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

Federal RegisterNov 18, 2016

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DEPARTMENT OF LABOR

Occupational Safety and Health Administration

29 CFR Part 1910

[Docket No. OSHA-2007-0072]

RIN 1218-AB80

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

AGENCY:

Occupational Safety and Health Administration (OSHA), Labor.

ACTION:

Final rule.

SUMMARY:

OSHA is revising and updating its general industry standards on walking-working surfaces to prevent and reduce workplace slips, trips, and falls, as well as other injuries and fatalities associated with walking-working surface hazards. The final rule includes revised and new provisions addressing, for example, fixed ladders; rope descent systems; fall protection systems and criteria, including personal fall protection systems; and training on fall hazards and fall protection systems. In addition, the final rule adds requirements on the design, performance, and use of personal fall protection systems.

The final rule increases consistency between the general industry and construction standards, which will make compliance easier for employers who conduct operations in both industry sectors. Similarly, the final rule updates requirements to reflect advances in technology and to make them consistent with more recent OSHA standards and national consensus standards. OSHA has also reorganized the requirements and incorporated plain language in order to make the final rule easier to understand and follow. The final rule also uses performance-based language whenever possible to give employers greater compliance flexibility.

DATES:

Effective date:

This final rule becomes effective on January 17, 2017. Some requirements in the final rule have compliance dates after the effective date. For further information on those compliance dates, see Section XI of the

SUPPLEMENTARY INFORMATION

section. In addition, this final rule contains information collections subject to the Office of Management and Budget (OMB) approval under the Paperwork Reduction Act, and the Department is submitting requests to OMB to obtain that approval. The information collections will not take effect until the date OMB approves the information collection request or the date the requirement would take effect as explained elsewhere in this document. The Department will publish a document in the

Federal Register

to announce OMB's disposition of the information collection requests.

ADDRESSES:

In accordance with 28 U.S.C. 2112(a)(2), OSHA designates Ms. Ann Rosenthal, Associate Solicitor of Labor for Occupational Safety and Health, Office of the Solicitor, U.S. Department of Labor, Room S-4004, 200 Constitution Avenue NW., Washington, DC 20210, to receive petitions for review of the final rule.

FOR FURTHER INFORMATION CONTACT:

Press inquiries:

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

meilinger.francis2@dol.gov

General information and technical inquiries:

Mr. Mark Hagemann, Director, Office of Safety Systems, Directorate of Standards and Guidance, OSHA, U.S. Department of Labor, Room N-3609, 200 Constitution Avenue NW., Washington, DC 20210; telephone (202) 693-2255, email

hagemann.mark@dol.gov

Copies of this

Federal Register

document:

Copies of this

Federal Register

document are available at

http://www.regulations.gov

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

http://www.osha.gov

SUPPLEMENTARY INFORMATION:

Table of Contents

The following table of contents identifies the major sections of the preamble to the final rule:

I. Background

A. References and Exhibits

B. Introduction and Basis for Agency Action

C. Summary of the Final Economic Analysis

D. Events Leading to the Final Rule

II. Analysis of Risk

A. Introduction

B. Nature of the Risk

C. Fatality and Injury Data

III. Pertinent Legal Authority

IV. Summary and Explanation of the Final Rule

A. Final Subpart D

B. Final § 1910.140

C. Other Revisions to 29 CFR Part 1910

V. Final Economic and Final Regulatory Flexibility Screening Analysis

A. Introduction

B. Assessing the Need for Regulation

C. Profile of Affected Industries, Firms, and Workers

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

E. Technological Feasibility

F. Costs of Compliance

G. Economic Feasibility and Regulatory Flexibility Screening Analysis

H. Regulatory Flexibility Screening Analysis

I. Sensitivity Analyses

J. References

VI. Federalism

VII. State-Plan Requirements

VIII. Unfunded Mandates Reform Act

IX. Consultation and Coordination With Indian Tribal Governments

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

XI. Dates

I. Background

A. References and Exhibits

This

Federal Register

document references materials in Docket No. OSHA-2007-0072, which is the docket for this rulemaking. OSHA also references documents in the following dockets, which the Agency incorporates by reference into this rulemaking:

• 1990 proposed rule on Walking and Working Surfaces (29 CFR 1910, subpart D)—Docket No. OSHA-S041-2006-0666 (formerly Docket No. S-041);

• 1990 proposed rule on Personal Protective Equipment—Fall Protection—Docket No. OSHA-S057-2006-0680 (formerly Docket No. S-057);

• 2003 reopening of the rulemaking record—Docket No. OSHA-S029-2006-0662 (formerly Docket No. S-029);

• 1994 final rule on Fall Protection in the Construction Industry—Docket No. OSHA-S206-2006-0699 (formerly Docket No. S-206);

• 1983 and 1985 proposed rules on Powered Platforms for Building Maintenance—Docket Nos. OSHA-S700-2006-0722 and OSHA-S700A-2006-0723 (formerly Dockets Nos. S-700 and S-700A, respectively); and

• 2014 final rule on Electric Power Generation, Transmission, and Distribution; Electrical Protective Equipment—Docket No. OSHA-S215-2006-0063 (Formerly Docket No. S-215).

All of these dockets are available for viewing at

http://www.regulations.gov

, the Federal eRulemaking Portal.

Citations to documents in Docket No. OSHA-2007-0072:

This document references exhibits in this rulemaking record, Docket No. OSHA-2007-0072, as “Ex.,” followed by the last sequence

of numbers in the document identification (ID) number. For example, “Ex. 44” is a reference to document ID number OSHA-2007-0072-0044 in this rulemaking docket.

Citations to the transcripts of the rulemaking hearing:

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

Citations to other dockets:

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

Docket:

The exhibits in this rulemaking docket (Docket No. OSHA-2007-0072), as well as the dockets OSHA incorporated by reference in this rulemaking, are available to read and download by searching the docket number or document ID number at

http://www.regulations.gov

. Each docket index lists all documents and exhibits in that docket, including public comments, supporting materials, hearing transcripts, and other documents. However, some documents (

e.g.,

copyrighted material) in those dockets are not available to read or download from that website. All documents are available for inspection and copying at the OSHA Docket Office, Room N-2625, U.S. Department of Labor, 200 Constitution Avenue NW., Washington, DC 20210; telephone number (202) 693-2350 (OSHA TTY (887) 889-5627).

B. Introduction and Basis for Agency Action

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

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

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

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

The final rule also increases consistency by incorporating provisions from other standards OSHA adopted more recently, including Powered Platforms for Building Maintenance (29 CFR 1910.66) and Scaffolds, Ladders and Other Working Surfaces in Shipyard Employment (29 CFR part 1915, subpart E).

In particular, § 1910.140 drew personal fall arrest system requirements from Appendix C (Mandatory) of the Powered Platform standard (§ 1910.66). The experience OSHA gained on that standard shows that those requirements are effective in protecting workers from fall hazards.

Where necessary, the final rule also revises provisions in some current general industry standards (

e.g.,

29 CFR part 1910, subparts F, N, and R) to ensure that they are consistent with the final rule (See Section IV(C) below).

OSHA also drew many provisions in the final rule from national consensus standards, including ANSI/ASSE A1264.1-2007, Safety Requirements for Workplace Walking/Working Surfaces and Their Access; Workplace, Floor, Wall and Roof Openings; Stairs and Guardrail Systems; ANSI/ASSE Z359.1-2007, Safety Requirements for Personal Fall Arrest Systems, Subsystems and Components; and ANSI/IWCA I-14.1-2001, Window Cleaning Safety Standard. Many stakeholders recommended that OSHA incorporate the requirements in those standards into the final rule. OSHA agrees with stakeholders that national consensus standards represent industry best practices and reflect advancements in technology, methods, and practices developed in the years since the Agency adopted the existing rule.

OSHA also has made the final rule easier to understand and follow by reorganizing and consolidating provisions, using plain language, and adding informational tables, illustrations, and appendices. For example, the final rule adds two non-mandatory appendices to final § 1910.140 that address planning for, selecting, using, and inspecting personal fall protection systems (appendix C) and test methods and procedures for personal fall arrest work positioning systems (appendix D).

OSHA's efforts to revise and update the existing walking-working surfaces standards have been ongoing since 1973. Over that time, OSHA has gathered and analyzed a large body of data and information on walking-working surface hazards and methods to prevent and eliminate them. After careful examination and analysis of the rulemaking record as a whole, OSHA has determined that the requirements in this final rule will significantly reduce

the number of worker deaths and injuries that occur each year due to these hazards, particularly workplace slip, trip, and fall fatalities and injuries. OSHA estimates that final standard rule will prevent 29 fatalities and 5,842 injuries annually (See Sections II and V).

OSHA believes that many employers already are in compliance with many provisions in the final rule; therefore, they should not have significant problems implementing it. OSHA also has included measures to make implementation of the final rule easier for employers. The final rule provides extended compliance dates for implementing some requirements and applies other requirements only prospectively. For example, the final rule gives employers as much as 20 years to equip fixed ladders with personal fall arrest or ladder safety systems. Moreover, since the final rule incorporates requirements from national consensus standards, most equipment manufacturers already provide equipment and systems that meet the requirements of the final rule.

C. Summary of the Final Economic Analysis

The OSH Act requires OSHA to make certain findings with respect to standards. One of these findings, specified by Section 3(8) of the OSH Act, requires an OSHA standard to address a significant risk and to reduce this risk significantly. (See

Industrial Union Dep't

American Petroleum Institute,

448 U.S. 607 (1980).) As discussed in Section II of this preamble, OSHA finds that slips, trips, and falls constitute a significant risk, and estimates that the final standard will prevent 29 fatalities and 5,842 injuries annually. Section 6(b) of the OSH Act requires OSHA to determine if its standards are technologically and economically feasible. As discussed in Section V of this preamble, OSHA finds that this final standard is economically and technologically feasible. The table below summarizes OSHA's findings with respect to the estimated costs, benefits, and net benefits of this standard. The annual benefits are significantly in excess of the annual costs. However, it should be noted that under the OSH Act, OSHA does not use the magnitude of net benefits as the decision-making criterion in determining what standards to promulgate.

The Regulatory Flexibility Act (5 U.S.C. 601, as amended) requires that OSHA determine whether a standard will have a significant economic impact on a substantial number of small firms. As discussed in Section V, the Assistant Secretary examined the small firms affected by this final rule and certifies that these provisions will not have a significant impact on a substantial number of small firms.

ER18NO16.096

D. Events Leading to the Final Rule

Existing standards.

In 1971, OSHA adopted the existing general industry standards on Walking-Working Surfaces (29 CFR part 1910, subpart D) and Personal Protective Equipment (PPE) (29 CFR part 1910, subpart I) pursuant to Section 6(a) of the OSH Act (29 U.S.C. 655(a)). Section 6(a) permitted OSHA, during the first two years following the effective date of the OSH Act, to adopt as occupational safety and health standards any established Federal and national consensus standards. OSHA adopted the subpart D and I standards from national consensus standards in existence at the time. Since then, those national consensus standards have been updated and revised, some several times, to incorporate advancements in technology and industry best practices. OSHA's existing walking-working surfaces standards have not kept pace with those advancements.

Early rulemaking efforts.

In 1973, OSHA published a proposed rule to revise the subpart D standards (38 FR 24300 (9/6/1973)), but withdrew the proposal in 1976, saying it was outdated (41 FR 17227 (4/23/1976)). That year OSHA conducted stakeholder meetings around the country to obtain public comment on revising subpart D. After reviewing information gathered from those meetings, OSHA determined that it needed to gather additional scientific and technical data, research, and information to support effective revisions to subpart D.

From 1976 through the 1980s, OSHA gathered a large body of scientific and technical research and information, including:

• Recommendations for fall prevention, ladders, scaffolds, slip resistance, and handrails from the University of Michigan;

• Studies on guardrails, slip resistance, scaffolds, and fall prevention from the National Bureau of Standards (now the National Institute of Standards and Technology);

• Analysis of various walking-working surfaces by Texas Tech University;

• Accident, injury, and fatality data from the Bureau of Labor Statistics (BLS); and

• National consensus standards from the American National Standards Institute (ANSI), American Society of Testing and Materials (ASTM), and the American Society of Mechanical Engineers (ASME).

