Safety Standards for Fall Protection in the Construction Industry; Final Rule DEPARTMENT OF LABOR

SUMMARY: The Occupational Safety and Health Administration (OSHA)

hereby revises the construction industry safety standards which

regulate fall protection systems and procedures. These systems and

procedures are intended to prevent employees from falling off, onto or

through working levels and to protect employees from falling objects.

The final rule corrects problems which have arisen during

enforcement of the existing standards. In this final rule, OSHA either

maintains or increases the requirements for protection from those

hazards, but does so using more performance-oriented criteria where

possible, rather than specification-oriented language. The final rule

also consolidates and simplifies many of the existing provisions. This

rulemaking is another step in OSHA's plan to review its safety

standards and to revise them as necessary to provide safer working

conditions without imposing unnecessary burdens.

In addition, the final rule makes one change to a provision in the

Occupational Safety and Health Standards for General Industry. In

particular, Sec. 1910.269--Electric Power Generation, Transmission and

Distribution; Electrical Protective Equipment which contains a

requirement in paragraph (f)(2) that personal fall arrest equipment

meet the requirements of subpart E of Part 1926. That provision has

been revised to require the equipment to meet the requirements of

revised subpart M of Part 1926.

EFFECTIVE DATE: This final rule becomes effective February 6, 1995.

ADDRESSES: In compliance with 28 U.S.C. 2112(a), the Agency designates

for receipt of petitions for review of the standard, the Associate

Solicitor for Occupational Safety and Health, Office of the Solicitor,

Room S-4004, U.S. Department of Labor, 200 Constitution Avenue NW.,

Washington, DC 20210.

FOR FURTHER INFORMATION CONTACT: Mr. James Foster, U.S. Department of

Labor, Occupational Safety and Health Administration, Office of

Information and Consumer Affairs, Room N3647, 200 Constitution Avenue,

NW., Washington, DC 20210, Telephone (202) 219-8148.

SUPPLEMENTARY INFORMATION: The principal authors of this final rule are

Barbara J. Bielaski, project officer, Office of Construction and Civil

Engineering Safety Standards; Jens Svenson, Office of Regulatory

Analysis; Stephen Jones, Office of the Solicitor.

I. Background

Congress amended the Contract Work Hours Standards Act (40 U.S.C.

327 et seq.) in 1969 by adding a new section 107 (40 U.S.C. 333) to

provide employees in the construction industry with a safer work

environment and to reduce the frequency and severity of construction

accidents and injuries. The amendment, commonly known as the

Construction Safety Act (CSA) [P.L. 91-54; August 9, 1969],

significantly strengthened employee protection by requiring the

promulgation of occupational safety and health standards for employees

of the building trades and construction industry working on Federally-

financed or Federally-assisted construction projects. Accordingly, the

Secretary of Labor issued Safety and Health Regulations for

Construction in 29 CFR Part 1518 (36 FR 7340, April 17, 1971) pursuant

to section 107 of the Contract Work Hours and Safety Standards Act.

The Occupational Safety and Health Act (OSH Act) (84 Stat. 1590; 29

U.S.C. 651 et seq.), was enacted by Congress in 1970 and authorized the

Secretary of Labor to adopt established Federal standards issued under

other statutes, including the Construction Safety Act, as occupational

safety and health standards. Accordingly, the Secretary of Labor

adopted those Construction Standards, which had been issued under the

Construction Safety Act in 29 CFR Part 1518, as OSHA standards in

accordance with section 6(a) of the OSH Act (36 FR 10466, May 29,

1971). The Safety and Health Regulations for Construction were

redesignated as Part 1926 later in 1971 (36 FR 25232, December 30,

1971).

OSHA adopted several regulations related to fall protection under

section 6(a) of the OSH Act. In particular, the Agency adopted the

standards which currently appear in subpart E, Personal Protective

Equipment, (including Sec. 1926.104--Safety Belts, Lifelines, and

Lanyards and Sec. 1926.105--Safety Nets) and in subpart M, Floor and

Wall Openings and Stairways. Subpart M has been amended several times

under section 6(b) of the OSH Act.

As part of OSHA's continuing standards evaluation program, and in

response to public comments, a complete review of subpart M was begun

in 1977. Since then, the Advisory Committee on Construction Safety and

Health (ACCSH) has reviewed draft revisions of subpart M a number of

times and has made many suggestions regarding the draft regulatory

language. The transcripts of the ACCSH meetings where draft revisions

to subpart M were discussed are part of the public record (Exhibit 1).

The ACCSH recommendations, and those of other interested parties, have

been carefully analyzed in connection with the present rulemaking. Many

of the changes in the revised standard reflect the suggestions of the

ACCSH and other interested persons. Specific ACCSH recommendations are

discussed in the appropriate sections of the Summary and Explanation,

below. Committee discussions that either were inconclusive or did not

produce a specific recommendation have also been considered, but are

not discussed in this preamble.

On November 25, 1986, OSHA proposed to revise virtually all of the

fall protection provisions of the construction industry standards and

to consolidate those requirements, except where specifically provided

otherwise, in subpart M [51 FR 42718]. The proposal set a period,

ending February 23, 1987, during which interested parties could submit

written comments and request a hearing. The Agency twice granted

commenters' requests for more time to submit comments and hearing

requests. OSHA first extended the comment and hearing request period to

June 1, 1987 [52 FR 5790, February 26, 1987] and then extended that

period to August 14, 1987 [52 FR 20616, June 2, 1987]. The Agency

received 162 comments on the proposal and several requests for a

hearing.

On January 26, 1988, OSHA announced that it would convene an

informal public hearing beginning on March 22, 1988, to elicit

additional information on specific issues related to fall protection,

scaffolds and stairways and ladders [53 FR 2048]. The hearing notice

also reopened the comment period regarding proposed subpart M until

March 8, 1988, for the limited purpose of obtaining additional

information on appropriate fall protection coverage for employees

engaged in steel erection activities. The Agency noted that the

information obtained would be used in development of a separate

proposed rule covering steel erection. OSHA received 22 comments in

response to the limited reopening of the comment period.

The informal public hearings were conducted on March 22-23, 1988,

with Administrative Law Judge Joel Williams presiding. At the close of

the hearings, Judge Williams set a period, ending May 9, 1988, for

hearing participants to submit additional comments and information.

OSHA received 15 submissions, including testimony and documentary

evidence, at the hearing. On August 11, 1989, Judge Williams certified

the rulemaking record, including the hearing transcript and all written

submissions to the docket, thereby closing the record for this

proceeding.

