 1, 2011.

ADDRESSES:

In accordance with 28 U.S.C. 2112(a)(2), OSHA designates Joseph M. Woodward, 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:

Camilla F. McArthur, Office of Communications, OSHA, U.S. Department of Labor, Room N-3647, 200 Constitution Avenue, NW., Washington, DC 20210; telephone: (202) 693-1999.

General information and technical inquiries:

Joseph V. Daddura, Director, Office of Maritime, Directorate of Standards and Guidance, OSHA, U.S. Department of Labor, Room N-3621, 200 Constitution Avenue, NW., Washington, DC 20210; telephone: (202) 693-2222.

Additional copies of this Federal Register notice:

OSHA, Office of Publications, U.S. Department of Labor, Room N-3101, 200 Constitution Avenue, NW., Washington, DC 20210; telephone (202) 693-1888. Electronic copies of this

Federal Register

notice are also available at

http://www.regulations.gov,

the Federal eRulemaking Portal. This notice, as well as news releases and other relevant documents, also is available at OSHA's Web site 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 on General Working Conditions in Shipyard Employment:

I. Background

A. References and Exhibits

B. Introduction

C. Events Leading to the Final Rule

D. Hazards

II. Pertinent Legal Authority

III. Summary and Explanation of the Final Rule

IV. Final Economic Analysis and Regulatory Flexibility Analysis

A. Introduction

B. Industrial Profile

C. Technological Feasibility

D. Benefits

E. Cost of Compliance

F. Economic Impact, Feasibility, and Regulatory Flexibility Screening Analysis

V. Environmental Impact

VI. Federalism

VII. Unfunded Mandates Reform Act

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

IX. State Plan Requirements

X. Effective Date

XI. List of Subjects

XII. Authority and Signature

XIII. Amendments to Standards

I. Background

A.

References and Exhibits.

In this

Federal Register

notice, OSHA references documents in Docket No. OSHA-S049-2006-0675, which was formerly OSHA Docket No. S-049. In addition, OSHA references documents in the following dockets, which the Agency incorporates by reference into this rulemaking:

• The proceedings of the Shipyard Employment Standards Advisory Committee (SESAC)—Docket Nos. SESAC-1988 through SESAC-1993;

• The proceedings of the Maritime Advisory Committee for Occupational Safety and Health—Docket Nos. MACOSH-1995 through MACOSH-2008;

• The General Industry Lockout/Tagout rulemaking record—OSHA Docket Nos. S-012, S-012A, and S-012B;

• The Shipyard Employment Standards rulemaking record—OSHA Docket No. S-024; and

• The Field Sanitation rulemaking record—OSHA Docket No. H-308.

References to documents in Docket No. OSHA-S-049-2006-0675.

References to documents in Docket No. OSHA-S049-2006-0675 are given as “Ex.” followed by the last sequence of numbers in the Document ID Number and, in the case of the hearing transcripts, the page number. Thus, Ex. 88 is Document Number OSHA-S049-2006-0675-0088, and will appear in this document as (Ex. 88).

The exhibits in this docket (Docket No. OSHA-S049-2006-0675), including public comments, supporting materials, hearing transcripts, and other documents, can be found at

http://www.regulations.gov,

the Federal eRulemaking Portal, by searching the docket number. All exhibits are listed, but some exhibits (for example, copyrighted material) are not available to read or download from that Web page. All exhibits are available for inspection and, if permissible, copying at the OSHA Docket Office, Docket No. OSHA-S049-2006-0675, Room N-2625, U.S. Department of Labor, 200 Constitution Avenue, NW., Washington, DC 20210; telephone (202) 693-2350.

References to other dockets incorporated by reference.

In this notice, references to documents in other dockets incorporated by reference are given as the docket number followed by the exhibit number for the document in that docket. For example, a reference to “OSHA Docket H-308 Ex. 1” means Exhibit 1 in the Field Sanitation rulemaking docket. Referenced documents in those dockets are available for inspection and, if permissible, copying at the OSHA Docket Office.

B. Introduction

OSHA is revising and updating standards in subpart F of 29 CFR part 1915 that address hazards in general working conditions in shipyard employment. These revisions update existing requirements to reflect advances in industry practices and technology, consolidate certain safety and health requirements into a single subpart, and provide protection from hazards not previously addressed, including the control of hazardous energy.

This final rule covers diverse working conditions in shipyard employment, including sanitation, medical services and first aid, motor vehicle and pedestrian safety, lighting, housekeeping, and hazardous energy.

OSHA has determined that the rulemaking record supports the need for the revisions and additions to subpart F to protect the safety and health of workers performing shipyard employment operations.

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 other sections of the preamble, OSHA has determined that the hazards addressed by this rule represent a significant risk, and estimates that the final standard will prevent 1.2 fatalities and 348.4 injuries annually. In accordance with the requirements of Section 6(b) of the OSH Act, OSHA has determined that this standard is both technologically and economically feasible.

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 IV of the preamble, OSHA examined the effects of this standard on small firms and certifies that the standard will not have a significant impact on a substantial number of small firms.

In accordance with Executive Orders 13563 and 12866, OSHA has estimated the benefits, costs, and net benefits of this standard. As shown in the table below, the annual benefits of this standard are significantly in excess of the standard's annualized compliance costs. It should be noted that these monetized estimates of net benefits are for informational purposes only. In accordance with the OSH Act, OSHA does not use the magnitude of net benefits as the decision-making criterion in determining what standards to promulgate.

ER02my11.000

C. Events Leading to the Final Rule

OSHA adopted the existing standards in subpart F in 1972 (37 FR 22458, Oct. 19, 1972) pursuant to section 6(a) of the Occupational Safety and Health Act of 1970 (OSH Act) (29 U.S.C. 651, 655). Section 6(a) permitted OSHA, during the first two years following passage of the OSH Act, to adopt as occupational safety and health standards any established Federal standards and national consensus standards. OSHA adopted the existing provisions in subpart F from Federal regulations promulgated under section 41 of the Longshore and Harbor Workers' Compensation Act (LHWCA) (33 U.S.C. 941), as well as national consensus standards (for example, ANSI sanitation standards).

In 1982, the Shipbuilders Council of America and the American Waterways Shipyard Conference requested that OSHA: (1) Revise and update the existing shipyard standards, including subpart F; and (2) consolidate into a single set of shipyard standards those general industry standards that apply to shipyards, particularly landside operations.

In response to these recommendations, OSHA established the Shipyard Employment Standards Advisory Committee (SESAC) in November 1988. The purpose of SESAC, which included representatives from industry, labor, and professionals in the maritime community, was to provide guidance and technical expertise to OSHA about revising the shipyard employment standards. SESAC met from 1988 until 1993 to develop recommendations and provide technical expertise in developing draft regulatory language for revising the shipyard safety standards. On April 29, 1993, SESAC unanimously approved and submitted to OSHA final draft recommendations for revising subpart F (Docket SESAC 1993-2, Ex. 102X, p. 257; detailed discussion on SESAC comments and specific recommendations are presented in Section III, the Summary and Explanation section below).

In 1995, OSHA established the Maritime Advisory Committee for

Occupational Safety and Health (MACOSH) under section 7 of the OSH Act (29 U.S.C. 656) to advise the Agency on issues relating to occupational safety and health standards in the shipyard and marine cargo-handling (longshoring) industries. On September 8, 1995, MACOSH discussed and approved the recommendations and draft regulatory language that SESAC developed and made additional recommendations, including that OSHA do a separate rulemaking on the control of hazardous energy (Docket MACOSH 1995-1, Exs. 2; 102X, pp. 25, 26).

OSHA published the proposed rule on December 20, 2007 (72 FR 72452). The Agency requested public comment by March 19, 2008, on the proposed rule, the preliminary economic analysis, and the issues the Agency raised in the proposal. The Agency received comments on the proposed rule from employees, employers, trade associations, consultants, and government agencies (Exs. 88 through 132.1). In addition, a number of stakeholders requested an informal public hearing and an extension of the 60-day comment period (Exs. 93 through 99). OSHA granted the requests to hold a hearing in two locations (73 FR 54340, Sept. 19, 2008; 73 FR 36823, June 30, 2008), and denied the request to extend the comment period.

After publishing notice of an informal public hearing (73 FR 36823, June 30, 2008; 73 FR 54340, Sept. 19, 2008), OSHA convened the hearing on September 9, 2008, in Washington, DC, with Administrative Law Judge Stephen Purcell presiding (Ex. 168). The hearing continued October 21 and 22, 2008, in Seattle, WA, where Administrative Law Judge Jennifer Gee presided (Exs. 198; 199). Thirty-five stakeholders presented oral testimony at the public hearing.

Pursuant to OSHA's recommendation, on September 9, 2008, Judge Purcell ordered that after the close of the hearing on October 22, 2008, the hearing record would remain open for an additional 60 days, until December 22, 2008, for the submission of new factual information and data relevant to the hearings (Ex. 169). Judge Purcell also ordered that the record would remain open until February 20, 2009, for the submission of final written comments, arguments, summations, and briefs (Exs. 197 and 200 through 206.1). OSHA's recommendation for a 120-day post-hearing comment period was in response to comments from some stakeholders who said the 60-day pre-hearing comment period had not provided stakeholders with sufficient time to submit comments (for example, Ex. 119.1).

On August 25, 2009, Judge Purcell issued an order closing the record of the public hearing on the Proposed Rule to Update OSHA's Standards on General Working Conditions in Shipyard Employment and certifying the record to the Assistant Secretary of Labor for Occupational Safety and Health.

As required by the OSH Act, this final rule is based on careful analysis and consideration of the rulemaking record as a whole, including materials discussed or relied upon in the proposed rule, written comments and exhibits received, and the record of the public hearing.

D. Hazards

Shipyard employment is a risky occupation that exposes workers to a number of different hazards. Shipyard-employment workers are at risk due to the nature of their work, which includes a variety of industrial operations such as steel fabrication, welding, abrasive blasting, electrical work, pipefitting, rigging, stripping, and coating applications. Shipyard-employment workers also operate and service complex machinery and equipment such as powered industrial trucks, cranes, and vessel systems. Several stakeholders said that vessel systems, in particular, present “unique complexity” (Ex. 132.2).

The hazards associated with these operations and equipment are heightened because they are often performed outdoors in all kinds of weather. Gerry Merrigan, of Prowler LLC and Ocean Prowler LLC, commented on the risks of working outdoors and on vessels: “The predictability of shoreside operations is not often found at sea (for example, ice accumulation on vessels),” and that “Almost everyday so far this fishing season in the Bering Sea had freezing spray warning” (Ex. 100). A number of other stakeholders also said that working in rain, ice, and snow is common in shipyard employment (Exs. 101.1; 105.1; 121.1; 124; 128).

Yaniv Zagagi, of Atlantic Marine Florida, also addressed the range of environmental conditions that shipyard workers face:

With outdoor work a common practice on vessels under construction and repair, maintaining dry work surfaces at all times in all area[s], since work areas cannot be delineated, is not possible. In this region, rainfall averages 6 inches per month, with an inch or more common for a single rain event (Ex. 115.1).

The nature of work spaces in shipyard employment also poses risks for employees. Shipyard employment activities are performed aboard vessels, in confined or enclosed spaces below deck, on scaffolds, and on busy, crowded docks. James Thornton, of Northrop Grumman—Newport News, commented: “Shipbuilding and repair, by nature, requires employees to access numerous small, awkward spaces, such as catapult wing voids on aircraft carriers and vertical launch silos on submarines; therefore, working space is inherently limited” (Ex. 116.2).

The safe coordination of shipyard employment activities also is complicated by the fact that most shipyards are multi-employer worksites where shipyard workers, ship's crew, contractors, and subcontractors work side-by-side and often on the same vessel system at the same time.

The combination of these hazards puts workers at risk of injury, regardless of whether they are working on vessels or at landside operations.

The proposed rule examined in detail the fatalities and injuries associated with the hazards this rule addresses (72 FR 72453-55, Dec. 20, 2007). Since OSHA did not receive any objections on its fatality and injury analysis, the Agency does not see a need to repeat the analysis here. In addition, section IV of this preamble discusses the fatalities and injuries the final rule is estimated to prevent.

II. 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, Mar. 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. See

Pub. Citizen Health Research Group

v.

U.S. Dep't of Labor,

557 F.3d 165, 170-71 (3rd Cir. 2009);

Am. Iron and Steel Inst.

v.

OSHA,

939 F.2d 975, 980 (D.C. Cir. 1991) (“

AISI”

);

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. See

Am. Textile Mfrs. Inst.

v.

Donovan,

452 U.S. 490, 530 n.55 (1981) (“

ATMI”

);

AISI,

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,

37 F.3d 665, 668 (D.C. Cir 1994) (“

LOTO III”

). See also

ATMI,

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 16614-16615, Mar. 30, 1993;

LOTO III,

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).

III. Summary and Explanation of the Final Rule

This section of the preamble discusses the requirements of the final standard and explains the purpose of the requirements and the reasons supporting them. This section also discusses and resolves issues raised during the comment period, significant comments received as part of the rulemaking record, and any substantive changes from the proposed rule.

As mentioned, OSHA adopted many of the provisions in subpart F in 1972 from existing Federal occupational safety and health standards and national consensus standards (for example, sanitation, medical services and first aid, housekeeping). Since then, those national consensus standards have been updated and revised. OSHA carefully reviewed the updated standards and, when they encompassed new technology and requirements to provide greater workplace safety and health, has incorporated those changes in the final rule.

SESAC recommended many of the provisions in the final rule as representing industry best practices. To the extent that such practices and technology have changed since SESAC made its recommendations, OSHA has updated those recommendations accordingly.

In the final rule, OSHA has consolidated a number of provisions to more clearly indicate that they apply to shipyard employment. For example, both existing general industry (part 1910) and shipyard employment (part 1915) standards address housekeeping, sanitation, and medical services and first aid. General industry standards apply to shipyard employment when part 1915 standards do not address a particular hazard or working condition. To make the applicable requirements easier to understand and follow, the final rule consolidated the sets of standards into one section. To illustrate, § 1910.141 and § 1915.97 contain requirements on sanitation that are applicable to shipyard employment. The final rule has combined all of the sanitation requirements in both standards that are applicable to shipyard employment in § 1915.88.

The consolidation of some standards, and the addition of new sections, has resulted in a renumbering of the sections in subpart F. Table 1 lists the section numbers of the final rule and the existing section(s), if any, from which they were derived.

Table 1—Proposed Provisions and Corresponding Existing Provisions

Title of provision

Final rule

Existing rule applicable to shipyard employment

Scope, application, and definitions

§ 1915.80

Each section of subpart F has a scope and application provision. No existing section for definitions.

Housekeeping

§ 1915.81

§ 1915.91 and § 1910.141.

Lighting

§ 1915.82

§ 1915.92.

Utilities

§ 1915.83

§ 1915.93.

Working alone

§ 1915.84

§ 1915.94.

Vessel radar and communication systems

§ 1915.85

§ 1915.95.

Lifeboats

§ 1915.86

§ 1915.96.

Medical services and first aid

§ 1915.87

§ 1915.98 and § 1910.151.

Sanitation

§ 1915.88

§ 1915.97 and § 1910.141.

Control of hazardous energy (lockout/tagout)

§ 1915.89

No existing rule.

Safety color code for marking physical hazards

§ 1915.90

§ 1910.144.

Accident prevention signs and tags

§ 1915.91

§ 1910.145.