1990 proposed rules.

The data, research, and information OSHA gathered provided the basis for OSHA's 1990 companion proposals to revise and update the walking-working surfaces standards in subpart D (55 FR 13360 (4/10/1990)) and add personal fall protection system requirements to subpart I (55 FR 13423 (4/10/1990)). The two proposals were interdependent with respect to personal fall protection systems. That is, the subpart D proposal would have established a “duty to provide” fall protection, including personal fall protection systems while the subpart I proposal would have established design, performance, and use criteria for personal fall protection systems.

OSHA received comments and held an informal public hearing on the two proposals (55 FR 29224), but did not finalize either.

1994 final rule revising subpart I.

In 1994, OSHA published a final rule updating the general industry PPE standards (59 FR 16334 (4/6/1994)). The final rule added new general provisions requiring that employers conduct hazard assessments; select proper PPE; remove defective or damaged PPE from service; and provide worker training in the proper use, care, and disposal of PPE (§ 1910.132). It also revised design, selection, and use requirements for specific types of PPE. However, the final rule did not apply the new general provisions to personal fall protection systems or include specific requirements addressing such systems.

2003 record reopening.

On May 2, 2003, OSHA published a notice reopening the record on the subpart D and I rulemakings to refresh the record, which had grown stale in the years since OSHA published the 1990 proposed rules (68 FR 23528). Based on comments and information OSHA received, including information on significant technological advances in fall protection, particularly personal fall protection systems, OSHA determined that a new proposed rule was needed.

2010 proposed rule.

On May 24, 2010, OSHA published a consolidated proposed rule on subparts D and I (75 FR 28862). The Agency provided 90 days, until August 23, 2010, for stakeholders to submit comments on the proposed rule, the preliminary economic analysis, and the issues the Agency raised in the proposal. The Agency received 272 comments, including comments from workers, employers, trade associations, occupational safety and health consultants, manufacturers, labor representatives, and government agencies (Exs. 52 through 326).

Several stakeholders requested an informal public hearing on the proposed rule (Exs. 172; 178; 180; 201; 256). OSHA granted the requests for a public hearing (75 FR 69369 (11/10/2010)), and convened the hearing on January 18, 2011, in Washington, DC (Ex. 329). Administrative Law Judge John M. Vittone presided over the four-day hearing during which 39 stakeholders presented testimony (Ex. 329). At the close of the hearing on January 21, 2011, Judge Vittone ordered that the hearing record remain open for an additional 45 days, until March 7, 2011, for the submission of new factual information and data relevant to the hearing (Exs. 327; 330; 328). He also ordered that the record remain open until April 6, 2011, for the submission of final written comments, arguments, summations, and briefs (Exs. 327; 331-370). On June 13, 2011, Judge Vittone issued an order closing the hearing record and certifying it to the Assistant Secretary of Labor for Occupational Safety and Health (Ex. 373).

II. Analysis of Risk

A. Introduction

To promulgate a standard that regulates exposure to workplace hazards, OSHA must demonstrate that exposure to those hazards poses a “significant risk” of death or serious physical harm to workers, and that the standard will substantially reduce that risk. The Agency's burden to establish significant risk derives from the Occupational Safety and Health Act of 1970 (OSH Act) (29 U.S.C. 651

et seq.

Section 3(8) of the OSH Act requires that workplace safety and health standards be “reasonably necessary or appropriate to provide safe or healthful employment and places of employment” (29 U.S.C. 652(8)). A standard is reasonably necessary and appropriate within the meaning of section 3(8) if it materially reduces a significant risk of harm to workers. The Supreme Court, in the “Benzene” decision, stated that section 3(8) “implies that, before promulgating any standard, the Secretary must make a finding that the workplaces in question are not safe” (

Indus. Union Dep't, AFL-CIO

Am. Petroleum Inst. (Benzene),

448 U.S. 607, 642 (1980)). Examining section 3(8) more closely, the Court described OSHA's obligation to demonstrate significant risk:

“[S]afe” is not the equivalent of “risk-free.” . . . [A] workplace can hardly be considered “unsafe” unless it threatens the workers with a significant risk of harm.

Therefore, before [the Secretary] can promulgate

any

permanent health or safety standard, the Secretary is required to make a threshold finding that the place of employment is unsafe—in the sense that significant risks are present and can be eliminated or lessened by a change in practices. (

Id.

(Emphasis in original)).

Relying on the U.S. Census' Statistics of U.S. Businesses for 2007, OSHA estimates that 6.9 million general industry establishments employing 112.3 million employees will be affected by the final standard. For the industries affected by the final standard, OSHA examined fatalities and lost-workday injuries for falls to a lower level.

In the proposed rule, the Agency preliminarily concluded that falls constitute a significant risk and that the proposed standards would substantially reduce the risk of falls to employees (75 FR 28861, 28865-28866 (5/24/2010)). The analysis of U.S. Bureau of Labor Statistics (BLS) data from 1992 to 2004 identified an annual average of 300 fatal falls, 213 (71 percent) of which resulted from falls to a lower level and an annual average of 299,404 non-fatal falls resulting in lost-workday injuries,

79,593 (26 percent) of which were as a result of falls to a lower level. The Agency's analysis also estimated that compliance with the proposed requirements in subparts D and I annually would prevent 20 fatal to a lower level and 3,706 lost-workday injuries due to falls to a lower level.

Based on the analysis presented in this section, which OSHA updated with more recent data, and in the Final Economic and Final Regulatory Flexibility Screening Analysis (FEA) (Section V), OSHA determines that workplace exposure to hazards associated with walking-working surfaces, particularly the hazards of falling to a lower level, poses a significant risk of serious physical harm or death to workers in general industry. BLS data from 2006-2012 show that an average of 261 fatal falls to a lower level occurred annually in general industry. In addition, BLS data for 2006-2012 indicate that an average of 48,379 lost-workday (LWD) injuries from falls to a lower level occurred annually in general industry.

OSHA also concludes, based on this section and the FEA, that the “practices, means, methods, operations, or processes” the final rule requires will substantially reduce that risk. Specifically, the Agency estimates that full compliance with the final rule will prevent 29 fatalities from falls to a lower level and 5,842 lost-workday injuries from falls to a lower level annually in general industry.

B. Nature of the Risk

Every year many workers in general industry experience slips, trips, falls and other injuries associated with walking-working surface hazards. These walking-working surface hazards result in worker fatalities and serious injuries, including lost-workday injuries. Slips, trips, and falls, including falls on the same level, can result in injuries such as fractures, contusions, lacerations, and sprains, and may even be fatal. Falls to lower levels can increase the severity of injuries as well as the likelihood of death. Falls on the same level can also result in strains and sprains when employees try to “catch” themselves to prevent falling.

There are many walking-working surface hazards that can cause slips, trips, and falls. These hazards include damaged or worn components on personal fall protection systems and rope descent systems; portable ladders used for purposes for which they were not designed; fixed ladders that are not equipped with fall protection; damaged stair treads; snow, ice, water, or grease on walking-working surfaces such as floors; and dockboards that are not properly secured or anchored.

Identifying walking-working surface hazards and deciding how best to protect employees is the first step in reducing or eliminating the hazards. To that end, the final rule requires that employers regularly inspect walking-working surfaces. It also requires that employers assess walking-working surfaces to determine if hazards are present, or likely to be, that necessitate the use of personal fall protection systems (§§ 1910.132(d); 1910.28(b)(1)(v)). In addition, employers must train employees on fall hazards and equipment plus the proper use of personal fall protection systems (§§ 1910.30, 1910.132(f)). After employers have assessed the workplace and identified fall hazards, final § 1910.28 requires employers to provide fall protection to protect their employees from falls. Final §§ 1910.29 and 1910.140 specify the criteria fall protection systems must meet, such as strength and performance requirements. Section A of the FEA provides detailed information on the incidents the final rule will prevent.

C. Fatality and Injury Data

Fatalities.

The BLS Census of Fatal Occupational Injuries (CFOI) has listed falls as one of the leading causes of workplace fatalities for many years. From 1999 to 2010, falls were second only to highway incidents in terms of fatal injuries. In 2011, slips, trips, and falls were the third leading cause of fatal occupational injuries and in 2012, the fourth leading cause of these types of injuries. Many fatal falls occur in general industry. From 2006-2012, approximately one-third of all fatal falls in private industry were falls to a lower level in general industry.

OSHA examined fall fatalities for 2006 to 2012 in industries covered by the final standard using data from the BLS Census of Fatal Occupational Injuries (CFOI). Table II-1, summarizing the data in Table V-6 of the FEA, shows the total number of fatal falls to a lower level from 2006 to 2012.

ER18NO16.097

As described in Table V-6 of the FEA, over the seven-year period, the Professional, Scientific, and Technical Services industry and the Administrative and Support Services industry (NAICS codes 541 and 561, respectively) accounted for 27 percent of the fatal falls, while the Manufacturing (NAICS 31-33) and Transportation (NAICS 48) sectors accounted for 9.6 and 7.1 percent of the fatal falls, respectively. Among all three-digit NAICS codes affected by the standard, BLS reported the highest number of fatal falls in NAICS code 561,

Administrative and Support Services. Although not shown in the table, a large majority of the fatalities for Administrative and Support Services—86 percent for the seven-year period 2006-2012—occurred in the industry concerned with services to buildings and dwellings (NAICS 5617). Based on these data, OSHA estimates that, on average, 261 deaths per year resulted from falls to a lower level and would be directly affected by the final standard.

Table V-7 of the FEA also includes data on fatal falls. That table displays the number of fatal falls by type of fall and industry sector for 2006-2010. These data indicate that during this period, there were, on average, 255 fatal falls to a lower level in general industry establishments when fatal falls are summed across all affected two-digit NAICS industries. While the annual number of fatal falls decreased and then rose since 2006, the average annual number of fatal falls to a lower level from 2006-2010 (255 fatal falls to a lower level) and 2011-2012 (274 fatal falls to a lower level)

remains at approximately the same level. In addition, falls remained one of the leading causes of workplace fatalities throughout this time, as discussed above.

Reference year 2011 is the first year in which the Injuries, Illnesses, and Fatalities (IIF) program used the Occupational Injury and Illness Classification System (OIICS), version 2.01, when classifying Event or Exposure, Primary Source, Secondary Source, Nature, and Part of Body. Due to substantial differences between OIICS 2.01 and the original OIICS structure, which was used from 1992 to 2010, data for these case characteristics from 2011 forward should not be compared to prior years.

Injuries.

OSHA examined lost-workday injuries using data from BLS's

Survey of Occupational Injuries and Illnesses.

Falls have been one of the leading causes of lost-workday injuries for the last several years. From 2006-2010, falls were consistently the third leading cause of injuries and illnesses, behind overexertion and contact with objects and equipment. From 2011-2012, slips, trips, and falls were the second leading cause of injuries and illnesses, behind only overexertion.

In addition to being a major source of lost-workday injuries, falls to a lower level were also some of the most severe. Falls to a lower level had the second highest median days away from work, a key measure of the severity of an injury or illness, every year from 2006-2012, except 2010 (where it was the third highest). BLS data also demonstrate that the majority of lost-workday falls to a lower level that occurred in private industry occurred in general industry. More specifically, for 2006-2012, approximately three-quarters of the lost-workday falls to a lower level in private industry occurred in general industry.

Table V-8 of the FEA shows the average number of lost-workday injuries due to falls in general industry, by type of fall, for 2006-2012. Based on these data, OSHA estimates that, on average, approximately 48,379 serious (lost-workday) injuries per year resulted from falls to a lower level and would be directly affected by the final standard.