On August 5, 1992, OSHA reopened the rulemaking record (57 FR

34656) to consider new information submitted by the Precast/Prestressed

Concrete Institute (PCI) regarding the fall protection needs of

employees engaged in precast concrete construction. The PCI submissions

(Exs. 25-4 and 25-6) described some characteristic precast concrete

construction situations and alternative measures PCI believed employers

could take to provide fall protection for their employees in those

situations. The Agency solicited input on whether OSHA should allow

precast concrete construction employers to protect employees from fall

hazards by means other than guardrail systems, personal fall arrest

systems or safety net systems. The Agency also sought comments

regarding what criteria OSHA should set to determine the

appropriateness of using alternative measures and to determine if the

alternative measures are effectively minimizing fall hazards. The

comment period, which ended November 3, 1992, elicited 14 comments.

On March 29, 1993, the Agency again reopened the rulemaking record

(58 FR 16515) to provide additional time for the precast concrete

construction industry to comment on the issues raised in the August 5,

1992, notice. The March 29 notice also discussed the fall protection

needs of employees involved in residential construction, focusing on

the feasibility of protecting employees erecting roof trusses and

exterior wall panels with guardrails, personal fall arrest systems or

safety net systems. OSHA requested information regarding alternative

measures, or safe work practices, residential construction employers

can use to minimize fall hazards. The limited comment period, which

ended on May 28, 1993, elicited 28 comments.

A wide range of employees, businesses, trade associations, state

governments, and other interested parties contributed to the

development of this record. The Agency appreciates these efforts to

help OSHA develop a rulemaking record that provides a sound basis for

the promulgation of this final rule.

The Agency believes that, while the means of providing fall

protection are continually improving, there may be circumstances where

employers can demonstrate that compliance with certain fall protection

requirements would be infeasible; i.e., it would be impossible to

accomplish the work using conventional fall protection systems or it is

technologically impossible to use conventional fall protection systems,

or that those systems would create a greater hazard to employees. OSHA

has determined that revised subpart M is needed to address those

circumstances, encourage greater compliance by employers and employees,

and maximize employee protection from fall hazards. OSHA believes that

the clarified and revised language of the final rule will help

employers to understand and implement the requirements of subpart M,

resulting in improved employee protection. In addition, much of the

final rule has been written in more performance-oriented language. This

will make it easier for employers to provide the necessary protection

for their employees, since they will be able to select fall protection

measures which are compatible with the type of work being performed.

This project has been coordinated with other ongoing projects for

the revision of related general industry standards in 29 CFR Part 1910,

subpart D--Walking/Working Surfaces, [proposed rule published at 55 FR

13360, April 10, 1990] and 29 CFR Part 1910 subpart I--Personal

Protective Equipment (Fall Protection Systems), [proposed rule

published at 55 FR 13423, April 10, 1990] and with the proposed

rulemaking for the Shipyard Industry in 29 CFR 1915 subpart M--Fall

Protection [proposed rule published at 53 FR 48168, November 29, 1988].

Where appropriate, the 1910, 1915, and 1926 requirements will use the

same language to address similar hazards so employers will have clear

and consistent direction as to what is necessary to protect employees

from fall hazards.

In developing this final rule, OSHA has focused on requiring

employers to provide construction employees with a positive method of

protection against fall hazards wherever possible. At the same time,

the Agency has taken steps to allow alternatives to traditional,

conventional fall protection methods in situations where conventional

methods can be shown to be inappropriate or unreasonable. Some of the

alternative methods prescribed in revised subpart M represent

innovations which are necessary to deal with unique workplace

conditions. The record of this rulemaking indicates that these methods

have not been used long enough or widely enough to enable the Agency to

determine just how effective they will be throughout the construction

industry.

In this regard, OSHA intends to monitor the effectiveness of these

provisions carefully for the next several years, to make sure that they

are providing the necessary protection for construction workers. The

Agency will carefully review and examine its enforcement data, together

with any investigative reports and other information on accidents which

involve fall hazards. In addition, OSHA intends to work closely with

NIOSH in performing such data collection and analysis. Should the

available data indicate that the alternative methods are not providing

adequate fall protection to employees, the Agency will reevaluate the

standards and determine what changes, if any, are warranted.

II. Hazards Involved

Fall accidents resulting in injuries and fatalities continue to

occur at construction sites despite the promulgation of the OSHA

Construction Standards in 1971. OSHA's initial review of accident data

indicated that compliance with existing OSHA standards would have, in

general, prevented the mishaps. After a more complete review of

information derived from enforcement experience and public comments,

OSHA decided that certain existing provisions needed to be updated and

clarified, in order to improve employee protection. In addition, OSHA

decided to reorganize the existing fall protection requirements so that

employers could more readily determine what requirements they must

follow.

Precise fall hazard accident data for the entire construction

industry are not available. Falls are generally recorded by OSHA

according to the nature of the injury and the surface involved, but the

two categories have not been uniformly cross-referenced. However, based

upon the data which have been compiled, OSHA estimates that there are

at least 68,000 injuries due to falls from elevations covered under

subpart M occur every year, and 95 fatalities (Regulatory Impact and

Regulatory Flexibility Analysis, Section III).

The U.S. Department of Labor, based on data from the Bureau of

Labor Statistics, has listed falls as one of the leading causes of

traumatic occupational death, accounting for 8% of all occupational

fatalities in 1986. Data from NIOSH showed that from 1980-1985, falls

represented about 10% of all traumatic occupational deaths for which a

cause was identified, and that falls were shown to be one of the major

causes of injuries to construction workers. A NIOSH analysis of death

certificates from work related injuries over a 10-year period has made

it clear that falls are the leading cause of work related injury death

among construction workers (E. Lynn Jenkins, S.M. Kisner, D.E.

Fosbroke, et al. Fatal Injuries to Workers in the United States, 1980-

89; A Decade of Surveillance--National Profile, DHHS, NIOSH, 93-108,

August 1993).

An OSHA study involving 99 fall-related fatalities (Ex. 3-3)

suggests that virtually all of those deaths could have been prevented

by the use of guardrails, body belts, body harnesses, safety nets,

covers, or other means which would reduce employee exposure to the fall

hazard.

OSHA recognizes that such accidents are, generally, complex events,

involving a combination of factors. Accordingly, the Agency notes that

a number of human and equipment-related issues must be addressed to

protect employees from fall hazards. Among those issues are the

following:

The need to know where protection is required;

The selection of fall protection systems which are appropriate

for given situations;

The proper construction and installation of safety systems;

The proper supervision of employees;

The implementation of safe work procedures; and

The proper training in the selection, use, and maintenance of

fall protection systems.

Each of these topics is covered in revised subpart M. The final

rule requires employers to identify and evaluate fall hazards, and it

includes specific training requirements that clarify the existing

general training provisions of Sec. 1926.21 as they apply to fall

protection. The final rule also makes it clear what an employer must do

to provide fall protection for employees. Finally, the final rule

relocates fall protection requirements from other subparts in the

construction regulations, and places them in subpart M. For example,

fall protection for workers on steep roofs was addressed by provisions

in existing subpart L, but now will be addressed in revised subpart M.