Retention of DOT markings, placards and labels

§ 1915.92

§ 1915.100.

Motor vehicle safety equipment, maintenance, and operation

§ 1915.93

No existing rule.

Servicing multi-piece and single-piece rim wheels

§ 1915.94

No existing rule.

To the extent possible, OSHA has expressed the final rule in performance language; that is, the requirements are “expressed in terms of objective criteria and of the performance desired.” 29 U.S.C. 655(b)(5). Some stakeholders, particularly larger establishments, supported this approach and urged OSHA to adopt a flexible approach in the final rule (Exs. 116.1; 120.1). Other stakeholders, particularly smaller businesses, urged OSHA to provide more specific language in the final rule (Exs. 104.1; 107; 121.1; 125; 198, p. 56). For example, Philip Dovinh, of Sound Testing, Inc., said that vague or “open-ended” language “leaves ample room for

erroneous misinterpretations” (Ex. 121.1).

OSHA believes that the performance-based approach in the final rule provides employers with maximum flexibility in determining the most effective strategies for controlling hazards and protecting their workers. At the same time, OSHA believes that the objective criteria the final rule incorporates will assist employers, particularly small businesses, with complying with the final rule. In addition, as stakeholders requested, OSHA has defined a number of additional terms used in the final rule (Exs. 121.1; 129.1). OSHA believes this approach also will help employers understand and comply with the final rule while providing flexibility for the range of employers the final rule covers.

Section 1915.80—Scope, Application, and Definitions

Paragraph (a)—Scope and Application

Paragraph (a) specifies that the provisions in subpart F apply to general working conditions:

• In shipyard employment;

• At landside operations and on vessels and vessel sections; and

• Regardless of geographic location.

Final paragraph (a) consolidates the individual scope provisions contained in each section of existing subpart F into one section. Paragraph (a) also applies subpart F to all operations constituting shipyard employment. Some of the existing scope provisions, which were part of the LHWCA standards that OSHA adopted in 1972, applied only to certain sectors of shipyard employment. However, OSHA's intention always has been that part 1915 standards apply to all of shipyard employment, which § 1915.4(i) defines as “ship repairing, shipbuilding, shipbreaking and related employments.” As OSHA stated in the proposed rule, this consolidation eliminates duplication. Finally, the consolidation also makes the scope and application section consistent with other subparts of 29 CFR part 1915 that OSHA has revised (for example, subpart B—Confined and Enclosed Spaces and Other Dangerous Atmospheres in Shipyard Employment (59 FR 37816, Jul. 25, 1994); subpart I—Personal Protective Equipment in Shipyard Employment (61 FR 26322, May 24, 1966); and subpart P—Fire Protection in Shipyard Employment (69 FR 55702, Oct. 15, 2004). OSHA did not receive any comments on the proposed consolidation.

Paragraph (a) of the final rule adopts the proposed language that subpart F applies to shipyard-employment work on vessels and vessel sections and at landside operations. With regard to vessels, this means that the requirements of subpart F apply to the extent that OSHA has authority over the vessel. OSHA's instruction titled, “OSHA Authority over Vessels and Facilities on or Adjacent to U.S. Navigable Waters and the Outer Continental Shelf (OCS),” provides current Agency policy, information, and guidance on OSHA's authority to regulate working conditions on certain vessels (inspected vessels, commercial uninspected fishing vessels, and other uninspected vessels) (CPL-02-01-047, Feb. 22, 2010). The instruction is available to read and download on OSHA's Web site at

http://www.osha.gov.

Paragraph (a) also adopts language from the proposed rule clarifying OSHA's longstanding position that subpart F applies to shipyard employment “regardless of geographic location” of the shipyard activity. OSHA included the phrase “regardless of geographic location” in the scope so that protection is afforded to employees whenever they engage in shipyard employment: On vessels, on vessel sections, at landside facilities, or at any other location where they perform shipyard employment. This has been the Agency's longstanding policy on shipyard employment, and is included in the scope of subpart B—Confined and Enclosed Spaces and Other Dangerous Atmospheres, subpart I—Personal Protective Equipment, and subpart P—Fire Protection.

Shipyard employment also occurs on vessels and vessel sections within the navigable waters of the United States, and includes work on a vessel or part of a vessel that is being constructed, or repaired, whether it is in the shipyard or dockside, at anchor, or underway for testing. The requirements in this subpart will apply to all vessels within OSHA's jurisdictional boundaries.

Several commenters requested that OSHA define “navigable waters” in the final rule (Exs. 101.1; 124; 126; 128; 132.2). Since the final rule does not use the term “navigable waters,” OSHA does not believe there is a need to include a definition in the rule. In any event, the U.S. Coast Guard, not OSHA, is the Federal agency responsible for making determinations about whether a body of water is considered “U.S. navigable waters.” The Coast Guard definition of navigable waters and other associated terms are contained at 33 CFR part 2, which is available at

http://www.gpoaccess.gov/cfr/index.html.

One stakeholder urged OSHA to exempt from the rule vessels under 200 gross weight tons or vessels that do not process seafood (Ex. 197.1). Karen Conrad of the North Pacific Fishing Vessel Owners' Association commented:

[T]hese regulations would apply to all uninspected vessels and that would include “tens of thousands” of vessels of all kinds. OSHA needs to consider that these vessels do ongoing maintenance work, not just at the dock, but while they move to other locations. We suggest that OSHA communicate with the Coast Guard and industry to identify which vessels need this regulation and best to scale down this regulation to cover the sector of vessels that should be covered (Ex. 197.1).

OSHA does not agree with the stakeholder's position and has not exempted small vessels from the final rule. OSHA regulates hazardous working conditions where they are found. To the extent that the hazardous working conditions addressed in subpart F are present, OSHA believes employees are at risk of injury and death and need protection. Of course, OSHA has authority only to the extent that the hazard, employer, and vessel are within the Agency's geographical authority.

Paragraph (b)—Definitions

Paragraph (b) of the final rule sets forth definitions that are applicable to subpart F. As mentioned, OSHA believes that defining key terms makes the final rule easier to understand and, therefore, will increase compliance.

OSHA has moved the definitions to the beginning of subpart F from the final section of the proposed rule (§ 1915.95). Two stakeholders urged OSHA to move the definitions forward (Exs. 119.1; 121.1). Philip Dovinh of Sound Testing, Inc. commented:

Definitions are an extremely important part of any successful regulation. OSHA may have misled the reader that their set of definitions is just an incomplete afterthought as represented in the current Proposed Rule. Section 1915.95 Definitions, is awkwardly buried in the last section of Subpart F-General Working Conditions. Why not be consistent and place it immediately following § 1915.80 Scope and application—as in the rest of the other OSHA regulations? By having the definitions located immediately at the front of the Proposed Rule, they will grab the attention of the reader and become much more beneficial (Ex. 121.1).

OSHA agrees with the commenter that prominently placing the definitions for this subpart immediately after the Scope and Application section will assist the employer and employees in understanding the provisions in subpart F.

Many of the proposed definitions have been carried forward unchanged, or with editorial changes, to better clarify the term. Some of the clarification, additions, and modifications have been made in response to stakeholder comments, which provided helpful and useful language to improve the clarity of terms used in the final rule. OSHA also has added new definitions to the final rule, many of which help to explain and clarify OSHA's revised approach to the control of hazardous energy. Definitions that have been added to the final rule, or substantially clarified or modified from the proposal, are described below.

Additional safety measure.

A definition for “additional safety measure” was added to the final rule to more fully explain and clarify the tags-plus system described in § 1915.89, Control of hazardous energy. “Additional safety measure” is defined as a component of the tags-plus system that provides an impediment (in addition to the energy-isolating device) to the release of hazardous energy or the energization or startup of the machinery, equipment, or system being serviced. Examples include, but are not limited, to removing an isolating circuit element; blocking a control switch; blocking, blanking, or bleeding lines; removing a valve handle or wiring it in place; or opening an extra disconnecting device.

Authorized employee.

Paragraph (b)(3) of § 1915.80 specifies that an “authorized employee” is an employee who performs one or more of the following lockout/tagout responsibilities:

• Executes the lockout/tagout procedures;

• Installs a lock or tagout system on any machinery, equipment, or system that is to be serviced; or

• Services any machinery, equipment, or system that is under a lockout/tagout application.

The final definition specifies clearly and more directly than the proposed definition the role of authorized employees in lockout/tagout situations. In addition, the final definition retains the sentence clarifying that affected employees become authorized employees if their duties include servicing machinery, equipment, or systems under a lockout/tagout application.

Contract employer.

OSHA has added a new definition for “contract employer.” OSHA determined that this definition was needed to clarify the requirements in § 1915.89(l), Multi-employer worksites. The definition is currently included in subpart P, Fire Protection for Shipyard Employment, and has been carried over into subpart F in this final rule. A “contract employer” is an employer who performs shipyard employment-related services or work under contract to the host employer or to another employer who is under contract to the host employer when the work or services takes place at the host employer's worksite. Services a contract employer may provide include painting, joinery, carpentry, or scaffolding. The definition excludes any employer who provides services that are not directly related to shipyard employment, such as mail delivery, office-supply, or food vending services.

Dummy load.

In § 1915.85, Vessel radar and communication systems, paragraph (b)(2) was revised at the suggestion of Northrop Grumman Shipbuilding—Newport News (Ex. 116.2) to require protection for employees working on a system with a dummy load. OSHA defines “dummy load” as a device used in place of an antenna to aid in the testing of a radio transmitter that converts transmitted energy into heat to minimize energy radiating outward or reflecting back to its source during testing.

Hazardous energy.

“Hazardous energy” was defined to ensure that employers understand that § 1915.89, Control of hazardous energy, applies to any source or type of energy, including mechanical (for example, power transmission apparatus, counterbalances, springs, pressure, and gravity), pneumatic, hydraulic, electrical, chemical, and thermal (for example, high or low temperature), that could cause injury to employees. These energy sources may be active, residual, or stored. Because this definition encompasses the various types of energy, it was not necessary to define separately the phrase “energy source,” so OSHA deleted the phrase as its own defined term.

Hazardous substances.

In the proposal, OSHA defined “hazardous and toxic substances” broadly as used in § 1915.87, Medical services and first aid. Several commenters stated that this definition was not appropriate, was economically infeasible, or was too broad (Exs. 104.1; 107.1; 105.2; 106.1; 112.1). OSHA has replaced “hazardous and toxic substances” with “hazardous substances” in the final standard, which are defined as substances that may cause injury, illness, or disease, or otherwise harm an employee by reason of being explosive, flammable, poisonous, corrosive, oxidizing, irritating, or otherwise harmful. OSHA has concluded that this definition adequately sets forth the hazards that have the potential to occur in shipyard employment. This definition will assist employers to address the hazards in their particular workplaces by providing, for example, quick-drench facilities and other first aid or emergency medical equipment.

Host employer.

OSHA added a new definition for “host employer” in the final rule. OSHA determined that this definition was needed to clarify the requirements in § 1915.89(l), Procedures for multi-employer worksites. The definition is currently included in subpart P, Fire Protection for Shipyard Employment, and has been carried over into subpart F in this final rule. “Host employer” is an employer who is in charge of coordinating the shipyard-employment work of other employers, or who hires other employers to perform shipyard-employment work or to provide shipyard employment-related services at a multi-employer worksite.

Isolated location.

For purposes of § 1915.84, Working alone, OSHA has added a new definition for “isolated location,” as requested by many commenters (Exs. 101.1; 104.1; 105.1; 114.1; 115.1; 118.1; 124; 125; 126; 128; 130.1; 198, p. 73). “Isolated location” is defined as an area where employees are working alone or with little assistance from others due to the type, time, or location of their work. Isolated locations include remote locations or other work areas where employees are not in close proximity to each other. Examples of isolated locations include an employee working alone on a job task at the far end of a vessel, vessel section, or shipyard; an employee working alone in a hold, sonar space, or tank; or an employee working in a confined space. OSHA intends to include situations where co-workers may be near an employee working alone but are not participating in the work of the lone worker. For example, an isolated location exists when two employees are working on either side of a metal partition, or when one employee performs hot work and a firewatch is on the other side of the bulkhead.

Lock.

OSHA has shortened the phrase “lockout device” from proposed § 1915.89, Control of hazardous energy, by removing the word “device,” since “device” is not needed to explain what a lock is. A lock is self explanatory, although OSHA retained the definition of the term in this final rule. Throughout the standard, when the proposal required the employer to affix a “lockout device,” OSHA has simplified the term to “lock.” The term is defined as a device that utilizes a positive

means, either a key or combination lock, to hold an energy-isolating device in a “safe” position that prevents the release of energy and the startup or energization of the machinery, equipment, or system to be serviced.

Lockout/tags-plus coordinator.

OSHA has added a new requirement in § 1915.89, Control of hazardous energy, to designate a lockout/tagout coordinator in certain situations to verify each lockout/tagout system. Thus, OSHA has added the term “lockout/tags-plus coordinator” to the definition section. The lockout/tags-plus coordinator is an employee designated by the employer to coordinate all lockout and tags-plus applications on vessels or vessel sections and at landside facilities when employees are performing multiple servicing operations on the same equipment at the same time, or on vessels and vessel sections when employees are servicing multiple machines, equipment, or systems at the same time. As explained in the summary and explanation of § 1915.89, the employer may have more than one lockout/tags-plus coordinator, depending on the size of the shipyard and the scope of work being performed at any given time. The coordinator will also be responsible for maintaining a lockout/tagout log for each worksite.

Lockout/tags-plus materials and hardware.

A new definition for “lockout/tags-plus materials and hardware” was added to clarify the requirements for controlling hazardous energy in § 1915.89. This hardware includes locks, chains, wedges, blanks, key blocks, adapter pins, self-locking fasteners, or other hardware used to isolate, block, or secure machinery, equipment, or systems to prevent the release of energy or the startup or energization of the machinery, equipment, or system.

Navy ship's force.

A new term for “Navy ship's force” was added to clarify situations when naval vessels are in shipyards and the ship's force will maintain control of the lockout/tagout applications under § 1915.89. “Navy ship's force” is the crew of a vessel, owned and operated by the U.S. Navy, other than a time- or voyage-chartered vessel, that is under the control of a Commanding Officer or Master.

Normal production operations.

The term “normal production operations” was modified from proposed § 1915.89 to include several examples of machinery or equipment that OSHA intends this phrase to encompass. These machines or types of equipment may include, but are not limited to, punch presses, bending presses, shears, lathes, keel press rollers, or automated burning machines.

Readily accessible/available.

In § 1915.82, Lighting, § 1915.83, Utilities, § 1915.87, Medical services and first aid, and § 1915.88, Sanitation, OSHA uses the term “readily accessible.” Several commenters requested that OSHA clarify the term “readily accessible” for this final rule (Exs. 105.1; 121.1). OSHA agrees, and has defined “readily accessible/available” to mean capable of being reached quickly enough by an employee to ensure, for example, that medical services and first aid can be rendered effectively, or that employees can reach sanitation facilities in time to meet their health and personal needs.

Servicing.

The proposed term “servicing and/or maintenance” in § 1915.89, Control of hazardous energy, has been shortened in the final rule to “servicing” because “maintenance” has been incorporated into the definition as one of the workplace activities that the term “servicing” encompasses. The definition now clarifies that servicing covers workplace activities that involve constructing, installing, adjusting, inspecting, modifying, testing, and repairing machinery, equipment or systems. Servicing also includes maintaining machines, equipment, or systems when performing these services would expose the employee to harm from the start-up or energization of the system being serviced or the release of hazardous energy. Servicing would not include the inspection of a space since that is not an inspection of a machine, piece of equipment or a system.