Table II-2, based on BLS's

Survey of Occupational Injuries and Illnesses,

provides additional information about the median number of days away from work for lost-workday falls to a lower level from 2006-2012. Table II-2 displays the median number of days away from work attributed to falls to a lower level for each industry sector and private industry as a whole. In 2012, for example, the number of median days away from work for falls to a lower level in private industry as a whole was 18, while the median days away from work for all lost-workday injuries and illnesses in private industry as a whole was 8. Similarly, in 2012, the median days away from work for falls to a lower level in nearly every general industry sector was higher, and in many cases, much higher, than the median days away from work for all lost-workday injuries and illnesses in those sectors. This suggests that falls to a lower level are among the most severe lost-workday injuries.

ER18NO16.098

Based on the number of fatalities and lost-workday injuries reported by BLS for falls to a lower level, and evidence that non-fatal injuries are among the most severe work-related injuries, OSHA finds that workers exposed to fall hazards are at a significant risk of death or serious injury.

Several stakeholders agreed that fall hazards present a significant risk of injury and death (Exs. 63; 121; 158; 189; 363; OSHA-S029-2006-0662-0177; OSHA-S029-2006-0662-0350). For example, Bill Kojola of the American Federation of Labor and Congress of Industrial Organizations (AFL-CIO) asserted:

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

Similarly, in his written comments, Robert Miller of Ameren Corporation stated that the proposed rule is a positive approach towards eliminating at-risk conditions and events (Ex. 189).

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

In addition, Mr. Lankford argued that:

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

A review of 2003-2009 BLS data on the incidence rates of nonfatal occupational injuries and illnesses resulting from falls could not reproduce Mr. Lankford's claims. As previously discussed, falls continue to be one of the leading causes of lost-workday injuries. Falls to a lower level are also some of the most severe lost-workday injuries. In 2012, for example, the number of median days away from work for falls to a lower level in private industry as a whole was 18, while the median days away from work for all lost-workday injuries and illnesses in private industry as a whole was 8.

Mr. Lankford also suggested that fatal falls are a greater problem in the “goods producing sector” than the “service sector.” However, this assertion is not supported by the BLS data. As described in Table V-6 of the FEA, from 2006-2012, among all three-digit NAICS codes affected by the standard, BLS reported the highest number of fatal falls in a “service sector” (NAICS code 561, Administrative and Support Services). Further, over the seven-year period, the Professional, Scientific, and Technical Services industry and the Administrative, and Support Services industry (NAICS codes 541 and 561, respectively) accounted for 28 percent of the fatal falls.

Based on the evidence and analysis, OSHA disagrees with Mr. Lankford's comment. As mentioned above, after examining recent BLS data (2006-2012), OSHA finds that the available evidence points to a significant risk. OSHA believes that the risk of injury, combined with the risk of fatalities constitutes a significant safety threat that needs to be addressed by rulemaking—specifically a revision to subparts D and I. OSHA believes that the revisions to subparts D and I are reasonable and necessary to protect affected employees from those risks. Based on the BLS data, the Agency estimates that full compliance with the revised walking-working surfaces standards will prevent 28 fatalities and 4,056 lost-workday injuries due to falls to a lower level annually. OSHA finds that these benefits constitute a substantial reduction of significant risk of harm from these falls.

Several commenters urged OSHA to expand its analysis to include fatalities and injuries resulting from falls on the same level (Exs. 77; 329 (1/20/2011 pp. 42, 60-61); 329 (1/21/2011, pp. 200-203); 330). However, the Agency finds that, with regard to its significant risk analysis, the data for falls to a lower level constitute the vast majority of the risk that the standard addresses,

i.e.,

falls from elevations. Analysis in the FEA (Section V) demonstrates that fatal falls on the same level made up a small portion of all fatal falls. Table V-7 of the FEA shows that, for the five-year period 2006 to 2010, falls on the same level accounted for about 24 percent of total fall fatalities. For non-fatal injuries, the Agency recognizes that falls on the same level represent a significant portion of lost-workday fall-injuries. Table V-8 of the FEA shows that, in general industry, falls on the same level accounted for 68 percent of all falls resulting in lost-workday injuries, while falls to a lower level accounted for only 24 percent.

However, as discussed in the FEA, the final rule has relatively few new provisions addressing falls on the same level, such as slips and trips from floor obstructions or wet or slippery working surfaces. The requirements expected to yield the largest benefits from preventing falls on the same level are found in final § 1910.22 General requirements. These final provisions will result in safety benefits to workers by controlling worker exposure to fall hazards on walking-working surfaces, especially on outdoor surfaces. Tables V-11 and V-13 of the FEA show that OSHA estimates only 1 percent of fatal falls on the same level and 1 percent of lost-workday falls on the same level will be prevented by these provisions.

Since falls to a lower level constitute the vast majority of the risk the final rule addresses, OSHA's significant risk analysis includes only falls to a lower level. Because of this, OSHA notes the final risk analysis may understate the risk of falls in general industry, since falls on the same level account for 68 percent of falls resulting in a lost-workday injury.

The U.S. Chamber of Commerce questioned whether OSHA's estimate of the benefits of the proposed standard justified the efforts undertaken to issue the standard:

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

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

a qualitative examination

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

(Emphasis added)

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

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

III. Pertinent Legal Authority

The purpose of the OSH Act is to “assure so far as possible every working man and woman in the nation safe and healthful working conditions and to preserve our human resources” (29 U.S.C. 651(b)). To achieve this goal, Congress authorized the Secretary of Labor to issue and to enforce occupational safety and health standards (see 29 U.S.C. 655(a) (authorizing summary adoption of existing consensus and Federal standards within two years of the OSH Act's effective date); 655(b) (authorizing promulgation of standards pursuant to notice and comment); and 654(a)(2) (requiring employers to comply with OSHA standards)).

A safety or health standard is a standard “which requires conditions, or the adoption or use of one or more practices, means, methods, operations, or processes, reasonably necessary or appropriate to provide safe or healthful employment or places of employment” (29 U.S.C. 652(8)).

A standard is reasonably necessary or appropriate within the meaning of section 3(8) of the OSH Act if it materially reduces a significant risk to workers; is economically feasible; is technologically feasible; is cost effective; is consistent with prior Agency action or is a justified departure; adequately responds to any contrary evidence and argument in the rulemaking record; and effectuates the Act's purposes at least as well as any national consensus standard it supersedes (see 29 U.S.C. 652; 58 FR 16612, 16616 (3/30/1993)).

A standard is technologically feasible if the protective measures it requires already exist, can be brought into existence with available technology, or can be created with technology that can reasonably be expected to be developed (

Pub. Citizen Health Research Group

U.S. Dep't of Labor,

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

Am. Iron and Steel Inst.

OSHA (Lead II),

939 F.2d 975, 980 (D.C. Cir. 1991);

United Steelworkers of Am., AFL-CIO-CLC

Marshall,

647 F.2d 1189, 1272 (D.C. Cir. 1980)).

A standard is economically feasible if industry can absorb or pass on the cost of compliance without threatening its long-term profitability or competitive structure (

Am. Textile Mfrs. Inst.

Donovan (Cotton Dust),

452 U.S. 490, 530 n.55 (1981);

Lead II,

939 F.2d at 980). A standard is cost effective if the protective measures it requires are the least costly of the available alternatives that achieve the same level of protection (

Int'l Union, United Auto., Aerospace & Agric. Implement Workers of Am., UAW

OSHA (Lockout/Tagout II),

37 F.3d 665, 668 (D.C. Cir 1994).

see also

Ex. 325).

CRLAF reported similar data showing “nearly one-third (31%) of the 13,068 Workers' Compensation Claims in Washington State orchards between 1996 and 2001 involving compensation for lost work time were for ladder related injuries.”

Third, stakeholders said the fall protection standards that California, Oregon, and Washington have adopted to protect agricultural workers show that it is feasible to apply the final rule to agriculture operations (Exs. 325; 329 (1/18/2011, pgs. 207-210); 340; 370). Farmworker Justice said that government officials, agricultural orchard employers, and agricultural safety training experts in these states indicated that compliance with those standards have “significantly reduced injuries among agricultural workers” (Ex. 370). It also reported that a Washington study of fall injuries among orchard workers over a five-year period (1996-2001) following implementation of the state's fall protection standard found “statistically significant annual reductions in injuries” (Ex. 370, discussing Hofmann J, Snyder K, Keifer M. “A descriptive study of workers claims in Washington State orchards,” 56 Occupational Medicine 251-257 (2006)).

OSHA agrees with the stakeholders that walking-working surface hazards, particularly fall hazards, exist in agricultural operations. That said, OSHA has not included agricultural operation in the final rule. The Agency has not gathered and analyzed the type of information on agricultural operations necessary to support a rule. OSHA has not gathered and analyzed information on the number of agricultural workers and establishments the final rule would affect. In addition, OSHA has not determined what percentage of agricultural

establishments are farming operations with 10 or fewer non-family employees that have not maintained a temporary labor camp within the preceding 12 months and therefore exempt from enforcement of the final rule.

OSHA has not gathered and analyzed data and information on the jobs in agricultural operations where walking-working surface hazards are present and worker injuries and fatalities are occurring; the current employer practices to address these hazards; and the availability and cost of controls, such as fall protection systems, to protect workers from those hazards. In addition, OSHA has not conducted the economic and regulatory flexibility analyses necessary to make a feasibility determination. And, because the proposal clearly did not extend to agricultural operations, the public has not had a chance to comment on those issues. These and other steps are necessary before OSHA can issue a final rule that applies to agricultural operations. As such, the final rule applies to general industry and not agricultural operations. However, if an operation performed on a farm is not an “agricultural operation” or integrally related to an agricultural operation, such as a food manufacturing or other post-harvesting operations, then the final general industry rule applies.

Rolling stock and motor vehicles.

In this rulemaking OSHA has raised issues and requested comment about whether the final rule should include specific requirements to protect workers from falling off rolling stock and motor vehicles.

The 2010 proposal does not include specific requirements for rolling stock and motor vehicles (75 FR 28862). Instead, in the preamble, OSHA said it would continue gathering information and evidence to determine whether there is a need to propose specific requirements for rolling stock and motor vehicles (75 FR 28867). OSHA also said it needs “more information about what employers are presently doing and any feasibility and cost concerns associated with a requirement to provide protection” for rolling stock and motor vehicles. OSHA said it will wait until the record is more fully developed to make a determination about requiring fall protection on rolling stock and motor vehicles. OSHA also stated that if it receives sufficient comments and evidence to warrant additional rulemaking on rolling stock and motor vehicles, the Agency will issue “a

separate

proposed rule” (75 FR 28867) (emphasis in original). The comments the Agency received on the need for specific requirements for rolling stock and motor vehicles are summarized below.

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

Many stakeholders support adding specific fall protection requirements for rolling stock and motor vehicles to the final rule (

e.g.,

Exs. 127; 130; 155; 185; 198; 257; 307; OSHA-S029-2006-0662-0195; OSHA-S029-2006-0662-0196; OSHA-S029-2006-0662-0207; OSHA-S029-2006-0662-0227; OSHA-S029-2006-0662-0234; OSHA-S029-2006-0662-0247; OSHA-S029-2006-0662-0310; OSHA-S029-2006-0662-0329), while many urge OSHA to exclude rolling stock and motor vehicles from coverage or to limit fall protection requirements to specific situations, such as when vehicles are inside or contiguous to a building (

e.g.,

Exs. 63, 121; 158; 161; 162; 181; 182; 183; 220; 238; 335; OSHA-S029-2006-0662-0202; OSHA-S029-2006-0662-0219; OSHA-S029-2006-0662-0226; OSHA-S029-2006-0662-0229; OSHA-S029-2006-0662-0244; OSHA-S029-2006-0662-0252; OSHA-S029-2006-0662-0302; OSHA-S029-2006-0662-0306; OSHA-S029-2006-0662-0314; OSHA-S029-2006-0662-0320; OSHA-S029-2006-0662-0324).