Based on its review of the incident data, OSHA has concluded that

fall hazards pose a significant risk of death or serious injury for

construction employees and that compliance with the requirements of

revised subpart M is reasonably necessary to protect employees from

those hazards. For a further discussion of accident rates and the

significance of fall hazards in construction employment, see Section

IV. Summary of the Regulatory Impact Analysis and Section V. Statutory

Considerations.

Certain proposed provisions have been reorganized in the final

rule. The reorganized provisions are as follows:

Reorganization Table

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

New Sec. no. and/or

paragraph Proposed Sec. no. and/or paragraph

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

Sec. 1926.501

(b)(11) (c)

(b)(12)

(b)(13)

(b)(14) (d)

(b)(15)

(c) (e)

Sec. 1926.502

(b)(10) (b)(11)

(b)(11) (b)(12)

(b)(12) (b)(13)

(b)(13) (b)(14)

(b)(14) (b)(15)

(b)(15)

(d)(1) (d)(9)

(d)(2) (d)(10)

(d)(3) (d)(16)

(d)(4)

(d)(5)

(d)(6) (d)(17), (18) and (19)

(d)(7)

(d)(8) (d)(14)

(d)(9) (d)(13) and (15)

(d)(10) (d)(11)

(d)(11) (d)(3)

(d)(12) (d)(13) partial

(d)(13) (d)(13) partial

(d)(14)

(d)(15) (d)(12)

(d)(16) (d)(4), (5), and (6)

(d)(17) (d)(7)

(d)(18) (d)(1)

(d)(19) (d)(2)

(d)(20)

(d)(21) (d)(20)

(d)(22) (d)(8)

(d)(23) (d)(21)

(d)(24) (d)(22)

(e)(2) (e)(3)

(e)(3)

(e)(4) (e)(2)

(e)(5) (e)(4)

(e)(6)

(e)(7)

(e)(8)

(e)(9) (e)(5)

(e)(10)

(g)(1) (g)(1) and (g)(5)

(g)(2) (g)(2) and (g)(5)

(h)(4)

(i)(4)

(j)(8)

(k)(1)-(10)

Sec. 1926.503

(b)

(c) (a)(2)

Appendix D

Appendix E

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

III. Summary and Explanation of the Final Rule

The following discussion explains how the final rule corresponds to

or differs from the proposed and the existing standards, and how the

comments and testimony presented on each provision influenced the

drafting of the final rule. Except where otherwise indicated, proposed

provisions which did not elicit comment have been promulgated as

proposed, for the reasons stated in the preamble to the proposed rule.

Subpart M--Fall Protection

OSHA has changed the title of subpart M from ``Floor and Wall

Openings, and Stairways'' to ``Fall Protection.'' The revised title

reflects both the relocation of the provisions for stairways to subpart

X, which was published as a final rule on November 14, 1990 (55 FR

47660), and the Agency's decision to consolidate most requirements for

fall protection in construction in revised subpart M. OSHA has made

subpart M the comprehensive reference for construction fall protection

standards by revising and relocating the general requirements in

existing Sec. 1926.104--Safety belts, lifelines, and lanyards; existing

Sec. 1926.105--Safety nets; and the pertinent definitions in existing

Sec. 1926.107 to subpart M.

OSHA is also deleting Sec. 1926.651(l)(2), which requires fall

protection at ``remotely located excavations,'' and

Sec. 1926.701(f)(2), which requires fall protection for employees

installing reinforcing steel more than 6 feet (1.8m) above adjacent

working surfaces, because the pertinent hazards are covered by

Secs. 1926.501(b)(7) and (b)(5), respectively. Another excavation

provision, Sec. 1926.651(l)(1), is being revised to be consistent with

Sec. 1926.501(b)(6) of the final rule. All three of the provisions

noted above pertain to fall protection. In addition, the provision of

existing Sec. 1926.105(a), has been relocated to Sec. 1926.753 of

subpart R (steel erection) to maintain existing coverage pending

rulemaking to revise the fall protection requirements for steel

erection work. A more complete discussion of the revised and relocated

provisions is provided later in this document.

Sec. 1926.500 Scope, Application, and definitions Applicable to This

Subpart

Paragraph (a) of Sec. 1926.500 states the scope and application of

subpart M. Paragraph (a)(1) states that the fall protection

requirements of subpart M apply to all construction workplaces, except

where another subpart of part 1926 specifies what fall protection

systems must be used and sets the criteria for those fall protection

systems. OSHA notes there are some activities that will be classified

as either general industry or construction depending on other

activities occurring at the same time or same site. For example, when

surface preparation work and sandblasting work are being performed in

connection with painting activities or other construction activities,

then these two activities are considered construction work and

employers engaged in these activities must follow the requirements of

subpart M as it pertains to fall hazards associated with surface

preparation and sandblasting. On the other hand, when these activities

are conducted as part of general maintenance work, the fall protection

requirements of the general industry standards (part 1910) would apply.

Paragraph (a)(1), which is essentially the same as proposed

Sec. 1926.500(a)(1), also states that the provisions of subpart M do

not apply when the employer establishes that employees are only

inspecting, investigating, or assessing workplace conditions prior to

the actual start of the work or after work has been completed. OSHA has

set this exception because employees engaged in inspecting,

investigating and assessing workplace conditions before the actual work

begins or after work has been completed are exposed to fall hazards for

very short durations, if at all, since they most likely would be able

to accomplish their work without going near the danger zone. Also, the

Agency's experience is that such individuals who are not continually or

routinely exposed to fall hazards tend to be very focused on their

footing, ever alert and aware of the hazards associated with falling.

These practical considerations would make it unreasonable, the Agency

believes, to require the installation of fall protection systems either

prior to the start of construction work or after such work has been

completed. Such requirements would impose an unreasonable burden on

employers without demonstrable benefits.

OSHA notes that the operations covered by paragraph (a)(1) are

normally conducted in good weather, that the nature of such work

normally exposes the employee to the fall hazard only for a short time,

if at all, and that requiring the installation of fall protection

systems under such circumstances would expose the employee who installs

those systems to falling hazards for a longer time than the person

performing an inspection or similar work. In addition, OSHA anticipates

that employees who inspect, investigate or assess workplace conditions

will be more aware of their proximity to an unprotected edge than, for

example, a roofer who is moving backwards while operating a felt laying

machine, or a plumber whose attention is on overhead pipe and not on

the floor edge.