Shield.

As used in § 1915.83, Utilities, “shield” means to install a covering, protective layer, or other effective measure on or around a steam hose or temporary steam-piping system, including metal fittings and couplings, to protect employees from coming into contact with hot surfaces or elements. This action would protect the employee, as well as the piping or hose. OSHA received comments requesting that this definition be added to the final rule (Exs. 106.1; 117.1).

Short bight.

In § 1915.83 of the final rule, Utilities, OSHA added the new term “short bight.” NIOSH commented: “[I]t would be useful to define the term `short bights'” (Ex. 129.1). OSHA agrees with this comment. “Short bight” is the loop that is created in a line or rope that is used to tie back or fasten hoses, wiring, or fittings. A short bight is not the rope, or the act of fastening the hose, but the loop in the rope that is being used.

Tag.

OSHA has shortened the phrase “tagout device” from proposed § 1915.89, Control of hazardous energy, by removing the word “device,” since “device” is not needed to explain what a tag is. The term “tag” is self explanatory, although OSHA retained the definition of this term in this final rule. Throughout the standard, when the proposal required the employer to affix a “tagout device,” OSHA has simplified the term to “tag” for the final rule. The term is defined as a prominent warning device that includes a means of attachment that can be securely fastened to an energy-isolating device in accordance with an established procedure to indicate that the energy-isolating device and the equipment being controlled must not be operated until the tag is removed by an authorized employee.

Tags-plus system.

A definition for “tags-plus system” was added to clarify the requirements of § 1915.89, Control of hazardous energy. Although similar to the proposed “tagout” definition, it needed to be revised to be consistent with requirements in the final standard. Tags-plus is a system for controlling hazardous energy that is comprised of: An energy-isolating device with a tag affixed to it and an additional safety measure. It is imperative that employers and employees understand that the system is made up of two parts; without both components, employers will not meet the tags-plus requirements, and employees will not be fully protected.

Verification of isolation.

In § 1915.89 of the final rule, a new term, “verification of isolation,” was added for clarification. The term refers to the means necessary to detect the presence of hazardous energy, which may involve the use of a test instrument, such as a voltmeter, a visual inspection, or a deliberate attempt to start-up the machinery, equipment, or system. For electric shock protection, employers may not use a visual inspection or a deliberate attempt to start-up the machinery, equipment or system.

Walkway.

In § 1915.81, Housekeeping OSHA included a single definition for “walking and working surfaces” in the proposal. Based on comments, that section was amended for clarity. As explained in the summary and explanation of § 1915.81, OSHA split the requirements for walkways and working surfaces into separate provisions and added definitions for both of these terms in this final rule. A “walkway” is any surface where employees walk or pass through to perform their job tasks. This may be a vertical, slanted, or horizontal surface, and may include access ways, designated walkways, aisles, exits, gangways, ladders, ramps, stairs, and passageways. In addition, if an

employer has instructed employees to use an area such as a scaffold to gain access to other locations, the scaffold will also be considered a walkway.

Work area.

OSHA has defined two new terms—“work area” and “worksite”—that are used throughout this subpart. These terms were added in response to the number of commenters asking for such definitions (Exs. 101.1; 104.1; 107.1; 124; 126; 128; 130). Richard Webster from Marine Industries Northwest testified: “Work area is also an awkward definition. You've got work location and work area, but you really don't define what it is. * * * So it would be helpful to have work area * * * much better defined than it is right now” (Ex. 198, p. 195). The Agency agrees that defining terms will assist employers to better understand the intent of the provisions where the terms occur. Thus, a “work area” is defined as a specific area, such as a fabrication area, machine shop, tank, space, or hold, where one or more employees are working.

Working surface.

A “working surface,” as used in § 1915.81, Housekeeping, encompasses any surface where work is occurring or any area where tools, materials, and equipment are being staged for performing work. This definition does not include storage areas where tools, materials, and equipment have been stored out of walkways, but it may include a walkway that is now being used to stage tools, materials, and equipment for a job in progress.

Worksite.

As discussed previously, this term was added in response to the number of commenters asking for a definition (Exs. 101.1; 104.1; 107.1; 124; 126; 128; 130). A “worksite” is a general work location where employees are performing work, such as a shipyard, pier, vessel, vessel section, or barge.

Terms Not Defined and Definitions Deleted by OSHA

The Agency has decided not to define “adequate” or “adequate number,” as used primarily in § 1915.87, Medical services and first aid. Richard Webster of Marine Industries Northwest stated, “You use the terminology over and over again, adequate, adequate. Adequate number of first aid kits, adequate number of—adequate supplies. * * * The term is just begging for [a] definition” (Ex. 198, p. 194). Other commenters stressed the need to define “adequate” (Exs. 101.1; 124; 126; 128; 130.1). OSHA believes that the employer, by considering the factors required in § 1915.87(c)(3), will be able to determine the number of first aid providers they will need at their facility. These factors include the size and location of each shipyard worksite, the number of employees at each worksite, and the nature of the hazards present at each worksite. To determine first aid and CPR needs, employers must also consider the distance of each worksite from on-site infirmaries or clinics, or off-site hospitals. For sanitation facilities, employers must take into account the distance of each worksite from the sanitation facilities.

OSHA has also deleted the following proposed definitions from the final rule: “Energized,” “energy source,” “hot tap,” and “ship's systems.” While no comments were received on these definitions, Electric Boat Corp. noted that proposed § 1915.89(a)(2)(iii)(B) referred to “hot-tapping” even though 29 CFR 1915.14 “requires a Marine Chemist certificate for hot work on pipelines that contain or have contained flammable or combustible liquids” (Ex. 108.1). Furthermore, Electric Boat Corp. noted:

NFPA Standard 306 (Control of Gas Hazards on Marine Vessels) does not permit the Marine Chemist to authorize hot tapping except in emergency situations where the vessel is in peril. If this work cannot be authorized in the marine environment why include it in the proposed standard. The practice of hot tapping in a shipyard should be removed to eliminate any confusion (Ex. 108.2).

OSHA agrees with the commenter and understands that hot tapping is an uncommon practice in shipyard employment. Therefore, the definition and related provisions have been removed from this final rule.

The terms “energized,” “energy source,” and “ship's systems” are no longer used in the regulatory text of § 1915.89 of this final rule and, therefore, need not be defined.

Definitions Included Without Change or With Minor Editorial Changes

OSHA did not receive comments on the remaining definitions, and believes that all of the terms used in this subpart are “terms of art” in the industry and are universally recognized by shipyard employees and employers. In addition, some terms were carried forward into the final standard with only minor editorial changes. These terms include “affected employee,” “capable of being locked out,” “energy-isolating device,” “healthcare provider,” “lockout,” “motor vehicle,” “portable toilet,” “potable water,” “sanitation facility,” “serviceable condition,” “sewered toilet,” “tagout,” “vehicle safety equipment,” and “vermin.”

Section 1915.81—Housekeeping

This section of the final rule covers housekeeping issues that are found throughout shipyard employment that, unless adequately addressed, can add to an already hazardous environment. The final rule, like the proposed rule, consolidates, revises, and reorganizes the housekeeping requirements applicable to shipyards (§ 1910.141(a)(3) and § 1915.91). However, in the final rule OSHA has changed the approach to, and the organization of, the housekeeping requirements.

In the proposed rule, OSHA applied the housekeeping requirements uniformly to all “walking and working surfaces” rather than treating walking surfaces and working surfaces as two distinct areas having unique characteristics and warranting separate safety considerations and requirements. As mentioned in the discussion of § 1915.80(b), the proposed rule defined walking and working surfaces as “any surface on or through which employees gain access to or perform their job duties or upon or through which employees are required or allowed to walk or work in their workplace.” The proposed definition also specified that the term included work areas, accessways, aisles, exits, gangways, ladders, ramps, stairs, steps, and walkways. OSHA applied this umbrella term to all of the housekeeping requirements in an attempt to make this section easier to understand.

However, many commenters expressed concern that combining walking and working surfaces created a term that was too broad (Exs. 106.1; 108.2; 117.1). For example, Electric Boat stated: “Every location in a shipyard and on a vessel has the potential to be a working surface” (Ex. 108.2). Bath Iron Works added that the term walking and working surfaces is so broad that it “will include every square foot of a shipyard” (Ex. 106.1).

Stakeholders also said combining walking and working surfaces as one term could result in confusion since walking surfaces sometimes became working surfaces and vice versa (Exs. 121.1; 199, p. 102). Manitowoc Marine Group commented: “During the construction and repair of a vessel, many operations take place simultaneously, and it could be easily very difficult to discriminate what is and what is not considered, quote, a ‘work area’ ” (Ex. 168, p. 68). Commenters from the American Shipbuilding Association and the North Pacific Fishing Vessel Owners' Association requested that OSHA establish separate definitions for walkways and working surfaces to eliminate potential confusion (Exs. 117.1; 197).

Northrop Grumman—Newport News pointed to the uniqueness of working surfaces in shipyard employment to support dividing walking and working surfaces into separate terms:

Shipbuilding and repair, by nature, requires employees to access numerous small, awkward spaces, such as the catapult wing voids on aircraft carriers and vertical launch silos on submarines; therefore, working space is inherently limited even under the very best housekeeping practices (Exs. 116.2; 120.1).

Based on the comments received and testimony heard, OSHA has decided to separate “walking and working surfaces” into two terms: “walkways” and “working surfaces.” Section 1915.80(b)(35) of the final rule defines a “walkway” as any surface on which employees walk, including areas that employees pass through, to perform their job tasks. Walkways include, but are not limited to, accessways, designated walkways, aisles, exits, gangways, ladders, ramps, stairs, steps, passageways, and scaffolding. If an area is used or is intended to be used, to gain access to other locations, it is a walkway within the meaning of the final rule.

The final rule defines “working surface” as any surface where work is occurring or any area where tools, material, and equipment are being staged for performing work (§ 1915.80(b)(37)).

To make the distinction between walkways and working surfaces, OSHA has reorganized § 1915.81 of the final standard into three paragraphs. Paragraph (a) covers general requirements that apply to both walkways and working surfaces; paragraph (b) includes specific requirements for walkways; and paragraph (c) includes specific requirements for working surfaces.

Paragraph (a)—General Requirements

Paragraph (a)(1) requires the employer to establish and maintain good housekeeping practices to eliminate hazards to employees to the extent practicable. Proposed § 1915.81(a) required that the employer maintain good housekeeping conditions “at all times” to ensure that walking and working surfaces “do not create a hazard for employees.” American Seafoods Company commented that this requirement was “vague and impractical in that maintenance and cleaning operations at times necessitate that the walking and working surfaces be lifted from their frames” (Ex. 105.1). In addition, the U.S. Navy stated that the term “ ‘[g]ood housekeeping’ adds an ambiguity without apparent benefit” (Ex. 132.2). Other stakeholders said that in shipyard employment it is not always possible to maintain good housekeeping conditions at all times (Exs. 99; 104.1; 107). For example, Steven Labreque of Electric Boat Corp. said: “Maintaining a clean and dry condition in all these locations is simply not feasible” (Ex. 108.2).

After considering stakeholder comments and other information in the record, OSHA has modified the language in § 1915.81(a) of the final rule in two ways. First, the final rule requires that employers establish good housekeeping practices. OSHA's intention in including a general housekeeping requirement has always been to ensure that shipyard employers develop and implement procedures for regular and systematic housekeeping to minimize hazards and protect employees from harm. In particular, OSHA believes that requiring employers to establish regular housekeeping practices will be effective in helping to reduce the large number of slip, trip, and fall injuries that occur in shipyard employment. As stated in the preamble to the proposed rule (72 FR 72458, December 20, 2007), according to the BLS data for 2002, slips, trips, and falls accounted for 19 percent of all injuries and illnesses involving days away from work in ship and boat building and repairing (Ex. 69).

Second, OSHA has revised the language in paragraph (a)(1) to require that employer housekeeping practices eliminate hazards to employees “to the extent practicable.” The proposed rule would have required that employers ensure that they maintain good housekeeping conditions at all times in their workplaces so no hazard is created for employees. The revised language recognizes that, due to unique conditions inherent in shipyard employment, it may not be possible to maintain good housekeeping conditions in shipyard-employment workplaces at all times or ensure that workplace conditions never present a hazard. However, the rule requires employers to implement and maintain rigorous housekeeping conditions unless it is impracticable.

Paragraph (a)(2) specifies that employers must eliminate slippery conditions on walkways and working surfaces “as necessary.” This provision, proposed as paragraph (g), would have required that slippery conditions, including snow and ice, be eliminated “as they occur.”

Northrop Grumman Shipbuilding—Newport News supported the proposal: “[E]liminating slippery conditions, including those associated with snow and ice, are important to minimizing the risk of an employee slipping and being injured” (Exs. 116.2; 120.1). However, a number of other commenters were opposed to the proposed requirement. Trident Seafoods Corporation, the U.S. Navy, Bath Iron Works, the Shipbuilders Council of America, American Shipbuilding Association, and Sound Testing, Inc., said it is extremely difficult in shipyard-employment worksites to ensure that snow and ice are immediately eliminated (Exs. 104.1; 106.1; 107.1; 114.1; 115.1; 117.1; 118.1; 119.1; 121.1; 125; 132.2; 168, p. 68; 199, pp. 55, 80-83). For instance, Atlantic Marine said: “It is not practical to eliminate snow and ice as they occur” (Exs. 115.1; 118.1). Roy Martin testified that the proposed requirement “represents an unrealistic expectation. Removing snow and ice as they occur is not practical, considering, as I well know [from] firsthand experience on the Great Lakes, conditions such as this may last several days, making constant attention a major burden, if not infeasible” (Ex. 168, p. 57). Dale Myer of Arctic Storm Management Group testified that requiring employers to clean slippery conditions as they occur would be impossible because such conditions were “almost impossible to define. When is a surface slippery? * * * So is one flake going to be snow occurred? Is one inch going to be snow occurred? Is a trace of snow going to be as it occurs?” (Ex. 199, p. 82).

Stakeholders suggested alternative approaches. Atlantic Marine suggested that OSHA allow “a practical amount of time” to remove snow and ice (Exs. 115.1; 118.1). Dale Myer recommended:

I believe that the phrases that you have in subsection D [proposed paragraph (d)], which talks about the dry conditions, as it reads it says, maintain so far as practical in dry conditions. I think that phrase, `so far as practical,' should actually be incorporated into G [proposed paragraph (g)] (Ex. 199, p. 83).

To address stakeholders' concerns, OSHA has revised the language of the final rule to require that employers eliminate slippery conditions “as necessary.” OSHA intends “as necessary” to mean that conditions are such that they can pose a hazard to employees. The revised language gives employers flexibility in determining whether the particular conditions may pose a hazard to employees or have deteriorated such that action is necessary. In addition, the performance-based approach gives employers flexibility in determining what method of eliminating slippery conditions will work most effectively for them.

During the hearings, participants described some of the methods and

procedures they use at their shipyard facilities. For instance, Roy Martin described how Manitowoc Marine Group deals with ice and snow:

We will have someone come in the moment we do have an event, and they will start the cleanup process, as much as feasible. They will clean the main thoroughfares, and they will sand-salt as they are cleaning as well. We do have areas around the vessels which we train our employees to help utilize the salt-sand buckets, for lack of [a] better phrase, at these areas as well. We utilize a lot of employee assistance in that, because, as you well know, there are instances where we have days of extensive weather (Ex. 168, p. 93).