Stakeholders who support adding specific fall protection requirements said workers are exposed to fall hazards working on rolling stock and motor vehicles; falls from rolling stock and motor vehicles have resulted in death and serious injury; and feasible, effective fall protection systems exist and are in use to protect employees working on rolling stock and motor vehicles. These stakeholders include safety professional organizations (

e.g.,

American Society of Safety Engineers (ASSE)); fall protection system manufacturers, suppliers, and installers; safety engineers and consultants; and labor organizations.

Stakeholders who oppose adding specific requirements said requiring fall protection for rolling stock and motor vehicles is not necessary, creates a greater hazard, and is infeasible. Some said OSHA did not have authority to regulate rolling stock and motor vehicles, and, in any event, should leave such regulation to the Federal Railroad Administration (FRA) and Federal Motor Carrier Safety Administration (FMCSA), respectively. Some stakeholders urged OSHA that the final rule limit fall protection requirements to vehicles located inside or contiguous to a building or structure. These stakeholders include employers, small businesses, and industry associations (Exs. 182; 220; OSHA-S029-2006-0662-0226; OSHA-S029-2006-0662-0229; OSHA-S029-2006-0662-0231; OSHA-S029-2006-0662-0237; OSHA-S029-2006-0662-0252; OSHA-S029-2006-0662-0306; OSHA-S029-2006-0662-0340).

Need for fall protection.

Several stakeholders asserted that fall protection on rolling stock and motor vehicles is not necessary for a variety of reasons. First, stakeholders said no or very few workers climb on rolling stock and motor vehicles (Exs. 124; 183; 187; 220; 238). For example, Minnesota Grain and Feed Association (MGFA) said members load/unload rolling stock and motor vehicles using electronic controls operated from ground-level instead (Ex. 220). Likewise, the Small Business Administration Office of Advocacy (SBA Advocacy) and American Trucking Associations (ATA) said employees load/unload truck trailers through the rear door directly to docks, ramps, and other devices (Exs. 124; 187; 190; 220). Stakeholders who said workers climb on rolling stock and motor vehicles stressed the number of workers doing so is very low. Conoco Phillips Company said, “[T]he number of employees required to work atop rolling stock is minimal (<1%)” (Ex. OSHA-S029-2006-0662-0320;

see also

Exs. 148 (NGFA—“At best, a small percentage of the employees . . . are exposed); 181 (American Truck Dealers/National Automobile Dealers Association (ATD/NADA)—less than 10 percent of employees)).

Other stakeholders, however, including some who oppose requiring fall protection, said a significant number/percentage of employees must climb on or access the tops of rolling stock and motor vehicles to perform a wide range of tasks, including loading/unloading, tarping, maintenance and repair, inspections, sampling, snow and ice removal, and other tasks (

e.g.,

Exs. 63; 121; 158; OSHA-S029-2006-0662-0350). For instance, Clear Channel Outdoors (CCO) said that nearly 80 percent of their field employees climb on motor vehicles (Ex. 121). Ferro Corporation estimated that almost one-half of employees at a typical plant climb onto the top of rolling stock and bulk trucks to perform tasks (Ex. OSHA-S029-2006-0662-0177).

Second, a number of stakeholders stated that fall protection is not necessary on rolling stock and motor vehicles because worker exposure to fall hazards is limited. Several stakeholders said exposure is “infrequent,” “brief and sporadic” (Exs. 124; 181; 183; 187;

OSHA-S029-2006-0662-0124; OSHA-S029-2006-0662-0183; OSHA-S029-2006-0662-0237). Other stakeholders maintain exposure to fall hazards on rolling stock and motor vehicles is more frequent and widespread. For example, Dynamic Scientific Controls (DSC) said fall hazards are present “daily in almost every plant that receives and ships” products (Ex. OSHA-S029-2006-0662-0227;

see also

Exs. 307; 329 (1/20/2011, p. 142)).

Third, some stakeholders assert fall protection is not necessary on rolling stock and motor vehicles because the heights employees climb do not pose fall hazards. For instance, ATA said the height of most commercial vehicle trailers is no more than 49 to 50 inches (

e.g.,

“step-downs” and “low boys”), which only nominally exceeds the 4-foot trigger (Ex. 187). Other stakeholders, however, reported that workers must climb significantly higher than 50 inches on motor vehicles, particularly tanker and hopper trucks, to perform tasks, some of which are the tasks they perform most frequently (

e.g.,

Exs. 130; 198; 307; OSHA-S029-2006-0662-0208). Even where workers only climb 49 to 50 inches onto a trailer or flatbed truck, some stakeholders said there is a risk of serious injury from falls (Exs. 63; 302; 329 (1/20/2011, pgs. 156-60)).

Fourth, a number of stakeholders said fall protection is not necessary because no or few injuries from falls off rolling stock and motor vehicles have occurred in their establishments or industry (Exs. 63; 121; 148; 162; 181; 237; OSHA-S029-2006-0662-0219; OSHA-S029-2006-0662-0237; OSHA-S029-2006-0662-0252; OSHA-S029-2006-0662-0320). Douglas Greenhaus, with ATD/NADA, said:

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

see also

Exs. 161; 169; 335; OSHA-S029-2006-0662-0207; OSHA-S029-2006-0662-0208; OSHA-S029-2006-0662-0350; OSHA-S029-2006-0662-0373). In addition, stakeholders submitted evidence showing that personal fall protection systems are available and in use in a broad range of industries, regardless of the location of the rolling stock and motor vehicles (

e.g.,

Exs. 130; 148; 158; 198; 307; 355; OSHA-S029-2006-0662-0208; OSHA-S029-2006-0662-0373). Some of these systems are attached to rolling stock and motor vehicles (

e.g.,

Exs. 307; 355; OSHA-S029-2006-0662-0208), while others are stand-alone or portable, wheel-mounted overhead systems that employers can use in open yards and other locations (

e.g.,

Exs. 148; 158; 198; 355-2; OSHA-S029-2006-0662-0373).

Second, several stakeholders stated that retrofitting rolling stock and motor vehicles with fall protection is not feasible (Exs. 63; 158; 190; 192; 329 (1/20/2011, pgs. 112-13); 335; OSHA-S029-2006-0662-0219). McNeilus Trucking, for instance, said retrofitting could affect the structural integrity or performance of rolling stock and motor vehicles (Ex. OSHA-S029-2006-0662-0219.

See also

Ex. 158). ILTA testified that although fall protection systems “are very routinely part of the initial design” in new equipment, existing rolling stock and motor vehicles “do not have assets that would readily accept a fall protection system”:

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

See also

Ex. 335).

Other stakeholders, including industry associations, commented that rolling stock and motor vehicles have been retrofitted with fall protection systems (

e.g.,

Exs. 307; 335; 355), and pointed out that there are many other types of portable and stand-alone fall protection systems (

e.g.,

overhead

trolley rail systems) available and in use instead of retrofitting rolling stock and motor vehicles (

e.g.,

Exs. 130; 198; 307; 329 (1/18/2011, pgs. 90-92); 355; OSHA-S029-2006-0662-0207; OSHA-S029-2006-0662-0208; OSHA-S029-2006-0662-0373).

Third, some stakeholders asserted fall protection on rolling stock and motor vehicles is not feasible because of circumstances beyond their control (Exs. 148; 181; 326). These stakeholders said, for example, they cannot install fall protection systems because they do not own the motor vehicles (

i.e.,

leased fleet, belong to customers, are inventory for sale) or rail carriers prohibit them from modifying rolling stock without prior approval. Some stakeholders said FRA and FMCSA requirements prevent them from using fall protection (Exs. 148; 326). For instance, NGFA stated that members cannot install fall protection on rolling stock because of FRA “clearance envelope” requirements (Ex. 148). Similarly, Southeast Transportation Systems (STS) said FMCSA rules on motor vehicle weight, height, width, length, and accessory design (

e.g.,

ladders) “are just some of the factors preventing the use of conventional fall protection systems” (Ex. 326.

See also

Exs. 158; OSHA-S029-2006-0662-0226). AFIA agreed:

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

Other evidence in the record, however, indicates that there are many portable and stand-alone fall protection systems available and in use today in both the rail and truck transportation industries, including overhead cable line systems, moveable stairs with railings, mobile access platforms with railings and/or safety cages and overhead tarping systems (

e.g.,

Exs. 198; 302; 355; OSHA-S029-2006-0662-0350; OSHA-S029-2006-0662-0373). For example, an NGFA survey revealed that nearly 40 percent of their member facilities have installed overhead fall protection systems in railcar loading areas (Ex. 148.

See also

63; 182; 335). The truck transportation industry has implemented a number of fall protection systems, including portable and adjustable access platforms/racks with railings or safety cages; pedestal platforms; collapsible outer rails; and walkways with collapsible railings (

e.g.,

Exs. 63; 357). Some stakeholders, including truck transportation industry companies and associations, also pointed to the increasing use of bottom-loading tanks and hoppers, which work even where there are external constraints (

e.g.,

Exs. 63; 158; 329 (1/20/2011, p. 143)).

Fall protection system manufacturers indicated that, based on their experience, “it is feasible and practical to provide workers with active or passive means of fall protection [for working on rolling stock and motor vehicles] in nearly every work situation” (Ex. 329 (1/18/2011, pgs. 82-83);

see also

Exs. 130; 185; 198; 307; 329 (1/18/2011, pgs. 90-92, 164-66); 329 (1/20/2011) pgs. 144, 149-75); 355-2; 355-12; OSHA-S029-2006-0662-0207; OSHA-S029-2006-0662-0208; OSHA-S029-2006-0662-0329; OSHA-S029-2006-0662-0350; OSHA-S029-2006-0662-0373). For example, FPS, which by 2003 already had provided more than 13,000 fall protection systems to the rail and trucking industries, said they have found “no technological or economic obstacles” to prevent employers from providing fall protection equipment for rolling stock and motor vehicles regardless of their location (Ex. 130). For many years, manufacturers have been producing rolling stock and motor vehicle fall protection systems especially designed for use in locations that are not in or contiguous to buildings or other structures (

e.g.,

Exs. 130, 307; 329 (1/18/2011, pgs. 82-83, 90-92); 329 (1/20/2011, pgs. 149-75, 188); 355; OSHA-S029-2006-0662-0208; OSHA-S029-2006-0662-0373). They also have designed, and employers are using, technological advancements that have eliminated the need for workers to climb on rolling stock and motor vehicles (Exs. 302; 329 (1/20/2011, pgs. 144-45, 149-75, 188); 355; OSHA-S029-2006-0662-0207; OSHA-S029-2006-0662-0208; OSHA-S029-2006-0662-0373). These advancements include tanker and hopper trucks that load/unload from the bottom; automated loading/unloading and tarping systems operated by ground-level controls (Exs. 63; 302; 329 (1/20/2011, pg. 143);

see also

Ex. 158). Several industry associations said member companies are increasingly purchasing these new technologies (Exs. 63; 158; 302). Safety and engineering consultants confirmed the ready availability, effectiveness, and feasibility of the new fall protection technologies for rolling stock and motor vehicles (Exs. 227; 251; OSHA-S029-2006-0662-0227; OSHA-S029-2006-0662-0350).

Employers and industry associations submitted information about effective fall protection controls that have been implemented (

e.g.,

Exs. 63; 148; 158; 162; 169; 181; 182; 220; 326; 335; 337; OSHA-S029-2006-0662-0177). For example, Ferro Corporation, which installed cable line systems over rail cars and work platforms with railings on the top of bulk trailers for loading/unloading coatings and other materials reported that they have not experienced any falls since installing the systems in 2000 (Ex. OSHA-S029-2006-0662-0177;

see also

Ex. 329 (1/20/2011, pgs. 149-75)).