Some commenters (Exs. 2-15, 2-31, and 2-56) expressed concern

regarding the proposed exception. In particular, one commenter (Ex. 2-

31) said ``the exception . . . will create havoc for enforcement

agencies.'' The commenter further stated that ``superintendents,

foremen, and other company officials will never have to be protected

during the entire job, because they will say that they are only

inspecting.'' Another commenter (Ex. 2-15) suggested that OSHA grant

only a conditional exception. It would then allow the exception only

where exposures to falling are minimal at most or nonexistent. In

addition, only experienced, responsible persons trained in the hazards

associated with inspections, investigations, etc., would be allowed to

work without fall protection. One commenter (Ex. 2-56) disagreed with

the proposed exclusion, saying:

These employees are exposed to unique hazards since their

functions are to determine if protection systems are adequate,

deteriorated, etc. To allow such employees to work unprotected will

promote the not wearing or using such protection by others.

Based on the comments received, OSHA recognizes that proposed

Sec. 1926.500(a)(1) requires clarification. Therefore, OSHA has decided

to reword the provision to make it clear that the exclusion only

applies when the employer establishes that employees are inspecting,

investigating, or assessing workplace conditions prior to the actual

start of work or after the work has been completed. It was OSHA's

intent when it proposed this provision that the exclusion would only

apply at the two times stated above, not during the period when

construction work is being performed. As explained in the preamble to

the proposed rule, the exception would apply where an employee goes

onto a roof in need of repair to inspect the roof and to estimate what

work is needed. During such an inspection, guardrails, body belts, body

harnesses, safety nets, or other safety systems would not be required.

However, if inspections are made while construction operations are

underway, all employees who are exposed to fall hazards while

performing these inspections must be protected as required by subpart

M. The intent of the provision is also to recognize that after all work

has been completed, and workers have left the area, there may be a need

for building inspectors, owners, etc. to inspect the work. OSHA

recognizes that in these situations, all fall protection equipment,

such as perimeter guardrail systems, may have been removed. OSHA is not

requiring the installation of the systems for a second time for

inspectors, because the Agency recognizes it would be unreasonably

burdensome to require the reinstallation of fall protection equipment

after all the work has been completed.

Paragraph (a)(2), like the proposal, notes that some subparts

within part 1926 aside from subpart M contain fall protection

requirements. Those other provisions, however, are not comprehensive.

Therefore, when an employee is exposed to a falling hazard, such as

that of falling more than 6 feet to a lower level, which is not

specifically addressed in another subpart, OSHA intends that the

general provisions of subpart M apply. For example, while subpart N

contains requirements for fall protection when certain cranes are used,

it does not address other equipment or workplace conditions otherwise

covered by subpart N which may also expose employees to a fall hazard.

Also, paragraph (a)(3) provides that if another subpart requires the

use of specified fall protection systems but does not set criteria

which those systems must meet, the criteria set in subpart M apply. For

example, subpart L--Scaffolds, requires that employers provide

guardrails and safety belts (body belts) when employees are working on

scaffolds. Subpart L sets criteria for the use of guardrail systems on

scaffolds, but does not set criteria for the use of body belts. Under

those circumstances, body belts used by employees working on scaffolds

must satisfy the criteria in subpart M, while guardrails would be

required to meet the criteria in subpart L.

Aside from subpart L, the subparts in part 1926 that address the

subject of fall protection are subparts N, R, S, V and X.

A brief summary of the fall protection topics covered for each of

the above-mentioned subparts is listed below.

Subpart N--Cranes and Derricks. Requirements to have fall

protection for employees working on certain cranes and derricks are

contained in subpart N.

Subpart R--Steel Erection. Requirements to have fall

protection for employees engaged in the construction of skeleton steel

buildings are contained in subpart R.

Subpart S--Underground Construction, Caissons, Cofferdams,

and Compressed Air. Requirements to have fall protection on specified

pieces of equipment used in under-ground construction operations are

contained in subpart S.

Subpart V--Power Transmission and Distribution.

Requirements to have fall protection for employees engaged in the

construction of electric transmission and distribution lines and

equipment are contained in subpart V.

Subpart X--Stairways and Ladders. Requirements to have

fall protection for employees working on stairways and fixed ladders

are contained in subpart X. Subpart X already references the current

fall protection criteria set out in subpart M, and that reference will

now incorporate the revised criteria in Sec. 1926.502 of this final

rule.

OSHA notes that the proposed rule also identified subpart O as

containing requirements for fall protection for employees on pile

driving equipment. OSHA has not included this exclusion in the final

rule because subpart O does not actually contain a requirement to have

fall protection equipment; rather, it only contains a requirement that

attachment points be provided to facilitate attachment of personal fall

arrest equipment.

OSHA received several comments related to proposed paragraph

(a)(2). Two commenters (Exs. 2-19 and 2-56) indicated some confusion

regarding the extent to which employees engaged in steel erection

activities would be covered by the requirements of proposed subpart M.

Based on the apparent confusion and the Agency's recognition that a

complete revision of subpart R--Steel Erection, was needed, OSHA

decided to defer consideration of changing current fall protection

requirements as they apply to steel erection of buildings to the

subpart R rulemaking. However, as noted in the hearing notice (53 FR

2048) information gathered through the subpart M rulemaking on fall

protection for steel erection will be used to help the Agency develop

proposed revisions to subpart R. Therefore, pending completion of the

subpart R rulemaking, OSHA will continue to apply the existing fall

protection requirements of part 1926 to steel erection operations. To

this end, as noted above, OSHA is relocating existing Sec. 1926.105(a)

to subpart R as Sec. 1926.753. This provision will remain in subpart R

until a final rule for revised subpart R becomes effective. In this

way, OSHA ensures that employers engaged in steel erection activities

currently covered by the existing, unrevised fall protection

requirements remain covered until the rulemaking on subpart R is

completed.

Section 1926.500(b) lists and defines all major terms used in the

final rule. Many of the proposed terms and definitions have been

promulgated unchanged or with only editorial revisions. These terms

include ``dangerous equipment,'' ``equivalent,'' ``failure,''

``guardrail system,'' ``hole,'' ``low-slope roofs,'' ``mechanical

equipment,'' ``opening,'' ``overhand bricklaying and related work,''

``positioning device system,'' ``roof,'' ``safety monitoring system,''

``steep roof,'' ``work area.'' The proposed terms and definitions which

did not elicit comment and which are being promulgated without change

or with only editorial changes are not discussed below. However, all

other terms and definitions, including any revisions, additions, and

deletions, are discussed below.