Some stakeholders stated that, in certain severe weather conditions, it was not always possible to eliminate slippery conditions (Exs. 115.1; 116.1; 118.1). The final rule recognizes that, in some circumstances, weather conditions may make it impracticable for employers to eliminate slippery conditions. In such cases, employers must take alternative action to ensure that employees are not injured. Accordingly, the final rule specifies that when it is impracticable for employers to eliminate slippery conditions, they must either (1) restrict employees to designated walkways and working surfaces where the employer has been able to eliminate slippery conditions, or (2) provide employees with slip-resistant footwear. This footwear must be provided in accordance with 29 CFR part 1915, subpart I. In particular, § 1915.152(f) specifies whether the employer must provide personal protective equipment (PPE) at no cost to employees.

OSHA does not think that employers will have difficulty in complying with the alternative methods. For example, Dale Myer stated that their company already has incorporated slip-resistant footwear in their housekeeping program:

Another thing that we do is we have bought our crew slip-on, you know, we call them toggles. What they are is they're just, they slip right over the rubber boots and stuff like that. They're like grippers. And when we have been working on the dock and the dock is slippery, we provide those to our crew members (Ex. 199, pp. 87-88).

Paragraph (a)(3) requires that employers store materials in a manner that does not create a hazard for employees. Proposed § 1915.91(h) would have required that “construction materials” be stacked in a manner that does not create a hazard to employees. Information in the record, including site visits to shipyards and on fishing vessels (Ex. 207), support expanding the final rule to cover more than construction materials and address additional storage methods. Shipyard employment activities involve large amounts of materials, including construction materials, drums filled with hydraulic fluid, pallets (empty and full), and equipment such as welding machinery. If any of these materials are not properly stored or stacked, they could create a hazard for employees. For instance, if hydraulic drums are not properly stacked, they could topple over and injure workers. Scaffolding material could cause trips and falls if they are not stored properly when not in use. Therefore, the final rule expands the scope of this provision to cover all materials used in shipyard employment, including materials for constructing or repairing vessels and vessel sections, as well as any materials used in daily shipyard operations.

In addition, the final rule specifies that the employer must “store” materials safely, which is more comprehensive than the proposed requirement to “stack” materials safely. OSHA believes that requiring materials to be stored safely will protect employees from injury no matter whether the employer chooses to stack them or use another storage method.

Paragraph (a)(4) requires that employers maintain easy and open access to fire alarm boxes, fire call stations, all fire-fighting equipment, and exits, including ladders, staircases, scaffolds, and gangways. Proposed § 1915.81(f) contained a similar requirement, but the provision referred generally to maintaining easy access to “exits.” In shipyard-employment workplaces, there are many types of exits and methods of egress, including gangways, ladders, staircases, and scaffolds. OSHA believes that employees must have immediate access to all means of egress in the event of an emergency. Therefore, the final rule clarifies additional types of exits in shipyard-employment workplaces to which the employer must maintain easy and open access.

Paragraph (a)(5) requires that all flammable and combustible substances, such as paint thinners, solvents, rags, scrap, and waste, be disposed of or stored in covered fire-resistant containers. The final rule combines proposed paragraphs (j) and (k) into one provision. Proposed § 1915.81(j) would have required that all oils, paint thinners, solvents, waste, soaked rags, or other flammable substances be kept in fire-resistant covered containers when not in use. Similarly, proposed § 1915.81(k) would have required that combustible scrap be removed from work areas as soon as possible.

Several commenters, including Bath Iron Works, the Shipbuilders Council of America, and Atlantic Marine, recommended that OSHA delete both proposed paragraphs (j) and (k), saying 29 CFR part 1915, subpart P, Fire Protection in Shipyard Employment, covers these issues (Exs. 106.1; 108.2; 114.1; 115.1; 117.1; 118.1). To the extent that subpart P covers the hazards of flammable and combustible substances, the requirements only apply to work areas where hot work is performed. Section 1915.81(a)(5), on the other hand, addresses flammable and combustible substances wherever they are used, located, or stored in shipyard-employment worksites. Therefore, OSHA believes it is necessary to retain the proposed requirements in the final rule. The Agency believes that the removal or proper storage of flammable and combustible substances is important to ensure that employees have safe working conditions.

Paragraph (a)(5) also requires that flammable and combustible substances be disposed of or stored at the completion of a job or end of a workshift, whichever occurs first. Proposed § 1915.81(j) would have required that flammable substances be stored “when not in use,” while proposed § 1915.81(j) would have required that combustible scrap be removed from work areas “as soon as possible.”

Trident Seafoods Corporation raised concerns about when employers must store or dispose of substances (Exs. 104.1; 107.1; 199, pp. 136-137):

Does `when not in use' mean that closed paint thinner cans must be placed in covered fire resistant containers during short breaks? It would be better if this requirement read along the lines of `at the end of the shift, when no longer needed for [on] the particular portion of the job being performed or end of the work day whichever comes first' (Exs. 104.1; 107.1).

OSHA agrees with the commenter's recommendation. OSHA did not intend to require that employers store flammable substances while employees are at lunch or on break. OSHA used performance-based language in proposed paragraphs (j) and (k) to give employers flexibility in how to best comply with the requirements. OSHA believes the commenter's recommendation provides clearer direction to employers, while ensuring adequate protection for employees. Accordingly, the final rule requires that employers dispose of or store flammable and combustible substances at the end of each workshift or when the job is completed, whichever occurs first.

Paragraph (b)—Walkways

Paragraph (b) sets forth requirements to protect employees from hazards when they are using walkways. OSHA has included in paragraph (b) those requirements from the proposed rule that were intended to apply primarily to walkways, as well as requirements that address issues that are unique to walkways.

Paragraph (b)(1)(i) requires that all walkways provide adequate passage. The proposed rule contained a similar requirement (proposed § 1915.81(b)). This requirement is intended to be read in conjunction with paragraphs (b)(1)(ii)-(iv), which address keeping walkways clear of debris, materials, hoses, and cords. Taken together, these provisions provide employers with directions for ensuring that walkways provide safe and adequate passage.

Paragraph (b)(1)(ii) requires that walkways be clear of debris, including solid and liquid wastes, that may create a hazard for employees. The proposal included a similar provision (§ 1915.81(e)). Sound Testing, Inc., requested that OSHA define “solid and liquid waste” (Ex. 121.1). OSHA believes that employers understand that “solid and liquid waste” includes any materials unused and rejected as unwanted, such as trash, used materials, scraps, studs, welding rod tips, nuts or bolts, broken equipment, empty containers, or other items that will be thrown away. OSHA intends that the term have only the normal definition of “waste”; therefore, the Agency does not believe it is necessary to add a definition to the regulatory text.

Paragraph (b)(1)(iii) specifies that employers ensure walkways are free from tools, materials, equipment, and other objects that may cause a hazard to employees. Proposed § 1915.81(c) would have required that only tools, materials, and equipment necessary to perform the job in progress may be kept on walking and working surfaces, and that all other tools, materials, and equipment be stored or located in an area that does not interfere with walking and working surfaces.

General Dynamics Electric Boat and Sound Testing, Inc., recommended that the provision be applied only to walkways, not working surfaces (Exs. 108.2; 121.1). For example, Phil Dovinh, of Sound Testing, Inc., stated:

Walking surfaces should be kept clear of all tools and equipment at all times—portable welding machines, generators, blowers and ventilation equipment, gas cylinders and fire extinguishers, welding leads, cables and hoses, pressure washers, pumps, etc * * * all are necessary during hot work, repair or maintenance operations, and could easily block a walkway—hence potentially hindering an emergency escape. A walking surface can become a working surface when the repair is required—only then tools and equipment may be placed on the walking surfaces as needed to successfully complete the job (Ex. 121.1).

OSHA believes that walkways must be clear from tools, materials, and equipment at all times. If materials and equipment are placed in walkways, employees passing through the area are at risk of injury. OSHA recognizes that workers need to have the necessary tools, materials, and equipment at hand to perform their jobs. However, if employees place materials or equipment in a walkway, that walkway becomes a working surface and the employer must prevent the area from being used as a walkway (see discussion of paragraph (b)(2)).

Paragraph (b)(1)(iv) requires that walkways be clear of hoses and electrical service cords, and identifies acceptable means to meet that requirement. The purpose of the proposed and final provisions is to prevent injury to employees and damage to the hoses and cords.

The proposed rule (proposed § 1915.81(i)) contained a similar requirement, but it did not include a general provision allowing employers to use other suitable means to keep hoses and cords out of walkways. Stakeholders suggested that OSHA allow employers to use additional methods to prevent employee contact with hoses and cords. For example, Trident Seafood Corporation recommended “the option of ensuring that hoses and electrical cords are kept to the side of a walkway or working surface provided they are not trip hazards or in danger of being damaged” (Exs. 104.1; 107.1). General Dynamics NASSCO recommended that:

Hoses, cords and leads shall be routed in a manner that prevents employee exposure to trip hazards and damage to the hoses, cords, and leads. Walkways shall be kept free of trip hazards by routing hoses, cords and leads overhead, through crossovers or by other suitable means (Ex. 119.1).

OSHA agrees with the commenters' statements that there are additional safe ways to protect employees from contact with hoses and cords in walkways. Accordingly, OSHA has modified paragraph (b)(1)(iv) to provide employers alternatives to comply with this provision. Employers may either place hoses and cords above walkways, underneath walkways, or on walkways, provided they are covered by crossovers or other means. In addition, OSHA has added a performance-based alternative that allows the employer to protect each hose and cord by another suitable means, provided that the “suitable means” provides equivalent protection for employees and prevents damage to the hoses and cords. OSHA believes that this revision gives employers greater flexibility in complying with the requirement of paragraph (b)(1)(iv).

Several commenters raised an issue about applying this provision to both walking and working surfaces. Northrop Grumman Shipbuilding—Newport News argued that the provision was not feasible for working surfaces: “Employees may perform job tasks in tight, confined or otherwise awkward areas on ships where there is limited overhead to hang a line or room to cover the line” (Exs. 116.2; 120.1). Based on these comments, the Agency has changed the final rule so it applies only to walkways.

In paragraph (b)(2) of the final rule, OSHA is adding a new requirement that specifies what action employers must take if they use a walkway as a working surface. Paragraph (b)(2) requires that employers cordon off any portion of a walkway they are using as a working surface to prevent the area from being used as a walkway.

As mentioned, many stakeholders said using walkways as working surfaces is a common occurrence in shipyard employment (Exs. 108.2; 121.1; 199, p. 122). Philip Dovinh, from Sound Testing, Inc., commented: “A walking surface can become a working surface when repair is required—only then tools and equipment may be placed on the walking surfaces as needed to successfully complete the job” (Ex. 121.1).

The new requirement ensures that this common occurrence in shipyard employment does not injure or endanger workers. If workers are allowed to walk through a walkway that is also being used as a working surface, they could bump into employees working in the area or disturb equipment or materials that are being used to perform the job in that area. OSHA believes that this new requirement protects not only workers who otherwise would use the walkway as a thoroughfare, but also employees who are working in the cordoned-off section.

OSHA notes that even if the employer uses a portion of a walkway as a working surface, the employer is still required to ensure that each walkway provides adequate passage (§ 1915.81(b)(1)(i)). If the remaining portion of the walkway does not provide adequate passage, the employer must provide other means of access.

Paragraph (c)—Working Surfaces

Paragraph (c) specifies the requirements that employers must follow, in addition to those in paragraph (a), to protect employees on working surfaces. Paragraph (c)(1) requires that employers ensure that each working surface is cleared of tools, materials, and equipment that are not necessary to perform the job in progress. The proposed rule contained a similar requirement (proposed § 1915.81(c)). OSHA understands that some jobs may require a large amount of tools, materials, or equipment, and that workers should be able to access these items as they are needed. However, excess tools, materials, and equipment pose a risk of slips, trips, falls, or other injuries. In addition, excess materials take up precious space in what stakeholders say are small, tight working areas in shipyard employment (Ex. 116.2; 120.1). OSHA did not receive any comments opposing this requirement as it applies to working surfaces.

Paragraph (c)(2) requires employers to ensure that each working surface is cleared of debris, including solid and liquid waste, at the end of each workshift or job, whichever occurs first. Proposed § 1915.81(e) would have required that both walking and working surfaces be kept clear of debris at all times. OSHA has modified that requirement as it applies to working surfaces in this final rule. In active work areas, OSHA recognizes that the job may produce debris. OSHA did not intend to require employers to stop the job to clear the area every time debris is produced. Rather, OSHA intended that at the end of each workshift, the employer shall clean up and remove debris from the work area. If a job is completed before a workshift ends, the final rule requires that the employer clear debris from the work area at that time. The Agency believes that the revised language in paragraph (c)(2) provides greater clarity than the proposal.

Paragraph (c)(3) specifies that each working surface be maintained, so far as practicable, in a dry condition. When wet processes are used, the final rule requires that the employer implement measures so workers have dry standing places. If that is not practicable, the final rule requires that the employer provide footgear that protects the employee from the wet process. Proposed § 1915.81(d) contained a similar requirement.

A number of commenters said the language in the proposed rule implied that employers would be required to provide waterproof footgear to all workers any time the floor or deck of a work area became wet. Atlantic Marine stated that:

The way this paragraph reads, employers would have to provide waterproof foot gear every time it rains because the surface may not dry immediately. Atlantic Marine assumes that OSHA did not intend rain gear to be required PPE since it is specifically excluded in the recent payment for PPE final rule; however, the way that this section is worded, it becomes required PPE. Please remove or reword this section (Exs. 115.1; 118.1).

American Shipbuilding Association added:

Paragraph (d) is problematic due to the breadth of its scope[;] however[,] the proposal retains the existing requirement that employers must provide waterproof boots to workers in every work area where wet processes take place if keeping the floor or deck of that work area dry is not practicable. Because every location in a shipyard and on a vessel is a potential working area and many of those areas are located outdoors, the proposal should be more specific in defining work areas and should explicitly exclude walking areas. Otherwise, it could be interpreted to mean that employers must provide waterproof boots to all employees in the event of rain at the facility. Among wet processes, the proposal explicitly includes painting and cleaning. Those two processes should be removed as examples because waterproof footgear does not necessarily provide the best protection when painting and cleaning. Many waterproof rubbers will dissolve in solvents used in the painting process. Cleaning a tank containing acid, for example, requires more than waterproof footgear for adequate protection (Ex. 117.1).

Other commenters raised the same concerns (Exs. 104.1; 106.1; 107.1; 199, pp. 80-81, 106).

OSHA believes it is important for employers to maintain working surfaces in dry condition when possible to protect employees from injury. Keeping working surfaces dry will help to prevent slips, trips, and falls, which constitute a significant portion of injuries in shipyard employment (Ex. 69). Therefore, OSHA is retaining this general provision in the final rule.

Paragraph (c)(3) also requires that employers take additional actions if they cannot keep working surfaces in a dry condition. However, these additional actions only apply in work areas where employers are using wet processes. Shipyard employment involves various wet processes, including hydroblasting, gas-freeing, and cleaning. Employers do not have to implement the additional actions in non-wet processes or operations or where working surfaces are wet because of weather conditions. OSHA has revised the language in paragraph (c)(3) to clarify that the additional actions only apply in work areas where wet processes are used.