As mentioned, AFIA said member companies have installed several types of fall protection systems (

e.g.,

retractable overhead lanyards and harnesses, elevated walkways, “pop-up handrails,” ground-level controls for loading/unloading) that “have proven to be effective”:

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

Industry associations also submitted information showing that a significant portion of their member companies already have installed fall protection systems for rolling stock and motor vehicles (Exs. 63; 148; 158; 162; 169; 181; 182; 220; 335; 357). For example, NGFA reported that nearly 40 percent of all member facilities already have installed overhead fall protection systems in railcar loading areas (Ex. 148). Even “country elevators,” which generally load only one- to three-railcar units, already have installed retractable safety lines and electronic systems operated from ground level (Ex. 148;

See also

OSHA-S029-2006-0662-0206). Therefore, they contend that Section 4(b)(1) of the OSH Act (29 U.S.C. 653(b)(1))

“displaces OSHA” from regulating rolling stock. FRA also pointed out that its “Railroad Occupational Safety and Health Standards” Policy Statement states that FRA exercises complete authority for “railroad operations,” which is the movement of equipment over the rails. FRA said this authority includes design of “rolling equipment used on a railroad, since working conditions related to such surfaces are regulated by FRA as major aspects of railroad operations” (43 FR 10583, 10587 (3/14/1978)).

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

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

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

Consistent with the Policy Statement, OSHA has authority over working conditions that do not constitute “railroad operations,” such as loading/unloading rolling stock by non-railroad employees off railroad property.

The American Railroad Association (ARA) said OSHA should allow the FRA to exercise authority over rolling stock for two reasons. First, they said rolling stock presents “special concerns, such as clearance issues in rail tunnels and the unique configuration of rolling stock.” Second, they said FRA, not OSHA, has “expertise to determine when regulations [on rolling stock] are necessary and the content of those regulations” (Ex. OSHA-S029-2006-0662-0202). OSHA believes it also has the expertise to address fall hazards on rolling stock. That said, “[i]n the past, FRA and OSHA have closely coordinated their mutual efforts to improve workplace safety in the rail industry” and OSHA “is committed to continuing working cooperatively” with FRA to maintain and further develop its expertise in rail industry safety (Ex. OSHA-S029-2006-0662-0232).

With regard to commercial motor vehicles, stakeholders asserted that, under Section 4(b)(1), the Motor Carrier Safety Act (MCSA) preempts OSHA from regulating commercial motor vehicles (Exs. 124; 187; 326). The MCSA defines “commercial motor vehicle” as a self-propelled or towed vehicle used on the highways in interstate commerce to transport passengers or property, if the vehicle:

• Has a gross vehicle weight rating or gross vehicle weight of at least 10,001 pounds, whichever is greater;

• Is designed or used to transport more than 8 passengers (including the driver) for compensation;

• Is designed or used to transport more than 15 passengers, including the driver, and is not used to transport passengers for compensation; or

• Is used in transporting material found by the Secretary of Transportation to be hazardous under section 5103 of this title and transported in a quantity requiring placarding under regulations prescribed by the Secretary under section 5103 (49 U.S.C. 31132).

However, as interpreted by the courts and the Occupational Safety and Health Review Commission, section 4(b)(1) does not create an industry-wide exemption. Rather, it preempts OSHA regulation of a particular workplace hazard addressed by the regulation of another agency. Thus, an OSHA standard is preempted by the MCSA only to the extent that the FMCSA has adopted a regulation for commercial motor vehicles addressing the hazard. For example, FMCSA addresses fall hazards for certain commercial motor vehicles in 49 CFR part 399. Since the Agency did not propose any specific fall protection requirements for rolling stock or motor vehicles, OSHA has not included any in this final rule. However, it will continue to consider the comments it has received, and in the future the Agency may determine whether it is appropriate to pursue any action on this issue.

Construction vs. Maintenance.

Some stakeholders expressed concerns that OSHA does not clearly delineate what activities are maintenance that the proposed general industry rule covers and what are construction that fall under OSHA's construction standards (Exs. 124; 150; 196; 202). For example, SBA Advocacy said participants in their small business roundtable were “confused about which standard applies under what circumstances”:

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

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

OSHA's regulations define construction work as “construction, alteration, and/or repair, including painting and decorating.” They further provide that OSHA's construction industry standards apply “to every employment and place of employment of every employee engaged in construction work.” . . . In order for work to be construction work, the employer need not itself be a construction company. . . . Further, construction work is not limited to new construction. It includes the repair of existing facilities. The replacement of structures and their components is also considered construction. . . .

There is no specified definition for “maintenance,” nor is there a clear distinction between terms such as “maintenance,” “repair,” or “refurbishment.” “Maintenance activities” can be defined by OSHA as making or keeping a structure, fixture or foundation (substrates) in proper condition in a routine, scheduled, or anticipated fashion. This definition implies “keeping equipment working in its existing state,

i.e.,

preventing its failure or decline.” . . . [D]eterminations of whether [an employer] is engaged in maintenance operations rather than construction activities must be made on a case-by-case basis (Memorandum for Regional Administrators (8/11/1994)).

OSHA letter to Regional Administrators is available on OSHA's Web site at:

https://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_id=21569.

In subsequent letters of interpretation, OSHA identified factors the Agency considers in determining whether the activity is maintenance or construction and applied them to specific examples (Letter to Randall Tindell (2/1/1999);

Letter to J. Nigel Ellis (5/11/1999));

Letter to Raymond Knobbs (11/18/2003)

). Those factors include:

OSHA letter to Mr. Tindall is available on OSHA's Web site at:

https://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_id=22687.

OSHA letter to Mr. Ellis is available on OSHA's Web site at:

https://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_id=23328.

OSHA letter to Mr. Raymond Knobbs is available on OSHA's Web site at:

https://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_id=24789.

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

Replacement with improved equipment is construction;

• Whether the work is scheduled. Activity that is an anticipated, routine, and periodic event to keep equipment from degrading and maintain it in its existing state is suggestive of maintenance. As long as the activity continues to be a scheduled activity, the passage of time between the activity, even 10 to 20 years, normally does not alter the characterization of the activity as maintenance;

• The scale and complexity of the activity; which also takes into consideration the amount of time and material required to complete it. Although a project may not necessarily be large in terms of scale, a complex activity in terms of steps involved and tools and equipment needed to complete is likely to be construction; and

• The physical size of the object being worked on. Physical size can be a factor if, because of its size, the process of removal and replacement involves significantly altering the structure or equipment that the object is in. Significant alterations of the structure or equipment will likely be construction.

OSHA believes these factors and examples outlined in the letters of interpretation provide useful guidance to help employers determine whether a particular activity is maintenance or construction. If there is an instance where an employer may not be able to easily classify an activity as maintenance or construction, when measured against the above factors, following the more protective standard will ensure compliance.

In any event, since one of the primary goals of this rulemaking is to harmonize the general industry and construction walking-working surface standards, OSHA believes the distinction between maintenance and construction is of much less significance. As discussed in the introduction to the Summary and Explanation (Section IV), in updating and revising the walking-working surface standards in subpart D and adding new personal fall protection requirements to subpart I, OSHA made requirements consistent with construction standards, where possible. For example, in final §§ 1910.28 and 1910.140, OSHA adopts the flexible approach to providing fall protection systems that the construction standard codified in 1994. Thus, whether performing general industry or construction operations, employers may provide personal fall protection systems to protect their workers. OSHA notes that in the discussion of provisions in subparts D and I the Agency identifies the corresponding construction standards the final rule incorporates. As a result, OSHA believes that in most cases employers will be able to use the same controls, particularly fall protection systems, and follow the same work practices regardless of whether they are performing general industry or construction activities.

Paragraph (b)—Definitions

Final paragraph (b) defines terms that are applicable to all sections of final subpart D. For the most part, OSHA drew the final definitions from the existing rule (existing § 1910.21(a) through (g)), other OSHA standards (

e.g.,

29 CFR 1926.450, 1926.500, 1926.1050), and national consensus standards. For example, the Agency adopted several definitions from the construction fall protection standard (§ 1926.500(b)) and revised the language of other definitions to make them consistent with definitions in OSHA construction standards. The Agency also drew a number of definitions from the following national consensus standards, all of which have been revised and updated or issued since OSHA adopted existing § 1910.21(b) in 1971:

• American National Standard Institute (ANSI) A14.1-2007, American National Standard for Safety Requirements for Portable Wood Ladders (ANSI A14.1-2007) (Ex. 376);

• American National Standard Institute (ANSI) A14.2-2007, American National Standard for Safety Requirements for Portable Metal Ladders (ANSI A14.2-2007) (Ex. 377);

• American National Standard Institute (ANSI) A14.3-2008, American National Standard for Ladders—Fixed—Safety Requirements (ANSI A14.3-2008) (Ex. 378);

• American National Standard Institute (ANSI) A14.5-2007, American National Standard for Safety Requirements for Portable Reinforced Plastic Ladders (ANSI A14.5-2007) (Ex. 391);

• American National Standard Institute (ANSI) A14.7-2011, Safety Requirements for Mobile Ladder Stands and Mobile Ladder Stand Platforms (ANSI A14.7-2011) (Ex. 379);

• American National Standard Institute/American Society of Safety Engineers (ANSI/ASSE) A10.18-2012, Safety Requirements for Temporary Roof and Floor Holes, Wall Openings, Stairways, and Other Unprotected Edges in Construction and Demolition Operations (ANSI/ASSE A10.18-2012) (Ex. 388);

• American National Standard Institute/American Society of Safety Engineers (ANSI/ASSE) A10.32-2012, Fall Protection Systems—American National Standard for Construction and Demolition Operations (Ex. 390);

• American National Standard Institute/American Society of Safety Engineers (ANSI/ASSE) A1264.1-2007, Safety Requirements for Workplace Walking/Working Surfaces and Their Access; Workplace, Floor, Wall and Roof Openings; Stairs and Guardrail Systems (ANSI/ASSE A1264.1-2007) (Ex. 13);

• American National Standard Institute/American Society of Safety Engineers (ANSI/ASSE) Z359.0-2012, Definitions and Nomenclature Used for Fall Protection and Fall Arrest (ANSI/ASSE Z359.0-2012) (Ex. 389);

• American National Standard Institute/International Window Cleaning Association (ANSI/IWCA) I-14.1-2001, Window Cleaning Safety (ANSI/IWCA I-14.1-2001) (Ex. 14);

• American National Standard Institute (ANSI) MH30.2-2005, Portable Dock Leveling Devices: Safety, Performance and Testing (ANSI MH30.2-2005) (Ex. 20);

• National Fire Protection Association (NFPA) 101-2012, Life Safety Code (NFPA 101-2012) (Ex. 385); and

• International Code Council (ICC) International Building Code-2012 (IBC-2012) (Ex. 386).

Final paragraph (b) differs from the existing and proposed rules in several respects. First, the final rule eliminates a number of terms the regulatory text no longer uses. The final rule does not retain the proposed definitions for the following terms because OSHA did not use these terms in final subpart D: “qualified climber,” “safety factor,” and “single-point adjustable suspension scaffold.”

Second, in addition to the definitions in the proposed rule, final paragraph (b) adds a number of new definitions, including “anchorage,” “dangerous equipment,” “low-slope roof,” “personal fall arrest system,” “personal fall protection system,” “positioning system (work-positioning system),” “stairway (stairs),” “travel restraint system,” and “warning line.” Most of the definitions are commonly used terms that pertain to new control methods that the final rule allows employers to use to protect workers from falling. For example, several definitions relate to personal fall protection systems, which the final rule allows employers to use instead of guardrails, cages, and wells specified by the existing rule.

Third, final paragraph (b) revises existing definitions to make them consistent with OSHA's construction

standards (

e.g.,

§§ 1926.450, 1926.500, 1926.1050). OSHA is aware that many employers and workers perform both general industry and construction activities, and the Agency believes that making the standards, including terminology, consistent will help those employers better understand and fully comply with the final rule.