Also, OSHA notes that several commenters indicated that they had

already provided comments on terms used in relation to personal fall

arrest systems and positioning device systems covered by OSHA's

proposed rule for powered platforms (Docket S-700A), and requested that

OSHA consider their comments in regard to the proposed terms and fall

protection requirements of subpart M. Those commenters included the

Industrial Safety Equipment Association (ISEA), Research and Trading

Corporation (RTC), and the ANSI Z359 Committee Chairman (testifying on

behalf of the U.S. Technical Advisory Group, an advisory group

representing Government and private interests on personal equipment for

protection against falling, ISO/TC94/SC4 (USTAG) in the powered

platform rulemaking) (Exs. 2-23, 2-36, 2-50, and 3-13).

OSHA has considered those comments and has reviewed the powered

platforms rulemaking record (final rule, Sec. 1910.66, published July

28, 1989; 54 FR 31408), in general, for information relating to fall

protection. Based on that review, OSHA has decided that those terms

defined in the powered platforms rule which relate to personal fall

arrest systems will also be defined in subpart M, where such terms are

used in the final rule. Consequently, definitions for the following

terms have been added to subpart M: ``anchorage,'' ``buckle,''

``connector,'' ``free fall,'' ``rope grab,'' ``self-retracting

lifeline/lanyard,'' and ``snap-hook.'' These terms were used in the

proposed rule and had the same meaning as provided in the definitions

used in this final rule. OSHA believes this action will promote

consistency throughout OSHA standards with regard to fall protection

and OSHA intends to use the same terminology and definitions in its

rules covering the same type of equipment. The newly defined terms and

proposed terms that elicited comment are discussed below.

``Anchorage.'' This term is defined to be a secure point of

attachment for lifelines, lanyards, or deceleration devices.

``Body belt/harness system.'' The term ``body belt/harness system''

has been changed to ``personal fall arrest system'' for the sake of

uniformity with the general industry standard for powered platforms.

The term ``personal fall arrest system'' is discussed in detail below.

``Body harness.'' Although there were no comments on the proposed

definition of this term, OSHA has reworded the definition so that it is

identical to the definition of ``body harness'' in the final rule on

powered platforms.

Again, the purpose of this rewording is to promote consistency in

the OSHA regulations. The rewording does not alter the meaning of the

term as proposed.

``Buckle.'' This term is defined to mean any device for holding the

body belt or body harness closed around the employee's body. The ISEA

(Ex. 2-23) suggested that a definition for the term buckle was needed.

OSHA agrees and has defined the term in this final rule, using the

language from the final rule on powered platforms. In the final rule on

powered platforms, OSHA stated the following, which OSHA believes is

also applicable to this rulemaking (See 54 FR 31446):

One comment was received on the definition of ``buckle''

[citation omitted] which suggested that the term was superfluous and

should be addressed in a separate national consensus standard for

body support systems. OSHA disagrees since the term is used in the

OSHA standard and there is not yet a national consensus standard for

body support systems which includes this term.

``Built-up roofing.'' OSHA proposed to define the term ``built-up

roofing'' to mean a weatherproofing cover, applied over roof decks,

consisting of a liquid-applied system, a single-ply system, or a

multiple-ply system. Liquid-applied systems generally consist of

silicone rubber, plastics, or similar material applied by spray or

roller equipment. Single-ply systems generally consist of a single

layer of synthetic rubber, plastic or similar materials, and often, but

not always, a layer of adhesive. Multiple-ply systems generally consist

of layers of felt and bitumen. Any of the systems may be covered with a

layer of mineral aggregate.

OSHA has removed this term from the definition paragraph because

the Agency has determined, as discussed below in relation to

Sec. 1926.501(b)(10), that there is no need to provide for different

fall protection requirements for low-slope roofs based on the type of

work (e.g., built-up roofing) being performed.

``Connector.'' This term is used in the final rule in place of the

term ``hardware'' which was used in the proposed rule. It is defined to

mean a device which is used to couple (connect) parts of the personal

fall arrest system or positioning device system together. It may be an

independent component of the system, such as a carabiner, or it may be

an integral component of part of the system (such as a buckle or dee-

ring sewn into a body belt or body harness, or a snap-hook spliced or

sewn to a lanyard or self-retracting lanyard). The term and definition

in the final rule are the same as those in the powered platforms final

rule [54 FR 31470], in which OSHA stated the following, which OSHA

believes is applicable to this rulemaking (See 54 FR 31446):

OSHA is replacing the proposed term ``hardware'' with the term

``connector.'' Two commenters stated that ``hardware'' was too broad

and one suggested that the term ``connector'' be used instead

[citations omitted]. OSHA agrees with these suggestions, notes that

``connector'' connotes the specific function at issue, has deleted

the term ``hardware,'' replaced it with the term ``connector'' and

has expanded the definition.

``Controlled access zone'' (CAZ). This term is used to describe a

work area designated and clearly marked in which certain types of work

(such as overhand bricklaying work) may take place without the use of

conventional fall protection systems--guardrail systems, personal fall

arrest systems, or safety net systems--to protect the employees working

in the zone. Access to the zone must be controlled to limit the number

of workers exposed to fall hazards. OSHA observes that safety

monitoring systems may be required where a CAZ is used as part of a

fall protection plan (see Sec. 1926.502(k)). The proposed term

``control zone'' was essentially identical.

One commenter (Ex. 2-157) stated ``the definition of control zone

in [proposed] Sec. 1926.502(g) does not appear to be applicable to

scaffolds. OSHA acknowledges that a controlled access zone would not be

used on a scaffold, although scaffolds might be used within a

controlled access zone. Requirements to have fall protection on

scaffolds both within and outside of controlled access zones are found

in subpart L--Scaffolds.

Another commenter, the Mason Contractors Association of America

(Ex. 2-95), suggested that the term ``control zone system'' used in the

proposal should be changed to ``controlled access zone'' (CAZ) to more

effectively and correctly describe the function of a control zone. OSHA

agrees with the commenter and has changed the term. There were no other

substantive comments on the definition.

OSHA notes that the use of a controlled access zone is permitted

only in Overhand bricklaying and related work, (Sec. 1926.501(b)(9))

and as part of a Fall Protection Plan (see Sec. 1926.502(k) for Leading

edge work (Sec. 1926.502(b)(2)(i)); Precast concrete work

(Sec. 1926.501(b)(12)); or residential construction work

(Sec. 1926.501(b)(13)).