If employers cannot keep working surfaces in a dry condition when using wet processes, they will need to maintain drainage and implement measures, such as false floors, platforms, mats, or other types of dry standing places, to prevent employees from being exposed to contaminated water or from standing for prolonged periods of time in water, both of which may result in adverse health effects.

When the employer demonstrates that this procedures is not practicable to implement measures in wet processes that will provide dry standing places for workers, paragraph (c)(3) requires that employers provide footgear that protects employees from exposure to contaminants (for example, standing in water to perform job tasks). Paragraph (c)(3) also requires employers to provide protective footgear in accordance with the requirements of subpart I. Among other requirements in subpart I, § 1915.152(f) establishes requirements for when employers must provide personal protective equipment at no cost to the employee.

In addition, OSHA has revised the language in paragraph (c)(3) specifying what type of footgear employers must provide when it is not practicable for the employer to keep the working surface dry. The final rule requires employers to provide “protective footgear” in such cases. The proposed rule, on the other hand, would have required that employers provide “waterproof footgear, such as rubber overboots.” As noted earlier, one stakeholder pointed out a problem with the proposed requirement to provide waterproof or rubber boots in certain wet processes:

Among wet processes, the proposal explicitly includes painting and cleaning. Those two processes should be removed as examples because waterproof footgear does not necessarily provide the best protection when painting and cleaning. Many waterproof rubbers will dissolve in solvents used in the painting process. Cleaning a tank containing acid, for example, requires more than waterproof footgear for adequate protection (Ex. 117.1).

OSHA believes that the revised language in the final rule addresses the commenters' issue and ensures that employers provide the type of footgear that will protect employees in the particular wet process they are using or working.

Section 1915.82—Lighting

This section sets forth lighting requirements in shipyard-employment

workplaces. OSHA reorganized this section into four paragraphs: (1) General requirements; (2) temporary lights; (3) portable lights; and (4) explosion-proof, self-contained lights.

Paragraph (a)—General Requirements

Paragraph (a) establishes general lighting requirements that apply in all areas of shipyard employment, regardless of whether permanent or temporary lights are used. Adequately lit workplaces are essential in preventing employees from being injured or killed because they can't see and avoid hazards that might be present. As discussed in the preamble to the proposed rule, there have been fatalities in shipyard employment that may have been prevented if the employer had provided adequate lighting (72 FR 72452, 72459-60, Dec. 20, 2007). In one case, an employee was electrocuted while performing repair work in a poorly lighted area. In another case, an employee was killed when he stepped into a dark cargo deck and fell through an opening in the floor to the bottom of the cargo hold. These types of worker fatalities clearly indicate that employers need to provide lighting that is sufficient for employees to see where they are, where they are going, and what job tasks they are performing.

Paragraph (a)(1) requires that employers adequately illuminate each work area and walkway whenever a worker is present. This requirement is the same general requirement as the existing rule and the proposed rule. OSHA received no comments opposing this requirement and, therefore, is retaining the requirement in the final rule.

In paragraph (a)(2), OSHA carries over from the proposal the table of lighting intensity levels (Table F-1) for landside areas. For vessels and vessel sections, paragraph (a)(3) allows employers either to provide lighting that achieves the levels in Table F-1 or to meet the requirements of ANSI/IESNA RP-7-01, “Recommended Practice for Lighting Industrial Facilities” (incorporated by reference as set forth in § 1915.5). The proposed rule would have required employers to provide lighting on vessels and vessel sections that meets the levels in Table F-1.

Table F-1 sets forth the minimum illumination requirements for designated areas in shipyard employment. For instance, Table F-1 specifies that general landside areas, such as corridors and walkways that employees pass through, must have an illumination intensity of at least five lumens (foot candles). Higher illumination levels (for example, 10 lumens) are required for landside areas such as machine and carpentry shops where employees use hazardous tools and equipment and perform precision work. Likewise, higher illumination levels are required in warehouses, where employees read signs and warning labels and operate forklift trucks and other heavy equipment where controls or instructions must be seen and understood. OSHA developed the illumination levels in Table F-1 from the requirements in its Construction Illumination (§ 1926.56) and Hazardous Waste Operations (§ 1910.120) standards, and from the American National Standards Institute (ANSI) standard, Recommended Practice for Lighting Industrial Facilities (ANSI/IESNA RP-7-01) (Ex. 38). The Agency believes illumination requirements at these levels will help to ensure that workers have sufficient lighting to safely move about and perform work tasks.

Table F-1 of the final rule includes a note indicating that the required illumination levels in the table do not apply to emergency or portable lighting. The final rule carries over the note in proposed Table F-1 with minor revisions. OSHA did not receive any comments on the note.

OSHA developed proposed Table F-1, in large part, because SESAC recommended that OSHA revise the lighting standards to include specific illumination levels (Docket SESAC-1992-1, Ex. 100X, 1992, p. 113). Some stakeholders, such as General Dynamics NASSCO, generally agreed with requiring employers to meet the illumination levels in Table F-1 (Ex. 119.1). However, OSHA also received mixed reaction to the proposed Table F-1. During the hearing John Killingsworth, representing the Puget Sound Shipbuilders Association, testified:

[T]he numbers in this table on lumens for specific work areas are somewhat reasonable and they're achievable. But in my 43 years of work experience, I've never had to carry a light meter into any work area I've been in. In order to comply with this section, however, I guess I'll have to. Will it reduce risk? I don't think so (Ex. 198, p. 86).

OSHA also received several comments opposing the application of proposed Table F-1 on vessels (Exs. 105.1; 112.1; 131.1; 132.2; 168, pp. 286-287; 198, pp. 20-22). For instance, Northrop Grumman Shipbuilding—Newport News stated:

We agree that adequate lighting is important to ensure employees can access and perform work safely. However, we have conducted numerous lighting measurements on ships and do not believe that a prescriptive table of lighting intensities is practical. Our findings indicate that it is extremely difficult to obtain uniform lighting due to interferences associated with ship's components and materials. Our results indicate that passageways and decks, in general, are visible at lighting levels below those listed in the table. We recommend that Table [F-1] be removed and that performance-oriented language be provided along with a non-mandatory reference to ANSI/IESNA [RP-7-01-2001]. We recommend the following or similar language, `The employer shall ensure that areas where employees will work or must pass through to access their work are adequately illuminated.' ANSI/IESNA [RP-7-01-2001] should be used as a non-mandatory reference to assist in determining the adequacy of lighting (Exs. 116.2; 120.1).

The American Shipbuilding Association (ASA) stated:

Our findings indicate that it is extremely difficult to obtain uniform lighting [on vessels] due to the variety of shipboard configurations encountered. Equipment and smaller internal compartments obstruct lighting and cause shadows even in the best-lit work environments. Unlike in buildings, where lighting is usually level with the ceiling or only slightly recessed, on ships, lighting is often not the lowest fixture in the overhead. It is therefore often subject to obstruction by other ship's structures (Ex. 204.1).

In sum, many commenters found the illumination levels in proposed Table F-1 problematic for vessels and vessel sections.

Although OSHA believes that the minimum levels specified in Table F-1 provide useful and clear assistance for employers, the Agency also is persuaded by stakeholders who expressed that it may be difficult for them to maintain uniform lighting levels on vessels and vessel sections using permanent lighting, particularly when the vessel is old or when the employer does not own the vessel. Therefore, in final paragraph (a)(3), OSHA is allowing employers to either follow the illumination levels set forth in Table F-1 for lighting vessels and vessel sections or comply with the appropriate values specified in ANSI/IESNA RP-7-01 (2001). For example, an employer could follow Table F-1 or ANSI/IESNA RP-7-01 (2001) for a fabrication area in a shipyard. By following Table F-1, the employer would be required to ensure that the area was illuminated to 10 fc. Figure A2-2, Recommended Illuminance Values for Industrial Areas/Activities—Outdoor, in ANSI/IESNA RP-7-01 requires 30 fc for the same area. Additionally, for changing rooms (locker rooms) Table F-1 would require the employer to ensure that the area was illuminated to 10 fc, while Figure A2-1, Recommended Illuminance Values

for Industrial Areas/Activities—Interior, in ANSI/IESNA RP-7-01 requires 7 fc for the same area.

OSHA believes that paragraph (a)(3) gives employers greater flexibility in providing lighting that is adequate for workers to safely move and work on vessels and vessel sections. OSHA also believes that allowing employers the option of complying with Table F-1 or the values specified in the ANSI standard will help alleviate stakeholder concerns that the proposed rule would require them to obtain costly personnel and equipment to verify lighting levels (Exs. 116.2; 120.1). In particular, stakeholders were concerned about the costs associated with verifying lighting levels, particularly on vessels undergoing constant change during construction and repair (Ex. 204.1). (See Section IV, Final Economic Analysis, for further discussion.)

Based on the record and site visits, OSHA recognizes that permanent lighting on vessels and vessel sections may be limited. In some circumstances and areas, it may not be possible for employers to install permanent lighting that meets the required illumination levels. This may be particularly true for older vessels. To address this issue, OSHA added a new requirement (paragraph (a)(4)) specifying that, when it is impracticable for employers to provide permanent lighting on vessels or vessel sections that meets the requirements in paragraphs (a)(2) and (a)(3), employers must supplement the permanent lighting with temporary lights. OSHA believes this additional requirement is necessary to ensure that employees have adequate lighting to move about and work safely, while giving employers additional flexibility in meeting the lighting requirements.

In paragraph (a)(5), OSHA carries over from the proposed and existing rules the provision prohibiting the use of matches and open-flame devices for lighting, including during emergencies. OSHA believes that matches and open flames can never be a safe method to light a dark area. This rule requires that employers provide employees with portable lights to ensure safe movement when there is no lighting, or when lights are not working (1915.82(c)(1)).

Paragraph (b)—Temporary Lights

Paragraph (b) sets forth the requirements for temporary lighting, including light guards, grounding, insulation, and splicing. For the most part, the final rule carries forward the requirements in proposed § 1915.82(b).

Several commenters suggested that the provisions in paragraph (b) more properly belong in 29 CFR part 1910 subpart S, Electrical (Exs. 106.1; 108.2; 114.1; 168, p. 75). However, others requested that OSHA have one standard on temporary lighting dedicated to the maritime industry (Ex. 105.1). Although some of the requirements in paragraph (b) address electrical issues, they only address electrical issues to the extent they are associated with temporary lighting. The electrical standards in part 1910, on the other hand, are much more comprehensive and focus primarily on more complex electrical issues. As such, OSHA believes that including the requirements in § 1915.82(b) ensures that the provisions receive appropriate focus.

Paragraph (b)(1) requires that temporary lights be guarded if they do not have “completely” recessed bulbs to prevent employees from accidentally coming into contact with the hot bulb. The final rule is identical to the proposed provision. As noted in the preamble to the proposed standard, unless a temporary light is completely recessed, there is a risk that the light could be damaged or broken, thus creating a hazard for employees (for example, electrical shock, laceration, burn) (72 FR 72460). The requirement to have guards or completely recessed lights will prevent employees from accidentally contacting the hot bulb. These safeguards also will help to prevent combustible materials from igniting.

Northrop Grumman Shipbuilding—Newport News supported the proposed provision (Exs. 116.2; 120.1). One stakeholder suggested that OSHA more clearly define what is meant by “completely recessed” and recommended that OSHA replace the term with the following language: “extend beyond the plane of the lighting fixture opening” (Ex. 132.2). OSHA believes that the term “completely recessed” is clear and self-explanatory, and that the recommended language would add unnecessary complexity without providing significant additional benefit or clarity.

Paragraph (b)(2), like the proposed rule, requires that employers equip temporary lights with electric cords “designed with sufficient capacity to carry the electric load.” The final rule updates the existing standard requiring employers to use “heavy duty” electrical cords. OSHA believes that the language in the final rule more clearly and accurately identifies the type of cord employers must provide to ensure that employees are protected from electrical, fire, and other hazards. OSHA recognizes that heavy-duty, hard, and extra-hard cords have accepted meanings in industry standards; however, the use of a heavy-duty cord does not ensure that it has sufficient capacity to carry the particular electric load. OSHA believes the final rule provides clearer direction while giving employers flexibility in choosing what type of cord to use so long as it can safely carry the electric load.

Paragraph (b)(3), like the proposed rule, specifies that connections and insulation for electric cords for temporary lights must be “maintained in a safe condition.” To ensure that connections and insulation are “maintained in a safe condition,” employers must check insulation and connections to determine whether they continue to be in proper working order and replace those that are broken, cracked, or damaged. If insulation and connections are damaged, workers can be exposed to electrical, fire, and other hazards. OSHA remains convinced that this maintenance requirement is necessary for employee safety. OSHA did not receive comments opposing the requirement.

Paragraph (b)(4) prohibits temporary lights and light stringers from being suspended solely by their cords unless the manufacturer has designed them to be hung that way. Improper suspension of lights by their electric cords places the cords under tension that they were not designed to withstand. Such tension could cause the cords to fray, break, or become damaged and expose employees to electrical and other hazards. The only change the final rule makes in the existing rule is to clarify that lights may only be suspended by the cord if the manufacturer designs the cord to be used that way. OSHA did not receive any comments opposing the proposed change.

Paragraph (b)(5) specifies that lighting stringers must not overload branch circuits, while paragraph (b)(6) requires that branch circuits be equipped with over-current protection with a capacity that does not exceed the rated current-carrying capacity of the cord used. Both provisions were contained in the proposed and existing rules. OSHA believes that both measures are necessary to provide an adequate measure of safety from electrical and fire hazards associated with circuit overloading. Stakeholders did not oppose the proposed requirements.

Paragraph (b)(7) specifies that splices must have insulation that “exceeds” that of the original insulation of the cord. When a splice is necessary on an electrical cord, the current may create a surplus of energy or “hot spot” at the splice junction that is greater than the current for which the cord was designed. Requiring that the rated

capacity of the new insulation exceed the capacity of the cord's insulation ensures that employees will be protected if they touch or come into contact with the cord at the splice. The additional insulation capacity also ensures that hot spots do not start burning or ignite combustible materials in the area.

In the proposal, OSHA requested comment on paragraph (b)(7), including whether the Agency should require a more specific requirement. In particular, OSHA requested comment on whether OSHA should require splices to have insulation that is 1

1/2

times greater than that of the cord. NIOSH expressed a preference for such language, saying such a requirement “could be objectively evaluated and may facilitate compliance and enforcement” (Ex. 129.1). Trident Seafoods Corporation made two recommendations. First, they recommended that OSHA provide guidance on determining when splice insulation “exceeds” the original insulation. They also said that OSHA should reference a “recognized standard for determining appropriate splices insulation such as NFPA [National Fire Protection Association] NC70” standard (Ex. 198, p. 72). On the other hand, the U.S. Navy said that the existing rule requiring that splices have insulation “equal” to that of the cord was adequate, and that it complies with the requirements on splices in the NFPA NC70 national consensus standard (Ex. 132.2).

OSHA decided to adopt the proposed requirement for two reasons. First, OSHA believes that requiring splice insulation to exceed the capacity rating of the insulation on the original cord ensures that employees are fully protected from electrical and other hazards. OSHA notes that employers who use splices with insulation that is 1

1/2

times greater than the original will be in compliance with the final rule.

Second, OSHA believes that the performance-based language in the final rule will give employers greater flexibility. OSHA believes that providing employers with such flexibility will be beneficial, especially since different capacities of splice insulation may be needed depending on the use and location of each temporary light cord.