Fourth, final paragraph (b), like the proposed rule, reorganizes the terms and definitions and clarifies that they are applicable to every section of subpart D. By contrast, the existing rule in § 1910.21 lists the terms and definitions for each section of subpart D separately. Consequently, because the existing rule uses some terms in more than one section of subpart D, it defines those terms multiple times. Final paragraph (b) eliminates this unnecessary repetition, thereby making the final rule easier to understand.

Fifth, and finally, in revising final paragraph (b), OSHA used plain and performance-based language. The Agency believes these types of revisions make the terms and definitions easy for employers and workers to understand, and clarifies several issues raised by stakeholders (discussed below).

The following paragraphs discuss the terms and definitions included in final paragraph (b).

Alternating tread-type stair.

The final rule, similar to the proposal, defines this term as a type of stairway that consists of a series of treads usually attached to a center support in an alternating manner, such that a worker typically does not have both feet on the same level while using the stairway. The limited width of the treads makes it difficult or impossible for workers to place both feet on a single tread. OSHA does not consider alternating tread-type stairs to be “standard stairs” as defined in final § 1910.21(b).

The existing rule did not specifically address or define alternating tread-type stairs. The definition in the final rule is consistent with ANSI/ASSE A1264.1-2007. OSHA received no comments on the proposed definition and adopts it as discussed.

Anchorage.

This is a new term added to the final rule. An anchorage is defined as a secure point of attachment for equipment such as lifelines, lanyards, deceleration devices and rope descent systems. Anchorages can also be a component of a fall protection system. An anchorage may be installed to serve such purpose or may be a fixed structural member such as a post, beam, girder, column, floor, or wall that is an integral part of a structure. An anchorage must be capable of safely supporting the impact forces applied by a fall protection system.

OSHA drew the term and definition for “anchorage” from the § 1910.140, Personal fall protection systems. The definition is consistent with the construction fall protection (§ 1926.500(b)), the general industry powered platforms (§§ 1910.66, appendix C, Section I(b)), and the shipyard-employment fall protection standards (§ 1915.151(b)). It also is consistent with the “anchorage” definition in ANSI/ASSE A10.32-2012 (Section 2.4) and ANSI/ASSE Z359.0-2012 (Section 2.5). See § 1910.140 for additional information and discussion of stakeholder comments on the definition of “anchorage.”

Authorized.

This final term, like the proposal, refers to a worker who the employer assigns to perform a specific type of duty, or be in a specific location or area in the workplace. The work that authorized employees perform and the work locations where they work often involve situations or conditions where fall hazards are present, such as the working side of teeming or slaughtering platforms, and open/unguarded repair pits.

OSHA notes that once the employer assigns an authorized employee to perform certain work tasks or to be in a certain location, the worker may continue to perform those tasks or be in such work locations without further approval. OSHA did not receive any comments on the proposed definition and adopts it as discussed.

Cage.

This term in the final rule, like the proposal, means an enclosure mounted on the side rails of a fixed ladder or fastened to a structure behind the fixed ladder. The final definition also specifies that a cage surrounds the climbing space of the ladder. This will contain the worker and direct a falling worker to a lower landing. A cage may also be called a “cage guard” or “basket guard.”

This definition is essentially the same as the definition for “cage” found in existing § 1910.21(e)(11); it also is consistent with ANSI A14.3-2008, American National Standard for Ladders—Fixed—Safety Requirements. OSHA did not receive any comments on the proposed definition and adopts it with only minor revisions for clarity.

Carrier.

Final paragraph (b), similar to the proposed rule, defines a carrier as the track of a ladder safety system that consists of a flexible cable or rigid rail attached to the fixed ladder or immediately adjacent to it. The final definition is consistent with ANSI A14.3-2008 (Section 3). The final rule clarifies that fixed ladders may have carriers mounted to them, usually onto the ladder face or immediately adjacent to the ladder. OSHA received no comments on the proposed definition and adopts it with the clarifications discussed.

Combination ladder.

Final paragraph (b), like the proposed rule, defines a combination ladder as a portable ladder that an employer can use as a stepladder, extension ladder, trestle ladder, or a stairway ladder. The final definition also specifies that employers may use the components of a combination ladder separately as a single ladder.

The final definition is consistent with ANSI A14.1-2007, ANSI A14.2-2007, and ANSI A14.5-2007. OSHA did not receive any comments on the proposed definition and adopts it with only minor revisions for clarity.

Dangerous equipment.

The final rule adds this term and defines it as equipment, such as vats, tanks, electrical equipment, machinery, equipment or machinery with protruding parts, or other similar units that, because of their function or form, may harm an employee who falls into or onto it.

This new definition was added in response to a recommendation from Northrop Grumman Shipbuilding that OSHA define “dangerous equipment” in the final rule (Ex. 180). OSHA drew the new definition from the construction fall protection standard (§ 1926.500(b)).

Designated area.

This term means a distinct portion of a walking-working surface delineated by a warning line in which work may be performed without additional fall protection. Examples of additional fall protection include guardrails, safety nets, and personal fall protection systems. As mentioned in the proposed rule and in the discussion of final § 1910.28(b)(13), a designated area is a non-conventional fall protection method.

The final rule allows employers to use designated areas for work on low-slope roofs (final § 1910.28(b)(13)). The concept of a designated area in the final rule is similar to controlled access zones and warning line systems in OSHA's construction fall protection standards (§§ 1926.500(b) and 1916.502(g) and (h)), which also do not require the use of conventional fall protection in specified situations.

The final definition differs from the proposal in that the proposed definition included the term “temporary” work, while the final does not. OSHA continues to believe that employers need to limit use of designated areas to short and brief tasks, such as equipment repair or annual maintenance, that

workers perform on infrequent occasions;

i.e.,

employers are not to use designated areas for lengthy or routine jobs that involve frequent exposure to fall hazards. However, including “temporary” in the definition is unnecessary because final § 1910.28(b)(13)(ii) already limits the use of designated areas to work that is both temporary and infrequent. OSHA did not receive any comments on the proposed definition and adopts it as discussed.

Dockboard.

In the final rule, dockboard means a portable or fixed device that spans a gap or compensates for the difference in elevation between a loading platform and a transport vehicle. The definition also specifies that dockboards include, but are not limited to, bridge plates, dock plates, and dock levelers. Examples of transport vehicles include motor vehicles, trucks, trailers, rail cars, and other vehicles.

The final rule uses the term “transport vehicle” in place of the proposed term “carrier.” OSHA believes “transport vehicle” is clear and familiar to employers as it is a commonly used term for a cargo-carrying vehicle. The Agency drew the term from ANSI MH30.2-2005.

The final rule adds examples of devices that OSHA includes within the definition of dockboards, including bridge plates, dock plates, and dock levelers. The Agency believes that providing these examples will help employers and workers better understand whether devices manufactured under other names are “dockboards.” OSHA notes that the list of dockboard examples is not exhaustive. That is, any device that employers use to span a gap or compensate for the difference in levels between a loading platform and transport vehicle is a dockboard for the purposes of final subpart D.

OSHA did not receive any comments on the proposed definition and adopts the definition with the changes discussed above.

Equivalent.

In the final rule, this term means alternative designs, equipment, materials, or methods that the employer can demonstrate will provide an equal or greater degree of safety for workers compared to the designs, equipment, materials, or methods specified in this subpart.

OSHA proposed revising the definition of “equivalent” in existing § 1910.23(g)(6) to incorporate language from the construction standards for fall protection, stairways, and ladders standards (§§ 1926.450(b); 1926.500(b); and 1926.1050(b)). These standards specify that the employer has the burden to demonstrate that the alternate designs, materials, methods, or items will provide an equal or greater degree of safety for workers than the designs, materials, methods, or items the final rule specifies or requires. OSHA did not receive any comments on the proposed definition and finalizes the term so it is consistent with OSHA construction standards.

Extension ladder.

Final paragraph (b), like the proposed rule, defines this term as a portable ladder that is non-self-supporting and is adjustable in length. The final rule consolidates into one term, and simplifies the language in, the definitions in existing § 1910.23(c)(4) and (d)(4); this existing provision states that an extension ladder “consists of one or more sections traveling in guides or brackets so arranged as to permit length adjustment.” OSHA believes that the concise, plain language in the final definition will enhance understanding of requirements involving extension ladders; moving the specifications currently in the existing standards to final § 1910.23 also should improve understanding of these requirements.

The final definition generally is consistent with ANSI A14.1-2007, ANSI A14.2-2007, and ANSI A14.5-2007. OSHA did not receive any comments on the proposed definition and adopts it as proposed.

Failure.

Final paragraph (b), similar to the proposed rule and construction standards (§§ 1926.450(b); 1926.500(b); and 1926.1050(b)), defines “failure” as a load refusal, breakage, or separation of component parts. The final definition explains that a “load refusal” is the point at which the ultimate strength of a component or object is exceeded. To illustrate, if the load exceeds the ultimate strength of a walking-working surface, such as an elevated work platform, the platform likely will collapse.

For the purpose of this definition, load refusal includes permanent deformation of a component part, which is consistent with ANSI/ASSE A1264.1-2007 (Section 2.3). For example, elongation of a connector that causes the connector to lose its strength is the type of permanent deformation OSHA intends the final definition to cover. Similarly, damage to a guardrail system that weakens the bolts or other fasteners so the system cannot support a worker's weight is the type of permanent deformation the final definition intends to covers.

OSHA did not receive any comments on the proposed term and definition and adopts the definition with minor editorial changes for clarity.

Fall hazard.

This term, in the final rule, means any condition on a walking-working surface that exposes a worker to a risk of harm from a fall on the same level or to a lower level. The final definition is almost identical to the proposal; however, the final rule uses “risk of harm” in place of “injury.” It is clear from the Analysis of Risk (Section II) section and the Final Economic Analysis (FEA) (Section V) that worker exposure to fall hazards can result in death as well as injury. OSHA believes the language in the final definition more accurately and fully captures the range of adverse outcomes that can result from falls.

In response to the proposal, OSHA received one comment from Mr. David Hoberg of DBM Corporations, recommending that OSHA add a specific height to the definition of fall hazard (Ex. 206). He said that a specific height is needed for enforcement purposes. OSHA disagrees. The risk of a fall or other harm exists at any height, including on the same level. That said, OSHA has established specific heights that trigger fall protection requirements in final § 1910.28. The final definition is adopted as proposed.

Fall protection.

The final rule, like the proposed rule, defines “fall protection” as any equipment, device, or system that prevents a worker from falling from an elevation or that mitigates the effect of such a fall. For the purposes of the final rule, “mitigates the effect” means that the fall protection prevents the worker from coming into contact with a lower level if a fall occurs. As noted in the preamble to the proposed standard, examples of fall protection include guardrail systems, safety net systems, ladder safety systems, personal fall arrest systems, and similar fall protection systems. OSHA did not receive any comments on the proposed definition and adopts it with minor revisions for clarity.

Fixed ladder.

The final definition of fixed ladder, which is generally consistent with existing § 1910.21(e)(2) and the proposed rule, means a ladder with rails or individual rungs that is permanently attached to a structure, building, or equipment. The definition also states that fixed ladders include individual-rung ladders, but do not include ship stairs, step bolts, or manhole steps.

The final definition differs from the existing and proposed rules by clarifying what OSHA does not consider to be fixed ladders. Accordingly, the final definition specifies that fixed ladders do not include ship stairs (ship ladders), step bolts, and manhole steps. Although these devices share some of

the same characteristics of fixed ladders, such as a vertical or steep slope, the final rule clarifies that they are not fixed ladders, and therefore, are covered under separate provisions of the final rule.

While fixed ladders include ladders attached to equipment, OSHA notes ladders that are designed into or are an integral part of machines or equipment are excluded from coverage by final § 1910.23(a)(2).

The final definition, as revised, is consistent with OSHA's stairways and ladders standard for construction (§ 1926.1050(b)) and ANSI A14.3-2008 (Section 3). OSHA received no comments on the proposed definition and finalizes it with the revisions discussed.

Grab bar.