``Deceleration device.'' This term describes a piece of equipment

used to bring a falling employee to a stop without injury. The proposed

definition of ``deceleration device'' has been revised to be consistent

with the definition used in OSHA's final rule on powered platforms [54

FR 31470]. There were several comments received on the proposed

definition and in response to Issue #21. In this issue, OSHA discussed

the use of the term ``deceleration device'' in the proposals for both

the construction fall protection requirements of subpart M and the fall

protection requirements for the general industry standard on powered

platforms, subpart F. Bristol Steel and the NEA (Exs. 2-12 and 2-43)

commented that the term is sufficiently descriptive. The ISEA, the Mine

Safety Appliance Company (MSA), and the SSFI (Exs. 2-23, 2-35, and 2-

89) suggested rewording the definition because they viewed it as

misleading and confusing. Other commenters, including the National

Constructors Association and the BCMALU (Exs. 2-45 and 2-46), suggested

replacing the term with ``shock absorber'' or ``fall arrester,''

respectively. RTC (Ex. 2-36) and the ANSI Z359 Committee/USTAG

representative (Ex. 2-50) referred OSHA to their comments on the

proposal for powered platforms. The following discussion from the final

rule on powered platforms [54 FR 31446] covers those comments:

Comments were received on the definition of ``deceleration

device'' [citations omitted]. It was suggested that this term be

eliminated and replaced with three terms, ``fall arrester,''

``energy absorber,'' and ``self-retracting lifeline/lanyard''

because the examples listed by OSHA in its proposed definition of

deceleration device serve varying combinations of the function of

these three suggested components. In particular, it was pointed out

that a rope grab may or may not serve to dissipate a substantial

amount of energy in and of itself. The distinction that the

commenter was making was that some components of the system were

``fall arresters'' (purpose to stop a fall), others were ``energy

absorbers'' (purpose to brake a fall more comfortably), and others

were ``self-retracting lifeline/lanyards'' (purpose to take slack

out of the lifeline or lanyard to minimize free fall). OSHA notes,

however, that it is difficult to clearly separate all components

into these three suggested categories since fall arrest (stopping)

and energy absorption (braking) are closely related. In addition,

many self-retracting lifeline/lanyards serve all three functions

very well (a condition which the commenter labels as a ``subsystem''

or ``hybrid component''). OSHA believes that the only practical way

to accomplish what is suggested would be to have test methods and

criteria for each of the three component functions. However, at this

time, there are no national consensus standards or other accepted

criteria for any of the three which OSHA could propose to adopt.

In addition, OSHA's approach in the final standard is to address

personal fall arrest equipment on a system basis. Therefore, OSHA

does not have separate requirements for ``fall arrestors,'' ``energy

absorbers'' and ``self-retracting lifeline/lanyards'' because it is

the performance of the complete system, as assembled, which is

regulated by the OSHA standard. OSHA's final standard does not

preclude the voluntary standards writing bodies from developing

design standards for all of the various components and is supportive

of this undertaking * * *.

OSHA has, however, used the commenters' suggestions to clarify

the definition of ``deceleration device,'' as well as further

clarify the test methods applicable to the various assembled systems

* * *.

After a careful review of the comments received and for the reasons

above, OSHA has determined that the term ``deceleration device'' is

appropriate, but the definition has been revised to clarify that

deceleration devices serve to dissipate a substantial amount of the

energy imposed on an employee during fall arrest or otherwise limit the

energy imposed on an employee during fall arrest. The definition

mentions several examples of mechanisms which accomplish this function.

``Deceleration distance.'' This term is used to describe the

distance a falling employee travels (excluding lifeline elongation and

free fall distance). Aside from some editorial revision, the definition

in the final rule is identical to the proposed definition. The ISEA and

the MSA (Exs. 2-23 and 2-35) commented that the proposed definition,

just as the proposed definition in powered platforms, could cause

confusion, such as the mistaken belief that deceleration distance was

the total fall distance. OSHA agrees with the commenters and has

reworded the definition of deceleration distance to remove the point of

confusion. In particular, OSHA has eliminated the words ``excluding

lifeline elongation between those two points'' that appeared in the

subpart M proposed rule. The definition in the final rule is consistent

with the definition in Sec. 1910.66, powered platforms. OSHA has also

considered the comments which were provided to the powered platform

rulemaking record (Ex. 3-13). OSHA's discussion of those comments in

the final rule on powered platforms [54 FR 31447] is applicable here

and appears below:

Several comments were received on the proposed definition for

``deceleration distance'' [citations omitted]. Concern was expressed

by all commenters that it was only possible to evaluate the stopping

distance for the device itself once it was activated. OSHA agrees

with these comments and has revised the definition of deceleration

distance to exclude lifeline elongation and any free fall distance

which occurs before the device is activated. In addition,

suggestions for clarification of the definition were accepted.

``Failure.'' This term describes load refusal, breakage, or

separation of component parts where the ultimate strength has been

exceeded. Four commenters (Exs. 2-16, 2-23, 2-45, and 2-56) expressed

concern regarding the definition of the term ``failure.'' Two of these

commenters, (Exs. 2-16 and 2-23), noted that the term ``failed'' as

used in proposed paragraph (c) of the proposed non-mandatory Appendix

C, was inconsistent with the proposed definition of ``failure.'' OSHA

agrees, and has both deleted the term from the Appendix and reworded

the Appendix to remove the potential for confusion. Additionally, a

commenter (Ex. 2-56) asked, ``what is load Refusal?'' which is a phrase

used as part of the definition of the term ``failure.'' OSHA uses the

phrase in a situation where whatever is supposed to support the load is

refusing to do so--it is not performing its intended purpose. Hence, it

has failed its purpose and is not supporting the load.

OSHA has determined that as clarified above, the proposed

definition of ``failure'' is appropriate for the final rule.

``Force factor.'' The term force factor was defined in the proposed

rule. The term has been deleted in the final rule because, as explained

in the final rule on powered platforms [54 FR 31447], the comments and

testimony suggested that the term ``force factor'' was confusing, even

to systems experts. The Agency also noted that the term would not be

needed if the factor was incorporated into the test methods. OSHA

agreed with those commenters and deleted the term ``force factor'' from

the final rule on powered platforms, while incorporating the concept in

the test methods section. OSHA has taken the same action in this final

rule.

``Free fall'' means the act of falling before the personal fall

arrest system begins to apply force to arrest the fall. OSHA did not

propose a definition for this term. The term and definition in the

final rule are identical to the ones used in the final rule on powered

platforms [54 FR 31470]. OSHA has determined that the inclusion of this

definition is appropriate for purposes of clarity and to provide

guidance consistent with that set in the powered platforms standard.

OSHA believes that the following language which appeared in the final

rule on powered platforms (54 FR 31447) is applicable to this

rulemaking:

One comment was received on the proposed definition of free fall

[citation omitted] suggesting that the phrase ``personal fall arrest

system'' should be used as well as the definition being further

clarified to define when the free fall period ends. OSHA agrees with

this suggestion and has revised the definition of free fall

accordingly.

``Free fall distance.'' This term is used to describe the vertical

distance an employee moves during a fall before a deceleration device

is activated. Although there were no comments on the proposed

definition, OSHA has reworded the definition to be consistent with the

definition used in the final rule for powered platforms [54 FR 31447

and 31470]. The rewording does not substantively alter the meaning of

the term, as proposed.