Paragraph (b)(8) requires that exposed, non-current-carrying metal parts of temporary lights be grounded. It also requires that grounding be provided either through a third wire in the cord that contains the circuit conductors, or through a separate wire that is grounded at the source of the current. In addition, it requires that grounding be done in accordance with the electrical standards in 29 CFR part 1910, subpart S. The proposed rule would have required that grounding be done in accordance with the requirements of § 1915.132(b) (subpart H, Tools and Related Equipment). Since publication of the proposal, OSHA promulgated 29 CFR 1910, subpart S, which supersedes § 1915.132(b). Therefore, OSHA updated the reference in the final rule. No comments were received that opposed paragraph (b)(8).

Paragraph (c)—Portable Lights

Paragraph (c) sets forth requirements for providing and using portable lights, including emergency lights. The proposed rule referred to “handheld” portable lights. A number of stakeholders urged OSHA either to define the term “handheld portable lights” used in proposed paragraph (c), or replace it with either “portable light” or the common term “flashlight” (Exs. 101.1; 121.1; 124; 126; 128; 130.1; 168, pp. 72, 353; 198, pp. 86-87). Several stakeholders pointed out that there are various types of portable lights available and used in the industry, not all of which are handheld. For example, some employers provide portable lights affixed to head protection; one stakeholder strings emergency lighting through the vessel in case of a power outage; and another has a generator linked with permanent lighting systems that transfers power in the event that a power outage occurs (Ex. 168, p. 242).

OSHA's intention in the proposed rule was to ensure that workers do not enter unlighted areas or do not have to move about in dark spaces if lights stop working. OSHA believes stakeholder recommendations that employers be permitted to supply employees with other types of portable lights, as well as handheld ones, will provide greater flexibility while ensuring that workers are protected. Accordingly, the final rule allows employers to use handheld lights as well as other types of portable lights.

Paragraph (c)(1) requires that employers provide, and ensure that employees use, portable lights before they enter a dark area if that area does not have permanent or temporary lights, if the lights do not work, or if permanent or temporary lights are not readily accessible. OSHA believes that workers are at great risk of harm when they enter dark areas, especially on vessels. The IMIS database reports several fatalities in shipyard employment in which workers fell to their deaths in dark areas on vessels (72 FR 72452, 72459-60, Dec. 20, 2007).

For purposes of paragraph (c)(1), the term “not readily accessible” means that fixtures for turning on permanent or temporary lights are not located at, or in close proximity to, the entrance to the dark area. For example, when an employee would have to walk across a dark work area or climb steps in the dark to turn on the lights, OSHA would not consider such lights to be readily accessible. In such cases, the employer would have to provide, and ensure that the employee uses, a portable light to enter the area.

OSHA does not believe that employers will have difficulty complying with this requirement. Some stakeholders said it was “common practice” to provide flashlights to workers (Ex. 114.1). Other stakeholders commented that they already require that workers have portable lights when they go below deck on vessels or enter any area where they cannot see the walking surface (Exs. 116.2; 120.1).

Paragraph (c)(2) requires employers to provide portable or emergency lights for the safe movement of employees on a vessel or vessel section when the only means of illumination comes from off-vessel light sources. The proposed rule contained a similar requirement. Like paragraph (c)(1), this provision is needed because off-vessel lighting could fail, making it hazardous for employees to move around or exit a dark area on the vessel or vessel section. If off-vessel lights stop working when employees are working below deck on a vessel, the workers could be injured or killed if they try to move around or exit the space.

Final paragraph (c)(2) changes the proposed rule in two respects. First, the final rule allows employers to provide either emergency or portable lights. The proposed rule would have required employers to provide portable lights. OSHA is expanding the final rule because some stakeholders said they use back-up generators that activate if off-vessel lights go out (Ex. 168, p. 243).

Second, the final rule deletes the proposed language requiring that employers ensure that portable lights are available in “the immediate work area.” Some stakeholders questioned what the immediate work area is when lights go out and asked OSHA to define the term in the final rule (Ex. 168, p. 297). After reviewing the record, OSHA finds that what constitutes an immediate work area on a vessel varies based on factors such as the size of the vessel and its work areas, the number of employees working on the vessel and in specific work areas, and the type of portable or emergency lights being provided. OSHA believes employers

need to examine those factors to determine where portable and emergency lights need to be located to ensure each employee is able to move safely.

Also implicit in paragraph (c)(2) is the requirement that employers provide an adequate number of portable or emergency lights to ensure that each employee is able to move about and exit the dark areas safely. The factors employers use to determine where portable lights need to be located are the same factors for determining the number of portable or emergency lights necessary to ensure that each worker can safely move about if the lights go out.

A number of commenters, including Puget Sound Shipbuilders Association, American Seafoods Company, Trident Seafoods Corporation, and Bath Iron Works, also questioned whether OSHA was requiring each worker to carry a flashlight or portable light at all times (Exs. 104.1; 105.1; 106.1; 107.1; 124). OSHA is not requiring that every worker have a portable light when working on a vessel. For instance, if a number of employees work in the same area on a vessel, one portable light may be sufficient to allow them to move around safely and exit the vessel. However, when an employee is working alone, especially in an isolated area or confined space, the employer must ensure that the worker has a portable or emergency light.

OSHA does not believe that employers will have difficulty complying with this provision. A number of stakeholders commented that they already provide portable or emergency lights to employees working on vessels so they can move safely if the lights go out (Exs. 99; 104.1; 107.1; 114.1; 116.2; 120.1).

Some stakeholders said that they have other procedures they follow when power outages occur on vessels, including having workers stay in place in the dark area until lights are reenergized or someone comes with portable or emergency lights (Exs. 119.1; 125; 168, pp. 242-43). These stakeholders said their “stand fast” policies were safe and adequate, and they should be allowed to continue those practices instead of following paragraph (c)(2) (Exs. 119.1; 125). OSHA does not consider such a practice, by itself, to be sufficient to ensure the safety of workers. For example, it could take hours for lights to be restored, making it difficult for workers to stand fast in dark areas. In addition, if lights have gone off because a situation requires workers to evacuate the vessel immediately, a stand-fast policy could endanger not only the workers waiting in dark areas on the vessel, but also any worker who comes with a light to help them exit the vessel.

The American Shipbuilding Association requested an exception to paragraph (c)(2) when natural sunlight provides sufficient illumination (Ex. 117.1). OSHA's intention was to require that employers provide portable or emergency lights to help workers exit dark areas if off-vessel lights go out. If natural sunlight is sufficient to allow a worker to move safely or exit the vessel, employers do not have to provide portable or emergency lights. The Agency has included language in paragraph (c)(2) clarifying this point.

Paragraph (d)—Explosion-Proof, Self-Contained Lights

Paragraph (d) specifies what type of portable lights employers must provide for use in areas that are not gas-free. The final rule, like proposed paragraph (c)(3), requires employers to ensure that only “explosion-proof, self-contained” portable lights or other electrical equipment approved by a nationally recognized testing laboratory (NRTL) are used. Existing provision § 1915.92(e) also sets forth the same requirements for lights in non-gas-free areas, but does so by referencing § 1915.13(b)(9). Both the proposal and the final rule added the pertinent language from § 1915.13(b)(9) to paragraph (d) thus eliminating the need for employers to reference another standard.

Several stakeholders requested OSHA to clarify that the provision applies to areas with the potential for a flammable atmosphere (Exs. 112.1; 116.2; 120.1; 121.1; 198, pp. 87, 162). OSHA agrees that it is important that employers clearly understand the types of atmospheres in which explosion-proof, self-contained portable and temporary lights are needed. Therefore, OSHA added language to paragraph (d) stating that explosion-proof, self-contained lights are required in any area where the atmosphere is determined to contain a concentration of flammable vapors that are at or above 10 percent of the lower explosive limit, as specified in part 1915, subparts B and C.

Section 1915.83—Utilities

Section 1915.83 of the final rule addresses requirements to protect workers from hazards associated with the unchecked release of steam or electricity, excessive wear and tear of steam hoses that could compromise their integrity, and burns and fires from unguarded heat lamps.

Paragraph (a)—Steam Supply System

Paragraph (a)(1) requires that employers ensure that the vessel's steam piping system, including hoses, is designed to safely handle the working pressure prior to supplying steam from an outside source to the vessel. Paragraph (a)(1) revises the term “responsible vessel's representative” in the existing provision (§ 1915.93(a)(1)) to “responsible vessel's representative, contractor, or any other person who is qualified by training, knowledge, or experience,” and requires this individual to determine whether the working pressure is safe.

The proposed rule would have required employers to ensure that the steam supply system has a safe working pressure, but did not carry forward the existing requirement to ascertain that information from a vessel's representative. Instead, the proposed rule would have given employers flexibility in determining the most effective way to ensure that the steam system's working pressure is safe before supplying steam from an outside source.

In the preamble to the proposal, OSHA explained that its intention in proposing to revise the requirement for a vessel's representative was to give employers greater flexibility in determining who they could use to ascertain whether the working pressure was safe—for example, a vessel's representative, contractor, or any other person qualified to make such a determination (72 FR 72452, 72462, Dec. 20, 2007). Trident Seafoods Corporation requested that OSHA make this point clear by adding the preamble language to the final regulatory text (Exs. 104.1; 107.1; 198, p. 73). OSHA agrees with the commenter that including the preamble language in the regulatory text will provide employers with clear and useful information about the various qualified persons whom they can use to comply with the requirement to ensure that the working pressure of the steam system is safe. OSHA also believes that requiring employers to ascertain from a qualified person whether the working pressure is safe will enhance worker safety because it builds regular safety checks into the process.

Atlantic Marine expressed concerns that paragraph (a)(1) would require employers to have written documentation that steam supply systems have safe working pressure and that other requirements in paragraph (a) have been met (Exs. 115.1; 118.1). OSHA does not intend to require employers to document in writing that a qualified person has determined that

the working pressure of the steam supply system is safe. Hence, the Agency has revised the language in paragraphs (a)(1) and (c)(3) to clarify that employers do not have to maintain written documentation.

Paragraph (a)(2) sets forth several requirements regarding relief valves and pressure gauges for a steam supply connected to the vessel's steam system. Several commenters asked OSHA to clarify in paragraph (a)(2) whether “each steam supply system” is limited to those systems connected to a vessel's steam piping system (Exs. 106.1; 115.1; 117.1; 118.1). OSHA intended that the requirements in paragraph (a)(2) apply only to outside steam supply systems connected to the vessel's steam piping system, and has added language to the final rule to clarify that intention.

Paragraph (a)(2) carries over a number of the requirements from the existing rule. Paragraph (a)(2)(i) requires that both the pressure gauge and relief valve be installed at the point where the steam pipe or hose from an outside steam source joins a vessel's steam piping system. Paragraph (a)(2)(ii) requires that the relief valves of outside steam systems be set to relieve excess steam, and be capable of relieving steam, at a pressure that does not exceed the safe working pressure of the vessel's steam piping system in its present condition. Paragraph (a)(2)(iii) requires that there be no means of inadvertently disconnecting the relief valve from the system that it protects. OSHA did not receive any comments on these provisions.

Paragraph (a)(2)(iv) specifies that pressure gauges and relief valves of steam supply systems be legible and located so that they are visible and readily accessible. This additional language will address SESAC's concerns that workers cannot read gauges and valves because they are too dirty or the print is too small (Docket SESAC 1992-2, Ex. 102X, pp. 94-96). OSHA believes that illegible pressure gauges can be hazardous. Employees working in or walking through the area need to be able to readily identify whether pressure is increasing to a hazardous level or continues to be at a safe level. Therefore, OSHA has retained the proposed requirement that pressure gauges be visible, accessible, and legible to allow employers and employees to determine accurately whether the working pressure of the steam supply system is safe.

Paragraph (a)(2)(v) requires that relief valves be positioned so they will not be likely to cause injury if steam is released. The proposed rule (paragraph (a)(5)) would have required that relief valves be “located or positioned” where workers would not be injured if steam were released.

One commenter suggested that the provision in proposed paragraph (a)(5) (paragraph (a)(2)(i) of the final rule), requiring pressure gauges and relief valves to be installed at the connection point between the outside steam hose and the vessel's steam piping system, would not work. Sound Testing, Inc., stated:

The requirement of having a relief valve installed right next to the pressure gauge might endanger the worker each time he or she approaches to check the pressure. If the pressure were too high, and the pressure relief valve ruptured just as the worker was reading the gauge, the superheated steam would burn his or her face instantly. The pressure gauge and the relief valve should be located at least 15 to 20 feet apart (Ex. 121.1).

OSHA believes it is the positioning of the relief valve that protects workers against injury if steam is released. For example, the relief valve should not be positioned so that, if an employee is walking by and the steam is released, the employee would be injured. Therefore, in the final rule OSHA requires the employer to position the relief valve so that it is not likely to cause injury if steam is released, regardless of where the valve is located.

Paragraph (b)—Steam Hoses

Paragraph (b)(1) requires that employers ensure that steam hoses and their fittings are used in accordance with manufacturers' specifications. The proposed rule (proposed paragraph (b)(1)), similar to the existing standard (§ 1915.93(a)(2)), would have required that the employer ensure that all steam hoses and fittings have a safety factor of at least five.

Northrop Grumman Shipbuilding—Newport News and Alaska Ship and Drydock opposed the proposed requirement and recommended that OSHA specify that steam hoses and their fittings be used in accordance with manufacturers' specifications (Exs. 116.1; 120.1). They pointed out that manufacturers use a safety factor of 4, not the 5 as OSHA proposed. Northrop Grumman added that there are issues in addition to safety factors that are important in ensuring that steam hoses and fittings are safe. For example, manufacturers also specify the temperatures, in addition to pressure ratings, that must not be exceeded (Exs. 116.1; 120.1).

Kim Hodne, of Alaska Ship and Drydock, testified that his company contacted vendors and found that steam hoses for feed lines with a safety factor of 5 do not exist, and that all of the hoses his facility uses are rated at 250 psi (Ex. 198, pp. 111-112).

In light of these comments, OSHA has modified final paragraph (b)(1) to require that steam hoses and their fittings be used in accordance with manufacturers' specifications. The change gives employers flexibility, and ensures that steam hoses meet all critical specifications necessary to protect employees from injury.

Paragraph (b)(2) requires that employers hang steam hoses tightly with short bights to prevent chafing and to reduce tension on the hose and its fittings. The proposed rule contained an identical requirement.

Commenters requested that OSHA define the term “short bight” (Exs. 129.1; 132.2). For example, the U.S. Navy recommended defining the term to mean “when a steam hose is hung in a bight or bights, the weight shall be received by appropriate lines that are spaced not to exceed eight feet maximum along the entire run” (Ex. 132.2). In response, OSHA defined “short bight” in the final rule (§ 1915.80(b)) as a loop made in a line or rope that is used to tie back or fasten hoses, piping, wiring, or fittings. OSHA did not adopt the Navy's recommendation that bights not be spaced further than eight feet apart along the entire run (Ex. 132.2). In this regard, OSHA believes that the performance-based requirement in paragraph (b) adequately ensures that bights will be placed so they “prevent chafing and reduce tension,” while giving employers flexibility in determining how best to space the bights so they prevent damage to hoses. Moreover, the Navy did not provide any information or explanation demonstrating that a maximum distance of eight feet between bights was appropriate and would adequately protect hoses on vessels.