This term means an individual horizontal or vertical handhold installed to provide workers with access above the height of a ladder. The final definition revises the existing and proposed rules in two respects. First, the final definition adds language indicating that employers can use grab bars installed either horizontally or vertically. OSHA received one comment about the orientation of grab bars. Nigel Ellis, of Ellis Fall Safety Solutions, recommended OSHA require employers to use only horizontal grab bars when the length of the bars exceeds six inches because it would be impossible to stop workers' hands from sliding down the vertical grab bar during a fall (Ex. 155). He also cited a University of Michigan study that recommended using only horizontally oriented grab bars (Ex. 155, discussing Young J,

et al.

“Hand-Handhold Coupling: Effective Handle Shape, Orientation, and Friction on Breakaway Strength,” 51 Human Factors 705-717 (2009)). OSHA is not adopting Mr. Ellis' recommendations because the customary industry practice, as specified by the ANSI fixed ladder standard (ANSI A-14.3-2008 (Section 5.3.3.1)), is to allow the use of either horizontal or vertical grab bars and not to limit the length of vertical grab bars.

Second, the final definition deletes language in existing § 1910.21(e)(14) and the proposed rule specifying that employers use only grab bars placed adjacent to a ladder or used as an extension of a ladder. The final definition revises this language to ensure that employers use only grab bars installed above the height of the ladder, not adjacent to it. When grab bars are also in a vertical orientation relative to a ladder, they are not an extension of the ladder; therefore, the final definition removed the language from the proposal referring to grab bars as an extension of a ladder.

Guardrail system.

In the final rule, similar to the proposal, this term means a barrier erected along an unprotected or exposed side, edge, or other area of a walking-working surface to prevent workers from falling to a lower level. A guardrail system generally consists of vertical, horizontal, or inclined supports; top rails; midrails; screens; mesh or solid panels; intermediate vertical members; or other equivalent structural members. Guardrail systems can be either permanent or removable. The final definition generally is consistent with the scaffold and fall protection standards for construction (§§ 1926.450(b) and 1926.500(b)).

The proposed and final definition simplify the existing definitions in § 1910.21(a)(6) and (g)(7) by consolidating the terms “guardrail” and “standard railing” into the single term “guardrail system.” The existing definitions are similar to, and included within, the final definition. As a result, there is no need to include both terms and definitions in the final rule since the single term “guardrail system” adequately covers both terms.

The final rule clarifies the proposed definition by specifying that guardrails are barriers that employers may erect on a side, edge, or other area of a walking-working surface (

e.g.,

hole). The barrier may be a framework or system of individual units used together to provide protection. For example, a guardrail system may consist of several barriers surrounding a hole.

OSHA did not receive any comments on the proposed definition and, therefore, adopts it as explained.

Handrail.

The final rule, like the proposed rule and the construction stairways standard (§ 1926.1050(b)), defines a handrail as a rail used to provide workers with a handhold for support. Handrails may be horizontal, vertical, or sloping. According to ANSI/ASSE A1264.1-2007 (Sections 2.6 and 2.7), handrails also may be part of a stair rail or stair rail system (

i.e.,

the top rail).

The proposed and final definition simplify and consolidate into one term the three definitions for “handrail” in the existing rule in §§ 1910.21(a)(3), (b)(1), and (g)(8). Specifically, the final definition deletes existing specifications for the materials (

e.g.,

pipe, bar) that employers must use for handrails, which makes the final definition consistent with final § 1910.29, Fall protection systems criteria and practices. The final definition also is consistent with ANSI/ASSE A1264.1-2007 (Section 2.7). OSHA did not receive any comments on the proposed definition and adopts the final definition as proposed.

Hoist area.

In the final rule, like the proposal, a hoist area is defined as any elevated access opening to a walking-working surface through which equipment or materials are loaded or received. The final definition deletes the term “hoisted” before the phrase “equipment or material” in the proposed definition because the definition covers any means of loading, passing, or receiving equipment or materials through the hoist area. OSHA did not receive any comments on the proposed definition and finalizes it with the revisions discussed.

Hole.

The final rule, similar to the proposed rule, defines a hole as a gap or open space in a floor, roof, horizontal walking-working surface, or similar surfaces that is at least two inches in its least dimension. Similar surfaces include runways, dockboards, stair treads, and other low-slope or inclined surfaces where employees walk or work. The existing rule contains four different terms for holes and openings in walking-working surfaces: Floor hole (existing § 1910.21(a)(1)), floor opening (existing § 1910.21(a)(2)), wall hole (existing § 1910.21(a)(10)), and wall opening (existing § 1910.21(a)(11)). Each of the terms has a separate definition. ANSI/ASSE A1264.1-2007 contains the same four terms and definitions.

The final definition consolidates and simplifies the existing rule in two respects. First, the final rule designates a “hole” as a gap or open space in “horizontal walking-working surfaces,” (

e.g.,

floor, roof, similar surfaces) and an “opening” as a gap or space in “vertical walking-working surfaces” (

e.g.,

wall or partition). The final definition of “hole” revises the proposed definition by adding “horizontal” and “similar surfaces” so employers know holes are not limited to floors or roofs.

Designating the term “hole” to refer to gaps in horizontal or similar walking-working surfaces allows OSHA to simplify and consolidate the existing definitions for “floor hole” and “floor opening” into a single term: “hole.” The existing rule in § 1910.21(a)(1) defines a “floor hole” as a gap that is more than one inch but less than 12 inches at its least dimension, while existing § 1910.21(a)(2) defines a “floor opening” as a gap that is 12 inches or more at its least dimension. Combining the two terms also makes the final definition consistent with the definition in the construction fall protection standard in § 1926.500(b). The final rule, like the proposal, also expands the term “hole” to cover gaps in roofs and similar horizontal walking-working surfaces, as well as floors.

Second, consistent with the Plain Writing Act of 2010, the final definition substitutes “open space” for “void” to make the term easier to understand.

OSHA received one comment on the proposed rule. Mark Damon, of Damon, Inc., questioned the need for a definition of hole in a fall protection standard, asserting that workers could not fall through a two-inch or larger gap (Ex. 251). OSHA disagrees with Mr. Damon's assertion. Although a worker cannot fall through a narrow (2-inch) hole in a walking-working surface, such holes can cause workers to trip and fall on the same level or to a lower level. Such falls can result in worker injury or death. As such, OSHA is retaining the definition with the changes discussed above.

Individual-rung ladder.

This is a type of fixed ladder that has rungs individually attached to a building or structure. It does not include manhole steps. The proposed rule also excluded manhole steps.

Although manhole steps have individual rungs, they involve unique conditions, and OSHA addresses these conditions in a separate section of final subpart D (§ 1910.24). Therefore, the final definition excludes manhole steps from the individual-rung ladder definition to prevent any confusion and emphasize that final § 1910.24, not final § 1910.23 applies to manhole steps.

The proposed rule also included ladders consisting of rungs individually attached to a piece of equipment. Because final rule § 1910.23(a)(2) excludes ladders designed into or integral to a piece of equipment, there was no need to include such ladders within the definition of individual rung ladders.

OSHA did not receive any comments on the proposed definition and adopts it with the revisions discussed above.

Ladder.

This term means a device with rungs, steps, or cleats used to gain access to a different elevation. The final rule simplifies and consolidates into one definition the three definitions of “ladder” in the existing rule in § 1910.21(c)(1), (d)(1), and (e)(1). The final definition also eliminates references to ladder specifications (

e.g.,

“joined at regular intervals”) since they simply repeat requirements addressed by final § 1910.23.

OSHA received one comment on the proposed “ladder” definition. Steve Smith, of Verallia, recommended that OSHA clarify the term because he said that the phrase “a device with steps” is ambiguous and could include stairs as well as a ladder (Ex. 171). OSHA does not agree that stakeholders might mistakenly think the term “ladder” includes stairs. The proposed and final definitions of “ladder” are essentially the same as the one that all of the ANSI A14 ladder standards use: “Ladder. A device incorporating or employing steps, rungs, or cleats on which a person may step to ascend or descend” (see,

e.g.,

ANSI A14.1-2007 (Section 4); ANSI A14.2-2007 (Section 4); ANSI A14.3-2008 (Section 3); ANSI A14.5-2007 (Section 4)). The ANSI A14 ladder standards have been in place for years, and OSHA believes employers, workers, and manufacturers clearly understand the term “ladder,” as defined in the ANSI standards, and will not confuse the term with stairs. However, to ensure the final rule is understandable, the final rule clarifies the definitions of “rung, step, or cleat” and “tread” to specify that a “step” is a cross-piece of a ladder and “tread” refers to the horizontal part of “stairways (stair).”

Ladder safety system.

In the final rule, a ladder safety system is a system designed to eliminate or reduce the possibility of falling from a ladder. The final definition explains that a ladder safety system usually consists of a carrier; a safety sleeve, which is a moving component that travels on the carrier; a lanyard; connectors; and a body harness. The final definition also specifies that cages and wells are not ladder safety systems.

The existing rule in § 1910.21(e)(13) uses a similar term, “ladder safety device,” which also excludes ladder cages and wells. OSHA's construction ladder standard in § 1926.1053 uses the same term, but does not include a definition of the term. The final definition is consistent with the ANSI fixed-ladder standard (ANSI A14.3-2008; Section 3).

OSHA received one comment on the definition of ladder safety system. Darryl Hill, of the American Society of Safety Engineers (ASSE), urged OSHA to prohibit the use of body belts in ladder safety systems as the Agency did with personal fall arrest systems:

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

OSHA agrees with ASSE that full-body harnesses provide better suspension support precisely because they distribute arresting/impact forces over a larger area of a worker's body than body belts. To that end, the final rule in § 1910.140(d)(3) retains OSHA's 1998 prohibition on the use of body belts as part of a personal fall arrest system. OSHA believes this requirement in final § 1910.140 addresses ASSE's concern and the Agency encourages employers to provide, and require that their workers use body harnesses when using any type of personal fall protection equipment.

Low-slope roof.

This is a new term that OSHA added to the final rule. Low-slope roof is defined as a roof with a slope less than or equal to a ratio of 4 in 12. A ratio of 4 in 12 means a vertical rise of 4 units (

e.g.,

inches, feet, meters) to every 12 units of horizontal run. The final definition is almost identical to the definition of “low-slope roof” found in the construction fall protection standard in § 1926.500(b).

OSHA added this term to final paragraph (b) because the final rule includes a new provision on controlling fall hazards on low-slope roofs (final § 1910.28(b)(13)), which is consistent with the construction fall protection standard in § 1926.501(b)(10). OSHA is aware that low-slope roofs also are referred to as “flat roofs.” However, even a so-called “flat roof” has some slope to allow for drainage. As such, OSHA believes that the term “low-slope roof” more accurately represents these roofing configurations.

Lower level.

The final rule, similar to the proposal, defines this term as a surface or area to which workers could fall. The final definition lists examples of lower levels including, but not limited to, ground levels, floors, roofs, ramps, runways, excavations, pits, tanks, materials, water, equipment, and similar surfaces and structures, or portions thereof. The final rule adds to the proposed definition of lower level “surface” and “structures, or portions thereof,” which make the final definition consistent with the definition of “lower level” in the construction fall protection standard in § 1926.500(b). The construction standards for scaffolds, and stairways and ladders, also have similar definitions (§§ 1926.450(b); 1926.1050(b)). OSHA did not receive any comments on the proposed definition and adopts it with the changes discussed above.

Manhole steps.

The final rule, similar to the proposal, defines these as steps that are individually attached to, or set into the walls of a manhole structure. Although the steps are individually set into or attached to the walls, manhole steps are not considered “individual-rung ladders” as stated in the final definition of “fixed ladders.” Manhole steps also do not include manhole entry

ladders which are portable and are covered in final § 1910.23, Ladders.

OSHA did not receive any comments on the proposed definition and adopts it with minor editorial changes.

Maximum intended load.