``Hole.'' This term is used to describe a void or gap 2 inches (5.1

cm) or more in its least dimension in a floor, roof, or other walking/

working surface. The definition of this term is consistent with the

proposed definition, with only minor editorial revision (the words void

or gap are used instead of the words hole or opening). The existing

standard defines holes and openings as separate topics; however, the

treatment of each is essentially the same. The existing rule defines a

floor hole as an opening less than 12 inches but more than 1 inch or

more in its least dimension through which materials may fall; and

defines a floor opening as a hole 12 inches or more in its least

dimension through which persons may fall. To eliminate confusion, OSHA

proposed to use the word ``hole'' to describe all voids and gaps (holes

and openings) in floors, roofs, and other walking/working surfaces. The

word ``opening'' is used later to describe voids and gaps in vertical

surfaces such as walls and partitions.

There were several comments on the proposed definition of

``holes.'' One commenter (Ex. 2-140) thought the proposed definition of

the term ``hole'' was too restrictive, assuming that the ``purpose is

to prevent workers from falling through to lower areas.'' Other

commenters (Exs. 2-16, 2-47, and 2-92) requested that OSHA clarify the

definition of holes because it was unclear whether OSHA's intent was to

regulate holes through which material or persons could fall. OSHA

observes that its intent is to address all hazards associated with

holes, including employees falling through and stepping into holes, as

well the hazards of objects falling through holes onto employees. As

noted in the proposal, OSHA chose the 2-inch least dimension for a

``hole,'' instead of the 1-inch least dimension set in the definition

of the existing term ``floor hole,'' because the Agency believes that

focusing on holes which are at least 2-inches wide addresses the

problems caused by small holes more reasonably.

``Infeasible'' is a new term and as used in this subpart, it means

that it is impossible to perform the construction work while using a

conventional fall protection system, or that it is technologically

impossible to use a conventional system. The conventional systems are

guardrail systems, safety net systems, and personal fall arrest

systems. This term is being added to provide guidance to employers who

believe it is infeasible to use conventional fall protection systems

and wish to raise a defense of infeasibility as the reason for not

using conventional fall protection systems. The definition has evolved

from litigation involving contested citations where employers have

asserted that compliance with an OSHA requirement was ``infeasible'' or

``impossible.'' The discussion of the criteria for implementation of a

fall protection plan (Sec. 1926.501(b)(2) of the final rule), below,

provides further information about how OSHA is applying the new term.

``Lanyard'' means a flexible line of rope, wire rope, or strap

which generally has a connector at each end for connecting the body

belt or body harness to a deceleration device, lifeline, or anchorage.

This definition reflects editorial revision of the proposed language.

Two commenters, the AGC of Florida and the ISEA (Exs. 2-16 and 2-23),

pointed out that the inclusion of ``strap webbing'' in the proposed

definition was redundant because it is a type of flexible line already

in the definition. OSHA has revised the definition, removing the

redundancy. The revised language of the definition is consistent with

the definition used in the final rule on powered platforms [54 FR

31470].

``Lifeline.'' The term ``lifeline'' has been revised in the final

rule so that it is consistent with the definition used in the final

rule for powered platforms [54 FR 31470]. The terms ``drop lines'' and

``trolley lines'' have been deleted. The revised definition more

clearly expresses the function of a lifeline and its use for connecting

other components of a personal fall arrest system. OSHA received two

comments (Exs. 2-12 and 2-35) on the proposed definition. Both

commenters pointed out that the proposed definition was in conflict

with the definition of a lanyard. OSHA agrees with the commenters and

has revised the definition to eliminate the conflict.

``Low-slope roof.'' OSHA is using the term ``low-slope roof'' in

the final rule instead of the proposed term ``low-pitched roof.'' This

change in terminology is merely an editorial correction that uses the

proper expression to make it clear that we are describing the slope of

the roof, not the pitch.

``Personal fall arrest system.'' This term replaces the term ``body

belt/harness systems'' and means a system used to arrest an employee in

a fall from a working level. It consists of an anchorage, connectors, a

body belt or body harness, and may include a lanyard, deceleration

device, lifeline, or suitable combination of these. OSHA has decided to

replace the term ``body belt/harness system'' in an effort to keep all

terms and definitions related to fall protection consistent throughout

the standards. The final rule on powered platforms also contained a

definition for personal fall arrest systems [54 FR 31470] which is

identical to the definition in this final rule. The meaning is

essentially the same as that proposed for body belt/harness systems,

and the phrase ``personal fall arrest systems'' appears in the final

rule wherever the phrase ``body belt/harness systems'' was used in the

proposed rule. There were two comments related to the proposed

definition ``body belt/harness systems.'' The commenters, ISEA and MSA

(Exs. 2-23 and 2-35), both suggested rewording the definition to

indicate that lifelines and deceleration devices are not always

included as a part of a body belt/harness system as the proposed

definition implied. OSHA agrees and has revised the proposed definition

accordingly.

``Positioning device system.'' This term means a body belt or body

harness system rigged to allow an employee to be supported on an

elevated vertical surface, such as a wall, and work with both hands

free while leaning backwards. The proposed definition was identical.

Two commenters (Exs. 2-15 and 2-23) suggested changing the definition

of the term ``positioning device system'' to permit such devices to be

used on surfaces such as small horizontal ledges and steep roofs. OSHA

observes that changing the definition would have no effect on the

requirements to have fall protection at unprotected sides and edges of

walking/working surfaces (e.g., ledges) or of steep roofs. The use of

positioning device systems was not proposed for use in either of these

situations. OSHA has no evidence that would lead it to believe that

positioning device systems offer appropriate protection to workers on

ledges and steep roofs, nor has the commenter provided any substantive

information to that effect. After consideration of the record, OSHA has

determined that the term ``positioning device systems'' is

appropriately defined and that no further revision is necessary.

``Roofing work.'' This is a new term in the final rule. The term is

defined to mean the hoisting, storage, application and removal of

roofing materials and equipment, including related insulation, sheet

metal, and vapor barrier work, but not including the construction of

the roof deck. OSHA proposed to use this definition to define the term

``built-up'' roofing work. However, many commenters pointed out that

OSHA's definition in the proposal was incorrect as it applied to the

term ``built-up.'' The commenters said the definition described all

kinds of roofing work, and it was not just a definition of ``built-up''

roofing work. Many of the commenters represented roofing contractors

(Exs. 2-54, 2-57, 2-68, 2-74, 2-83, 2-85, 2-88, 2-94, 2-109, 2-124, 2-

126, 2-128, 2-130, as well as others) and they wrote to support the

position of the National Roofing Contractors Association (NRCA) (Ex. 2-

162) who pointed out the incorrect terminology.