Paragraph (b)(3) requires that steam hoses be protected from damage. The proposed rule contained an identical provision. OSHA believes that preventing damage to steam hoses is necessary to protect employees working or walking near steam hoses. In walking and work areas, steam hoses can be damaged when equipment and materials are moved or operated nearby. Employees could be seriously injured if a damaged hose suddenly releases steam. Stakeholders did not submit comments on the proposed provision.

Paragraph (b)(4) requires that employers shield steam hoses and temporary steam piping, including metal fittings and couplings (hereafter collectively referred to as “hoses”), if they pass through walkways or work

areas. OSHA believes that shielding hoses is necessary to protect workers from accidentally contacting hot elements and getting burned. The proposed rule (proposed § 1915.83(a)(4)) contained a similar requirement that would have updated the existing rule, which only required that hoses be shielded if they passed through “normal work areas,” but did not require shielding for hoses passing through other work areas or walkways.

Several commenters opposed the shielding provision and suggested various revisions (Exs. 106.1; 116.1; 117.1; 120.1). For instance, Bath Iron Works opposed the requirement because vessels contain thousands of feet of steam hoses and “installing shielding the entire run isn't practical” (Ex. 106.1). They also said shielding was “not a good practice” because it would compromise the physical integrity of the hoses, which “tend to become brittle when they are not allowed to breathe” (Ex. 106.1).

OSHA does not find that either of these arguments supports deleting or revising paragraph (b)(4) (proposed § 1915.83(a)(2)(iv)). First, although OSHA agrees that vessels contain thousands of feet of steam hoses, not all of them pass through walkways or work areas. In fact, Bath Iron Works said they try to re-route hoses so they will not be in walkways or work areas (Ex. 106.1). As such, only a portion of the hose, not the entire run, will need to be shielded. Second, the final rule gives employers flexibility in determining what types of shielding to use or install. The only requirement is that the shielding protects workers from contacting hot steam hoses. Employers are free to select shielding that protects against contact while still allowing the hoses to “breathe.”

American Shipbuilding Association (ASA) said OSHA should revise paragraph (b)(4) to allow shipyards to re-route hoses as an alternative to shielding them (Ex. 117.1). Paragraph (b)(4) does not prohibit employers from protecting workers from contact with hoses by re-routing the hoses and piping so they do not pass through walkways or work areas. The intention of paragraph (b)(4) is to prevent workers from getting burned by accidentally contacting hot steam hoses. Paragraph (b)(4) gives employers flexibility in determining how best to meet the requirement. If employers elect to re-route hoses so they do not pass through walkways or working areas, the requirement will be met, and workers will not come into contact with hot steam hoses. In this instance, the hoses will not pass through walkways or working areas, and employers will not be required to shield them. Accordingly, since ASA's recommended method of preventing contact with steam hoses is permitted under paragraph (b)(4), there is no need to revise the provision.

Paragraph (b)(4) also would allow employers to comply by re-routing walkways and work areas away from the hoses. Once again, if workers do not pass through or work in areas where steam hoses are present, paragraph (b)(4) would not require employers to shield those hoses. To ensure that employees are fully protected from accidental contact with hot steam hoses, employers could block or cordon off areas where unshielded steam hoses are present, post appropriate warning signs, or instruct workers that they are prohibited from entering the blocked-off areas.

Some commenters recommended that OSHA limit the requirement for shielding hoses to those areas where “contact is likely” (Exs. 106.1; 117.1; 168, pp. 299-300). The commenters do not contend, or explain why this recommendation would increase protection of workers. OSHA believes, to the contrary, that this recommendation may increase the risk of injury to workers from contact with hot elements. Limiting shielding to areas where contact with hoses is likely may leave workers unprotected if the employer does not shield hoses when changes in work or the workplace occur. For example, if a walkway needs to be used as a temporary work space and the walkway must be reconfigured or re-routed, workers could be at risk of injury if the hoses and piping in the temporary walkway are not shielded. In addition, determining whether and when “contact is likely” adds complexity and ambiguity to the provision. By contrast, the requirement to shield hoses that pass through walkways or work areas is clear and unambiguous. In conclusion, OSHA believes the requirement in paragraph (b)(4) is necessary because the potential for worker injury from contact with hot steam hoses is great, especially in light of the number of tight and confined areas on vessels (Ex. 116.1).

Finally, some stakeholders recommended that OSHA also require “metal fittings and couplings” on steam hoses to be shielded (Exs. 106.1; 117.1; 168, pp. 300-301). ASA said that metal couplings are “a much more serious burn hazard” than steam hoses or piping (Ex. 117.1). Bath Iron Works added that “the temperature on a coupling is somewhere between 210 to 230 degrees, which is very, very hot versus the outer shielding [of hoses], which * * * is roughly 120 to 150 degrees” (Ex. 168, p. 300). As mentioned, Bath Iron Works tries to re-route steam hoses to prevent workers from getting burned by metal parts (Ex. 106.1). OSHA intended that paragraph (b)(4) carry over the existing shielding requirement for steam hoses and piping systems, which OSHA has interpreted to include the fittings and coupling for those systems. However, to clarify paragraph (b)(4), OSHA added “metal fittings and couplings” to those items that employers must shield if they pass through walking or working areas.

Paragraph (c)—Electric Shore Power

Paragraph (c) addresses precautions employers must take prior to energizing a vessel's circuits when electricity is supplied from a landside power source. The required actions will protect employees from the hazards of remote power carried by electric cables or wires onto a vessel, which differ from other electrical hazards such as the hazards associated with hand-held powered tools.

Paragraph (c)(1) requires employers to ensure that vessels are grounded prior to energizing any of the vessel's circuits. The proposed and existing rules would have required that vessels be grounded only when in dry dock, which is a standard practice in shipyards. However, OSHA believes that a vessel should be grounded whether or not it is in dry dock, such as when the vessel is on a marine railway or pierside. OSHA did not receive any comments on the proposed rule. The language in the final rule simply clarifies that a vessel should always be grounded prior to energizing its circuits.

Paragraph (c)(2) requires that, prior to energizing any vessel circuit, employers equip the circuit to be energized with over-current protection that does not exceed the rated current-carrying capacity of the conductors. Proposed § 1915.83(c)(3) and existing § 1915.93(b)(1)(iii) contain the same requirement, which also is standard practice in shipyards. OSHA notes that the existing rule requires that the over-current protection not exceed the rated current-carrying capacity of the “cord.” In the proposed and final rules, OSHA changed “cord” to “conductors” to make the provision more inclusive and protective. Conductors include connections in addition to cords. OSHA did not receive any comments on the proposed provision.

Paragraph (c)(3) requires employers to ensure that vessel circuits are in a safe condition prior to energizing any circuit with landside power. Employers must obtain a determination that vessel circuits are in a safe condition from a

responsible vessel's representative, a contractor, or any other person qualified by training, knowledge, or experience to make that determination. Paragraph (c)(3) expands the flexibility of the existing rule, which requires that employers ascertain that circuits are in safe condition from “responsible vessel's representatives” (existing § 1915.93(b)(1)(ii)).

To make the requirement more flexible, OSHA proposed to eliminate the existing requirement in § 1915.93(b)(1)(ii) that employers consult with a person qualified to determine that vessel circuits are in safe condition (proposed § 1915.83(c)(3)). In the preamble to the proposed rule, OSHA explained that eliminating the existing requirement to ascertain the information from vessel's representatives would allow employers to obtain the information from other persons who were qualified to make a determination about the condition of vessel circuits (72 FR 72452, 72462, Dec. 20, 2007). Commenters requested that OSHA make its purpose clear in the text of the final rule (Exs. 104.1; 107.1); therefore, OSHA included the preamble language in the final rule.

Several commenters, including Lake Union Drydock Company, Puget Sound Shipbuilders Association, and Dakota Creek Industries, said that the proposed requirement was too vague and appeared to require that all junction boxes and panels on each vessel be covered before providing shore power (Exs. 101.1; 124; 126; 128; 130.1). OSHA believes that the proposed and final requirement is clear—only circuits “to be energized” need to be checked to determine whether they are in a safe condition. Therefore, if shore power will be supplied to only a portion of the vessel, the final rule requires employers to ascertain that only the circuits affected by the energization are in a safe condition. A good safety practice would be to check the wires and connectors on the vessel to ensure that they are not damaged before providing landside power to the vessel. Since landside power has high amperage, energizing wires and connectors that are damaged could cause an explosion or electric arc that could electrocute or burn workers on the vessel.

Paragraph (d)—Heat lamps

Paragraph (d), as did the proposed rule, requires that employers ensure that heat lamps, including the face, be equipped with surround-type guards to prevent contact with the lamp and bulb. Heat lamps present risks of burns and fire if employees or combustible materials come into contact with the hot elements and surfaces. Fires are a hazard in shipyard employment, especially onboard vessels. Accordingly, paragraph (d), as did the proposed rule, expanded the existing rule in two ways. First, paragraph (d) applies to all heat lamps used in shipyard employment. The existing rule only applied to “infrared electrical heat lamps” (§ 1915.93(c)) even though other types of heat lamps also are used in shipyard employment. The revision ensures that these contact hazards are addressed so employees are fully protected from being burned by accidental contact, and the risk of igniting combustible materials is reduced.

Second, paragraph (d) requires that the entire heat lamp, including the face, be guarded to prevent contact with hot surfaces of the heat lamp. The existing rule did not require that the face be guarded. The face of heat lamps, as with other parts of heat lamps, can become extremely hot. Contacting the lamp face can burn workers and ignite combustible materials. Guarding the face of the lamp will control these hazards. OSHA did not receive any comments on the proposed requirement, including the language expanding the existing provision to make it more protective.

Section 1915.84—Working Alone

Section § 1915.84 addresses the hazards associated with working alone, such as in isolated or confined spaces. As discussed in the preamble of the proposed rule, between 1987-2002 there were 13 fatalities reported in the OSHA IMIS system involving employees working alone and not discovered until after they had died from their injuries (72 FR 72452, 72463, Dec. 20, 2007). The purpose of § 1915.84 is to ensure that employers account for employees working alone, thereby enhancing the safety of these employees. However, if an injury occurs, OSHA believes the requirements in § 1915.84 will reduce the severity of the injury and increase survivability because the requirements will ensure rapid detection and treatment of the injury.

OSHA revised the scope of the final rule to focus on the hazards associated with an employee working alone in an area where others cannot see or hear if the employee is safe or needs assistance. The proposed and existing rules (existing § 1915.94) cover: (1) Employees working in confined spaces, and (2) employees working alone in isolated spaces.

A number of commenters said the rule should only cover employees working alone, while others said the rule should not apply to confined spaces (Exs. 106.1; 115.1; 117.1; 118.1; 132.2; 198, p. 73). With regard to confined spaces, some commenters said the rule was not necessary because they rarely assigned employees to work alone in confined spaces (Exs. 115.1; 118.1; p. 168, pp. 81-84). Other commenters said they use a “buddy system” to ensure that workers are constantly monitored and provided with immediate assistance if an injury or other problem occurs. The U.S. Navy also said the confined space requirements in § 1915.84 were not needed because 29 CFR 1915, subpart B, Confined and Enclosed Spaces and Other Dangerous Atmospheres, adequately addresses the same hazards (Ex. 132.2).

Electric Boat Corporation added that the requirements in § 1915.84 pertaining to confined spaces should be moved to subpart B (Ex. 108.2). They stated, “This confined space requirement [in § 1915.84] is often overlooked in its current location and moving it to subpart B would consolidate the maritime confined space regulations in one area” (Ex. 108.2). On the other hand, Bath Iron Works said that the requirements in § 1915.84 “have been known to reside in the General Working Conditions section,” and, therefore, there was no need to address them in subpart B (Ex. 106.1).

Subpart B addresses work conducted in dangerous atmospheres and in spaces that are confined and enclosed, regardless of the number of employees entering and conducting work in those areas (§ 1915.11(a)). Its primary purpose is to protect workers from atmospheric hazards associated with confined spaces and dangerous atmospheres, including exposure to atmospheric hazards such as toxic or oxygen-deficient atmospheres. Subpart B is narrower in scope and more specific regarding the hazards it addresses than § 1915.84. By contrast, the confined space hazards that § 1915.84 addressed in the proposal, and now in this final, are broader than the hazards addressed by subpart B. Section 1915.84 covers the hazards of employees working alone in confined spaces, regardless of whether atmospheric hazards are present. To ensure that an employee working alone is protected against all of the hazards associated with confined spaces, OSHA believes it is necessary to retain coverage of the confined spaces provisions in § 1915.84.

That said, OSHA agrees with stakeholders that the primary focus of § 1915.84 is to address the hazards of employees becoming injured or ill working alone in areas where others cannot see or hear them, such as in a confined space or isolated location.

Because of this danger, some stakeholders said they use a “buddy system” for work in confined spaces, which involves assigning two workers for the confined space task—one employee who works in the confined space and the another worker who remains outside the confined space and maintains constant communication with the employee inside the space. Using buddy systems, which some stakeholders refer to as “tank watchers” or “hole watchers,” serves to emphasize the need to monitor an employee who is in a confined or isolated space and is working alone as specified by § 1915.84 (Exs. 108.1; 202.1). Accordingly, OSHA notes that the buddy system described above is an effective and reliable method employers can use to meet the requirements of § 1915.84. OSHA does not believe employers in shipyard employment should have trouble complying with this requirement because many already use this method to monitor employees working alone in confined or isolated spaces (Exs. 108.1; 202.1).

Northrop Grumman Shipbuilding—Newport News said the focus of § 1915.84 should be on work in isolated or confined spaces on vessels and should not apply to landside facilities and office areas. They added that working in isolated and confined spaces at landside locations “do[es] not present the same risk as shipboard work” (Ex. 116.1). OSHA's existing rule at § 1915.94, which has been in place since 1972, applies to isolated and confined spaces both on vessels and landside. OSHA believes it is necessary for the final rule to apply wherever the hazards of working alone in isolated or confined spaces may occur. OSHA's IMIS data includes reports of many fatalities involving employees working alone in isolated landside locations (Ex. 69). Employees working alone in isolated work locations, whether they are on the end of a distant pier or working in the hold of a vessel, may not be able to summon help if they are injured. In both cases, these workers are at risk of harm if they are not accounted for during, and at the end of the workshift or job. Therefore, the final rule continues to apply to employees working alone, including working in isolated or confined spaces landside or on vessels.

A number of commenters said the rule was not clear about what constitutes an “isolated location,” and asked OSHA to define and give examples of the term in the final rule (Exs. 101.1; 105.2; 114.1; 115.1; 118.1; 124; 126; 128; 130.1; 198, p. 73). To address stakeholders' concerns, in § 1915.80(b) OSHA defined “isolated location” as “an area in which employees are working alone or with little assistance from others due to the type, time, or location of their work. Such locations include remote locations or other work areas where employees are not in close proximity to others.” The following examples describe work that OSHA considers to be in isolated locations: A lone oiler checking a forward bilge on a vessel; an employee working alone “below deck” or “in the bowels of the ship”; and an employee working alone in a side or ballast tank (Exs. 168, pp. 102-103).

Section § 1915.84 retains the language in the existing rule specifying that the provision does not apply to § 1915.51(c)(3). Section 1915.51(c)(3), which addresses welding, cutting, or heating in a confined space when sufficient ventilation cannot be maintained without blocking its means of access, requires that an employee be stationed outside the confined space to maintain communication with the employee inside the confined space to provide aid in an emergency. OSHA believes that the serious hazards that such working conditions present warrant the specific requirements in § 1915.51(c)(3). OSHA did not receive any comments on the exception.