The final rule, similar to the proposal, defines this term as the total load (weight and force) of all employees, equipment, vehicles, tools, materials, and other loads the employer reasonably anticipates to be applied to a walking-working surface at any one time. The existing rule in § 1910.21(f)(19) and the construction standards for scaffolds, and stairways and ladders in §§ 1926.450(b) and 1926.1050(b) have similar definitions.

OSHA clarified the final definition in several ways. First, the proposed rule indicated that “maximum intended load” was also known as “designed working load.” OSHA is aware that “designed working load” is an outdated term; thus, the final definition deletes it. Second, the final definition adds language clarifying that the maximum intended load includes the combined total weight of the load, as well as the force of the load.

Third, the final definition adds “vehicles” to the list of potential components of a total load. Vehicles are found on many types of walking-working surfaces, and determinations of the maximum intended load must include the weight of vehicles, and the load being carried by the vehicles, applied to the walking-working surface.

Fourth, the final definition adds language clarifying that employers are responsible for determining the maximum load in terms of all equipment, vehicles, materials, workers, and other items they reasonably anticipate applying to a walking-working surface. Requiring that an employer know the maximum weight and force a walking-working surface can support and the total weight and force of the loads they reasonably anticipate applying to that surface is essential in safeguarding workers from harm,

e.g.,

falls from elevated surfaces and being struck by falling objects. OSHA believes the language added to the final definition clarifies the employers' responsibility.

Fifth and finally, the final definition adds the language “at any time” to make the definition consistent with other OSHA standards (

e.g.,

existing §§ 1910.21(f)(19); 1926.450(b); 1926.1050(b)).

OSHA did not receive any comments on the proposed definition and adopts it with the revisions discussed above.

Mobile.

The final rule, like the proposed rule, defines “mobile” as being manually propelled or movable. The existing rule defines “mobile” as manually propelled (existing § 1910.21(g)(12)). The proposed and final definitions update the existing rule to make it consistent with ANSI A14.7-2011 (Section 3), which specifies that “mobile” also means “moveable.” OSHA believes that the final definition also clarifies the definitions of “mobile ladder stand” and “mobile ladder stand platform.”

In the proposal, OSHA asked for comment on whether it is necessary to define a common term like “mobile,” but the Agency did not receive any comments. Therefore, OSHA adopts the proposed definition with one editorial clarification (replacing “and/or” with “or”).

Mobile ladder stand.

This term (also known as “ladder stand”) means a mobile, fixed-height, self-supporting ladder usually consisting of wheels or casters on a rigid base and steps that leads to a top step. The final definition explains that a mobile ladder stand also may have handrails and is designed for use by one worker at a time. A parenthetical in the definition refers to “ladder stand” as another name for mobile ladder stands; “ladder stand” is the term used for mobile ladder stands in existing §§ 1910.21(g)(9), 1926.450(b), and 1926.1050(b), and ANSI A14.7-2011 (Section 3).

The final definition clarifies the proposed rule and OSHA's existing definition for ladder stand in several ways. First, the final definition adds language clarifying that mobile ladder stands usually consist of wheels or casters on a rigid base, in addition to steps. This addition clearly distinguishes ladder stands from other types of ladders. Second, the final rule simplifies and clarifies the definition by using the term “steps” in place of “treads in the form of steps,” which is in the existing and proposed definitions. The term “step,” which final paragraph (b) also defines, is clear and well understood, and does not require further elaboration.

Third, the final definition deletes the proposed term “flat” used to describe ladder stand steps because it is not necessary. Final § 1910.23 establishes requirements for ladder stand steps (final §§ 1910.23(b)(1) and (b)(4)). OSHA did not receive any comments on the proposed definition and adopts it with the clarifications discussed above.

Mobile ladder stand platform.

The final rule defines this term as a mobile, fixed-height, self-supporting unit having one or more standing platforms that are provided with means of access or egress. Existing OSHA standards do not include or define the term “mobile ladder stand platforms.”

Frequently employers use mobile ladder stand platforms to provide elevated standing or working surfaces for one or more employees.

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

The final definition is consistent with ANSI A14.7-2011, although the ANSI standard, like the proposed rule, includes the definition of mobile ladder stand. OSHA did not receive any comments on the proposed definition and finalizes the definition with minor clarifications.

Open riser.

The final rule, which is similar to existing § 1910.21(b)(3) and the proposed rule, defines “open riser” as a gap or space between treads of stairways that do not have upright (vertical) or inclined members (risers).

OSHA clarified the proposed definition slightly by adding terminology to the final definition that it used in the final definition of “riser.” This terminology specifies that, in addition to not having upright (vertical) members, stairways with open risers do not have inclined members. This revision makes the final definition consistent with ANSI/ASSE A1264.1-2007 (Section 2.11).

OSHA did not receive any comments on the proposed definition and adopts it with the clarifications discussed above.

Opening.

The final rule, similar to the proposed rule, defines this term as a gap or open space in a wall, partition, vertical walking-working surface, or similar surface that is at least 30 inches high and at least 18 inches wide, through which a worker can fall to a lower level.

As discussed in the definition of “hole,” the final rule simplifies and consolidates four terms in the existing rule that distinguish between openings and holes in walking-working surfaces. As mentioned, the term “opening” in the final rule refers to gaps or open spaces in areas that are generally vertical, such as walls and partitions. The final definition consolidates into one term the definitions of “wall hole” and “wall opening” in existing § 1910.21(a)(10) and (a)(11). This consolidation makes the final definition of “opening” consistent with the construction fall protection standard

(§ 1926.500(b)), one of OSHA's stated goals of the final rule. OSHA believes that having consistent general industry and construction definitions will facilitate compliance with the final rule. The final definition also is nearly identical to the definition of “opening” in ANSI/ASSE A10.18-2012 (Section 2.9).

Consistent with the Plain Writing Act of 2010, the final definition substitutes “open space” for “void” to make the term easier to understand.

OSHA did not receive any comments on the proposed definition and adopts the term as discussed above.

Personal fall arrest system.

This is a new term OSHA added to subpart D in the final rule and means a system used to arrest a worker's fall from a walking-working surface if one occurs. The final definition explains that a personal fall arrest system consists of a body harness,

anchorage, connector, and a means of connecting the body harness and anchorage, such as a lanyard, deceleration device, lifeline, or a suitable combination of these. A definition for personal fall arrest systems was provided in proposed subpart I in § 1910.140 (75 FR 29147). Because the term is used in final subpart D, and OSHA believes the term is integral to understanding the final rule, the Agency decided to include the same definition in subpart D.

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

The final definition is consistent with OSHA's construction standards for scaffolds and fall protection in §§ 1926.450(b) and 1926.500(b), respectively, and ANSI/ASSE Z359.0-2012 (Section 2.98). See the preamble to final § 1910.140 for further discussion and comments on personal fall arrest systems.

Personal fall protection system.

This is a new term OSHA added to subpart D in the final rule and means a system (including all components) an employer uses to provide protection from falling or to safely arrest a worker's fall if one occurs. The final definition identifies examples of personal fall protection systems, including personal fall arrest systems, travel restraint systems, and positioning systems.

Personal fall protection systems have the following components in common: An anchorage, body support (

i.e.,

body harness or body belt), and connectors (

i.e.,

means of connecting the anchorage and body support).

A definition for personal fall protection systems was provided in the proposed rule, in proposed § 1910.140 (75 FR 29147). Because the term is used in final subpart D, and OSHA believes the term is integral to understanding the final rule, the Agency decided to include the same definition in subpart D. The requirements for, and comments on, personal fall protection systems are in final § 1910.140, Personal fall protection systems.

Platform.

In the final rule, like the proposal, a platform is defined as a walking-working surface that is elevated above the surrounding area. OSHA drew the proposed and final definitions from existing § 1910.21(a)(4) and the construction scaffold standard in § 1926.450(b). The final rule is consistent with the definition in ANSI/ASSE A1264.1-2007.1-2007 (Section 2.14).

OSHA did not receive any comments on the proposed definition and adopts it as proposed with a minor editorial revision.

Portable ladder.

The final rule, like the proposal, defines this term as a ladder that can readily be moved or carried, and usually consists of side rails joined at intervals by steps, rungs, or cleats. The definition in the final rule is consistent with the definition of portable ladder in ANSI A14.1-2007 (Section 4), ANSI A14.2-2007 (Section 4), and ANSI A14.5-2007 (Section 4).

The final rule clarifies the definition by deleting the language “rear braces” from the proposed definition to eliminate any confusion about what constitutes a portable ladder for the purposes of the final rule. Rear braces are a structural component of self-supporting portable ladders; however, as mentioned above, the final definition of portable ladder is not limited to those types of ladders.

OSHA notes that portable ladders include, but are not limited to, self-supporting, non-self-supporting, articulated, sectional, extension, special purpose, and orchard ladders. OSHA believes that the term portable ladders should be widely understood by employers.

OSHA received one comment on the proposed definition. Virginia Ruiz, representing California Rural Legal Assistance Foundation and Farmworker Justice, urged OSHA to cover agriculture operations in the final rule (Ex. 201). In her comment, Ms. Ruiz pointed out that proposed revisions to the California general industry portable-ladder standards (Title 8 CCR, Sections 3276, 3277, 3278, 3287, and 3413) cover special-purpose orchard and fruitpickers' ladders (Ex. 201). For further discussion on the inclusion of agriculture operations in subpart D, see the discussion above in final paragraph (a), Scope.

Positioning system (work-positioning system).

This is a new definition OSHA added to subpart D in the final rule. It means a system of equipment and connectors that, when used with a body harness or body belt, allows an employee to be supported on an elevated vertical surface, such as a wall or window sill, and work with both hands free. Positioning systems also are called “positioning system devices” and “work-positioning equipment.”

The definition is the same as the definition in § 1910.140(b). The newly revised electric power generation, transmission, and distribution standard in § 1910.269, and the construction standard for fall protection in § 1926.500(b), also contain similar terms and definitions. The final definition also is consistent with ANSI/ASSE Z359.0-2012 (Section 2.120).

Although the proposed rule for subpart D used the term work-positioning system, the proposal did not define it. The Agency believes it is important to define positioning systems in final subpart D to ensure that employers and workers understand the meaning of this term as used in this subpart, most importantly that such systems do not arrest falls from elevated walking-working surfaces.

Qualified.

In the final rule, like in the proposal, “qualified” describes a person who, by possession of a recognized degree, certificate, or professional standing, or who by extensive knowledge, training, and experience has successfully demonstrated the ability to solve or resolve problems relating to the subject matter, the work, or the project. This definition is the same as the definition in the proposed rule and final § 1910.140(b), as well as several construction standards (§§ 1926.32(m); 1926.450(b)) and ANSI A10.32-2012 (Section 2.41).

The final definition, however, differs from the definition of “qualified person” in the general industry powered platforms standard (§ 1910.66, Appendix C, Section I(b)) and ANSI/ASSE Z359.0-2012. The § 1910.66 definition, for instance, requires that qualified persons have a degree or professional certificate, not only professional standing, plus extensive knowledge, training, and experience. OSHA explained in the proposed rule that to require qualified persons to meet the definition in the powered platforms standard would mean that the qualified person “would most likely need to be an engineer” (75 FR 28905).

Two stakeholders recommended that the Agency adopt the definition in

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

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

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

Two things have become commonly accepted—a competent person is one who has enough experience and knowledge to know when to call a qualified person. A qualified person is one who knows the technical and working practice aspects of the problem.

The problem we have had was how to limit the `I know, therefore I am a qualified person' (Ex. 206).

The final rule does not adopt the definition of “qualified person” in § 1910.66 appendix C. The definition of “qualified” in the final rule has been in use for years in the referenced construction standards. OSHA believes the definition is clear and employers understand it. In addition, OSHA believes that employers understand and can distinguish between qualified and competent persons.

With regard to the certification of anchorages, OSHA believes that the anchorage requirements in final §§ 1910.27 and 1910.140, combined with the final definition of “qualified” person, are adequate to ensure worker safety. OSHA notes that building owners are free to have their building anchorages certifie

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