Paragraph (a)

Paragraph (a) requires that employers account for each employee working alone (1) at regular intervals throughout the workshift, and (2) at the end of the job assignment or at the end of the workshift, whichever occurs first. The proposed rule would have required that employees be “checked frequently.” In the final rule, OSHA replaced this term with the term “account for” because OSHA believes that employers may misinterpret checking employees frequently as limiting them only to a visual check. In this regard, OSHA added new language to the final rule that allows employers to account for each employee working alone either by a visual check or through verbal communication. Therefore, OSHA used the term “account for” in this provision of the final rule, which it believes will avoid misinterpretation by more accurately describing the additional means available to employers for monitoring these employees than the term “checked frequently” does.

Paragraph (a)(1) requires that employers account for employees working alone, such as in a confined space or at an isolated location, throughout the workshift at “regular intervals appropriate to the job assignment” to ensure the employees' safety and health. Proposed paragraph (a) would have required that employers check on employees “frequently during each workshift.”

A number of stakeholders stressed the importance of checking throughout the workshift on employees working alone (Exs. 114.1; 115.1; 118.1; 125). Other commenters said the requirement to “frequently” monitor employees was too subjective (Exs. 101.1; 124; 126; 128; 198, pp. 73, 99-100; 199, pp. 137-38). Sound Testing, Inc., commented:

How often is `frequently'? How often should we check during each work shift? Is the inspection of the confined or isolated spaces performed each work shift or each day by the Shipyard Competent Person `frequently' enough? (Ex. 121.1).

Some stakeholders said the requirement to frequently check employees posed foreseeable enforcement difficulties stating: “[H]ow do we convince an enforcement officer that we are conducting checks frequently enough?” (Ex. 101.1; 124; 126; 128; 130.1), and “We'll be required to convince an OSHA field inspector that our frequently is as good as or better than his or her concept of frequently?” (Ex. 199, pp. 137-38).

Stakeholders also said the frequency with which they check on employees working alone depends on various factors, including whether the employee is working in a confined space or isolated location, the type of isolated or confined space in which the employee is working, and the type of work the employee is performing (Exs. 168, pp. 97-103, 303-306; 198, pp. 19-20). For example, Roy Martin, of the Shipbuilders Council of America and Manitowoc Marine Group, testified:

[I]f we are talking about general cargo holds and things of that nature, they are checking on it at least on an hourly basis. If they are in an area which is isolated, such as some of these older vessels, in their side tanks and what have you, they will check on them more frequently, within a 30-minute time frame (Ex. 168, pp. 97-98).

When employees work alone in confined spaces, Bath Iron Works said they may check on the employee as often as every 15 minutes (Ex. 168, p. 305). John Killingworth of Dakota Creek Industries added, “In our case we can pretty much check on employees four times a day, but in confined spaces * * * the need is to be very diligent and perhaps more frequently would be adequate” (Ex. 198, p. 100).

Stakeholders' comments indicate that the proposed rule's approach to the frequency of accounting for employees that are working alone may not be the most protective approach. The stakeholders' comments and discussion of their practices convince OSHA that

requiring employers to account for employees at intervals that are appropriate for the job being performed provides better protection for employees. It ensures that employers will consider all relevant factors in determining what frequency is appropriate for specific jobs requiring employees to work alone, such as in isolated or confined spaces. Accordingly, OSHA revised the final rule so it requires employers to make an individualized, job-specific determination as to what intervals or frequency of monitoring will be adequate to ensure the safety and health of the employee working alone. The factors discussed above will assist employers in making this determination.

OSHA believes that employers will not have difficulty complying with the final rule. The existing rule already requires employers to conduct frequent checks on employees working in confined spaces and alone in isolated locations. Moreover, the record indicates that a number of employers in shipyard employment already are performing job-specific assessments for determining monitoring frequency (Exs. 114.1; 115.1; 118.1; 125; 168, pp. 97-98, 305; 198, p. 100).

Paragraph (a)(2) requires that employers account for each employee working alone at the end of a job assignment or at the end of the workshift, whichever comes first. The proposed rule would have required that employers account for each employee at the end of the workshift (proposed § 1915.84(b)).

Several stakeholders commented that OSHA should revise § 1915.84 to require employers to account for employees at the end of an assignment (Exs. 114.1; 115.1; 118.1; 125; 168, p. 74). For example, Shipbuilders Council of America said:

Given the nature of this work, accounting for employees is an extremely important procedure. * * * [W]ork in confined space sometimes does not last the span of an entire workshift. * * * Workers should be accounted for when they leave a confined space, which may occur well before the end of a designated shift (Ex. 114.1).

Atlantic Marine Florida said, “[I]f employees are working alone, they are assigned a supervisor, even if he/she is from another craft, to report to when they complete their task and are no longer working alone” (Ex. 115.1).

Stakeholders' comments clearly demonstrate the safety and health benefit of requiring employers to account for employees at the end of any job assignment that involves working alone. This requirement provides employers with timely information that employees working alone are safe, as well as timely warning that they may be injured and need assistance. Because end-of-assignment checks are common practice in shipyard employment, OSHA believes that employers will comply readily with this requirement.

When job tasks extend beyond a workshift, paragraph (a)(2) requires employers to check on employees who are working alone at the end of such a workshift. In the preamble to the proposed rule, OSHA explained that this provision would ensure that employers ascertain that each employee working alone has returned safely. If this is not the case the employer must take immediate action to locate the missing employee (72 FR 72452, 72463, Dec. 20, 2007). Review of shipyard employment fatality data indicates that some employees working alone were not discovered until long after their shifts ended and the time for effective medical intervention had passed.

Id.

Requiring an end-of-workshift check if the job assignment has not been completed will ensure that employees who are assigned to work alone will not be unintentionally deserted at the end of their workshift if they are injured and need help.

Paragraph (b)

Final paragraph (b) adds the requirement that the employer account for each employee by sight or verbal communication. Neither the proposal nor the existing rule has such a requirement. Through comments submitted and testimony heard, the Agency received information that stressed the importance of communication methods used in accounting for employees that are working alone, such as in a confined space or an isolated location. Electric Boat stated that “a verbal response from a worker inside a confined space to a person checking on them should be an acceptable method to verify an employee's safety” (Ex. 108.2).

In proposed § 1915.84, OSHA requested information pertaining to specific methods for checking on employees who are working alone. The regulated community responded with many examples (Exs. 106.1; 108.2; 114.1; 115.1; 116.2; 117.1; 118.1; 119.1; 120.1; 129.1; 168, pp. 101-103, 234-235, 304-305; 198, pp. 19-20, 50-51, 101-102, 114-115; 202.1). Similar to other commenters, Electric Boat explained that at one of their facilities, “tank monitors in combination with a radio type system is used to monitor tank entrants” (Ex. 108.2). Both the tank monitor and the entrant are issued hand-held radios, which the entrant uses to not only notify the monitor that they entered the space, but to respond to frequent checks at twenty-minute intervals. Similar to Electric Boat, Atlantic Marine uses verbal radio communication to verify the safety of its employees, or has employees physically climb into the space to observe employees who are working alone (Exs. 115.1; 118.1). Manitowoc Marine Group explained that they use a combination of verbal checks through radio communication, as well as visual checks during muster held at the end of each job assignment or workshift (Ex. 168, pp. 98-100).

Alternative methods of communication that have low reliability, such as noise from power tools, whistles, or tapping on tank walls, bulkheads, or decks, would not comply with paragraph (b). To illustrate, if a supervisor accounting for an employee in a confined space hears power-tool noise coming from the confined space, that noise cannot be relied on to verify that the employee is safe. The tool noise may indicate that the employee is safe or it might mean that the employee is unconscious or injured, and the power tool is still running. Hence, OSHA has determined that, when employers use verbal communication to check on employees working alone, communication must include both parties speaking.

In the proposed rule, OSHA requested comment on whether the Agency should add a provision to § 1915.84 requiring employees to establish a system of leaving a picture identification or other signal (for example, a flag) outside the entrance of a confined space, to indicate when an employee enters a confined space alone to perform work (72 FR 72463-72464, Dec. 20, 2007). A few stakeholders have such a system or support having one (Exs. 118.1; 129.1; 198, pp. 100-101). However, the majority of stakeholders who commented on this issue did not support adding that requirement to the final rule (Exs. 106.1; 114.1; 115.1; 116.1; 117.1; 120.1; 125; 132.2; 198, p. 101).

Some stakeholders said a photo identification or signal system would not be effective (Exs. 106.1; 108.1; 132.2). Electric Boat said that “badges or picture identification left at the entrance [of a confined space] may not be the best method due to their small size” (Ex. 108.1). American Shipbuilding Association agreed, saying that when “a single employee has to enter an isolated or confined space, there is usually no one else there to notice a flag, picture, or signal anyway, thus negating the

purpose of such a requirement” (Ex. 117.1). The Navy added that it believed frequent checks and proper supervision are an adequate and a more practical solution than a picture identification system (Ex. 132.2). John Killingsworth, of Dakota Creek Industries, raised a similar objection stating: “Personally, as [a Shipyard Competent Person], I'm going to tanks alone. It may be 20 [confined] spaces on a vessel that I visit every single day. I'm not going to hang a tag at every hatch as I go in and come out. That would be impractical” (Ex. 196, pp. 100-101).

Northrop Grumman Shipbuilding—Newport News said it evaluated whether to implement such a system but determined it was not desirable, noting:

Many spaces have multiple means of access and it is not feasible or desirable to require an employee to use the same opening for access and egress. In particular, in the event of an emergency, employees are taught to use the closest means of safe egress. If this is not the same access as their “identifiable flag”, an emergency responder may falsely believe someone is in the space and be placed in danger looking for the individual. We have found the combination of frequent checks and end of shift checks to be adequate (Exs. 116.1; 120.1).

After reviewing the record as a whole, OSHA decided not to require employers to establish a picture or signal identification system at entrances of confined and isolated spaces where employees are working alone. Rather, the Agency concluded that employers must account for each employee by either sight or verbal communication to ensure their safety.

Finally, OSHA reminds employers to ensure that, when employees discover a non-responsive employee in a confined space or isolated location, no one enters the area without taking appropriate precautions in accordance with 29 CFR part 1915, subpart B and other applicable existing OSHA standards. Paragraph (b) of the final rule requires that employers must account for each employee by sight or verbal communication, but safe entry practices set forth in other OSHA standards, such as 29 CFR 1915, subpart B, still apply when employers face an emergency rescue situation.

Section 1915.85—Vessel Radar and Communication Systems

Section 1915.85 specifies requirements to protect employees working on or near vessel radar and communication systems. If precautions are not taken, these workers may be exposed to radiation (for example, radio frequency radiation). They also may be electrocuted or struck by the antennas or other components if the system activates, energizes, or releases hazardous energy.

The final rule, like the proposed provisions, expands the scope of the existing rule, which solely addressed radiation hazards, to cover both radiation and other energy hazards. OSHA believes this change is necessary to ensure that employees are protected from other serious hazards associated with operating and servicing radar and communication systems. For example, employees working aloft on a system's antenna could be injured or killed if the system activates and the antenna moves, striking an employee and causing the employee to fall.

The proposed rule referred to radars and radio transmitters. For example, proposed paragraph (a) requires the employer to “secure each radar and radio transmitter so it is incapable of energizing or emitting radiation before any employee begins to work on it.” Some stakeholders commented that the terms “radar” and “radio transmitter” were not clearly explained (Exs. 101.1; 121.1; 124; 126; 128; 130.1). For example, Philip Dovinh of Sound Testing, Inc. said:

Are the little two-way handheld radios, CB radios, or heavy duty radars and sonar equipment capable of transmitting and receiving communication signals, such as those installed on large [fish processing vessels], container vessels, Navy and [U.S. Coast Guard] vessels all applicable under the requirements of this section? (Ex. 121.1).

American Seafoods Company and Northrop Grumman—Newport News were unclear whether proposed § 1915.85 also applied to hazards associated with sonar (Exs. 105.1; 116.2). Northrop Grumman recommended that § 1915.85 should not apply to sonar because sonar and radar are different technologies: “Sonar does not pose a radiation hazard. Sonar repair and testing may involve electrical or acoustical hazards” (Ex. 116.2; 120.1).

In response to stakeholder comments, OSHA has revised the language of § 1915.85 to more clearly indicate that this section addresses the radiation, electrical, and struck-by hazards associated with operating and servicing radar and communication systems. It is these system components, particularly antennas and transmitters, that emit radiation, may electrocute employees, or may move and strike employees working on or near them. However, if these components cannot emit radiation at levels that could injure workers in the vicinity, or cannot electrocute or strike workers if the system suddenly activates, the requirements of § 1915.85 would not apply. In addition, this section does not apply to sonar. OSHA agrees that the hazards associated with sonar are not the same as hazards associated with radar and communication systems.

Although the scope of § 1915.85 covers shipbreaking operations, OSHA notes that it is unlikely that radar and communication systems would be operational when workers perform shipbreaking operations. If the hazards associated with radar and communication systems are not present in these operations, then § 1915.85 does not apply. However, to the extent that radiation hazards or hazardous energy are present in shipbreaking operations, the employer must protect workers from the risk of injury.

Paragraph (a)

Paragraph (a) requires that employers service vessel radar and communication systems in accordance with the requirements of 29 CFR 1915.89, the lockout/tags-plus standard for shipyard employment. Under final § 1915.89, employers must implement a lockout/tags-plus program for all servicing operations when machinery, equipment, or systems could activate. Such a program requires the use of lockout/tagout applications; implementation of procedures for the safe servicing of machinery, equipment, and systems; and employer training of employees. In addition, final § 1915.89(a)(3) specifies that, when other standards in part 1915, and applicable standards in part 1910, require the use of a lock or tag to protect workers from the risk of equipment activation or energization, employers are required to supplement such protections with the procedural and training requirements in final § 1915.89.

The proposed rule contained the same requirement (proposed § 1915.85(b)). The existing rule, on the other hand, only required that employers put tags on radar and communication-system components prior to starting work. OSHA believes that requiring compliance with the procedural and training requirements of final § 1915.89 will provide greater protection for workers than the existing rule. It will require employers to use energy-isolating measures that provide a physical barrier to the hazards of equipment activation and also will ensure that all employees involved in the servicing operations follow consistent and uniform procedures in all servicing operations. As OSHA said in the preamble to the proposed rule:

[M]ore detailed [control of hazardous energy] procedures are needed to ensure that employees are fully protected from the movement or start up of equipment and the

release of hazardous energy. Tagging the equipment without complying with the rest of the proposed [control of hazardous energy] program and procedures does not ensure that employees will be fully protected, especially those working in multi-employer worksites or in situations where ship's crew are present (72 FR 72452, 72464, Dec. 20, 2007).

OSHA simplified the language in paragraph (a) by using the term “servicing” in place of the proposed language (for example, “servicing, repairing, or testing”). OSHA made the same revision in final § 1915.89(a). As discussed in the summary and explanation of final § 1915.80(b), OSHA defines “servicing” to include a variety of activities including testing and repairing machinery, equipment, or systems, that may expose employees to the risk of injury from the startup, energization, or the release of hazardous energy. OSHA believes that using consistent language in § 1915.85 and § 1915.89 will make the provisions easier for employers to understand and facil

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