Other commenters (Exs. 2-91, 2-110, and 2-124) stated that the term

``built-up roofing'' should be replaced with the term ``low-slope

roofing,'' because ``this change will reflect a truer meaning to the

definition to which the standard will apply.'' They also stated that

the term defined in the proposal describes all types of roofing, not

just built-up roofing. The commenters suggested that OSHA define ``low-

slope roofing'' to mean ``the application, installation, and/or removal

of any roofing material or system over a roof deck or existing roof.''

OSHA believes that this term should apply to roof work performed on any

roof, regardless of the slope. Accordingly, OSHA has not made the

suggested change.

OSHA agrees with the commenters who suggest the term ``built-up

roofing'' needs to be deleted from the proposed rule. OSHA also agrees

with the commenters that the proposed definition accurately defines

roofing work in general and is defining the term roofing work as

suggested.

``Rope grab'' means a deceleration device that travels on a

lifeline and automatically engages the lifelines and locks by friction

so as to arrest the fall of an employee. A rope grab usually employs

the principle of inertial locking, cam/level locking, or both. This

term was not defined in the proposed rule. It has been added to this

final rule as in the powered platforms final rule [54 FR 31470], to

state clearly what the Agency means when it uses ``rope grab'' as an

example of a ``deceleration device.''

``Self-retracting lifeline/lanyard'' means a deceleration device

containing a drum-wound line that may be slowly extracted from or

retracted onto the drum under slight tension during normal employee

movement, and that, after onset of a fall, automatically locks the drum

and arrests the fall. This term, like rope grab, was not defined in

proposed Part 1926, subpart M. OSHA, however, has determined that it is

appropriate to define self-retracting lifeline/lanyard so that the term

which is used in the definition of ``deceleration device'' is clearly

understood. OSHA made the same determination in the final rule on

powered platforms [54 FR 31470].

``Snaphook'' means a connector comprised of a hook-shaped member

with a keeper, which is normally closed or similar arrangement. The

``keeper'' opens to permit insertion of other hardware or of a like

object and then, when released, automatically closes to retain the

object. Snaphooks are generally, either locking or non-locking. Both

types are covered in the definition of snaphook. That term was defined

in the proposed rule for powered platforms but not in the proposal for

subpart M.

Note: Effective January 1, 1998, the use of non-locking

snaphooks is prohibited for use as part of personal fall arrest

systems and positioning device systems.

OSHA received one comment (Ex. 2-23) on the subpart M proposal

suggesting that the term ``snaphook'' should be defined. OSHA agrees

with that comment because the Agency believes that the standard should

clearly express what OSHA means when its sets requirements for personal

fall arrest system components. In addition, OSHA notes that some of the

comments (Ex. 3-13) and testimony addressed in the final rule on

powered platforms suggested that the proposed definition of

``snaphook'' should distinguish between locking and non-locking

snaphooks [54 FR 31447]. OSHA agreed with that suggestion in the

powered platform final rule [54 FR 31470] and revised the proposed

definition of ``snaphook'' accordingly. That definition is identical to

the definition used in this final rule.

``Work area.'' The definition is identical to the one proposed.

OSHA notes that this definition applies to all areas where employees

are present.

Sec. 1926.501--Duty To Have Fall Protection

This section specifies the areas and operations where fall

protection systems are required. The criteria to be met by fall

protection systems, and the training necessary to use the systems

properly, are covered in succeeding Secs. 1926.502 and 1926.503,

respectively.

Paragraph (a)(1). This paragraph states that section 1926.501 sets

forth the type of fall protection systems employers must use in various

areas and operations. In addition, it mandates that all fall protection

systems required to be used by Sec. 1926.501 conform to the criteria

and work practices set forth in Sec. 1926.502. OSHA notes that most of

the provisions provide several choices for providing fall protection,

but some provisions limit the choices. For example, only guardrail

systems are permitted to be used to protect employees on ramps and

runways and other walkways. In these situations, OSHA believes

guardrail systems offer the appropriate level of fall protection and

the record supports this conclusion.

There were no comments specific to this paragraph. OSHA has made a

minor editorial change for the sake of clarity. However, OSHA provides

the following discussion to clarify further its intent under this

general provision.

OSHA has consistently maintained that all construction employers

are responsible for obtaining information about the workplace hazards

to which their employees may be exposed and for taking appropriate

action to protect affected employees from any such hazards. ``The

[Occupational Safety and Health Review] Commission has held that an

employer must make a reasonable effort to anticipate the particular

hazards to which its employees may be exposed in the course of their

scheduled work. Specifically, an employer must inspect the area to

determine what hazards exist or may arise during the work before

permitting employees to work in that area, and the employer must then

give specific and appropriate instructions to prevent exposure to

unsafe conditions.'' Automatic Sprinkler Corp. of America, 8 BNA OSHC

1384, 1387, 1980 CCH OSHD 24,495 (No. 76-5089, 1980), cited with

approval in several cases, including Conagra Flour Milling Co., 15 BNA

OSHC 1817, 1823, 1992 CCH OSHD 29,808 (No. 88-2572, 1992).

In addition, it is well established that general contractors must

``apprise themselves of which safety efforts their specialty

subcontractors have chosen to make in completing their assignments.''

Blount Intern. Ltd., 15 BNA 1897, 1900 n. 3, 1992 CCH OSHD 29,854 (No.

89-1394, 1992).

OSHA considers subcontractors to have a reciprocal responsibility

to determine what protective measures the general contractors have

identified as necessary and have implemented. Furthermore, the same

considerations arise at a multi-employer worksite, because each

contractor needs to know about any hazards that other contractors may

confront or create so that contractors can take the appropriate

precautions for employee protection.

OSHA requires employers to protect employees performing

construction work from fall hazards, and sets criteria for the proper

implementation of fall protection through the requirements in subpart M

and the specific standards referenced in Sec. 1926.500(a)(2) and

(a)(3). However, there is much more to workplace safety than an

employer arriving at a work site with a copy of the pertinent standards

in hand. Employers have a duty to anticipate the need to work at

heights and to plan their work activities accordingly. Careful planning

and preparation (e.g., project design that incorporates fall protection

and employee training) lay the necessary groundwork for an accident-

free workplace.

OSHA is aware that many falls have occurred because employers have

not taken fall protection into account when they plan and undertake

construction even when it is known that the work involves employee

exposure to fall hazards. In some cases, an employer has recognized the

hazard and established appropriate fall protection procedures, but has

failed to ensure that employees followed those procedures. In other

cases, employers either misidentified the hazard, selected

inappropriate measures or completely failed to address fall hazards.

The foreseeable consequence is that, as discussed above in the

Background section, falls from elevations account for a large

percentage of construction-related injuries and is the leading cause of

death on construction jobs.

Employers need information about the work they are to perform so

that they can make fall protection an integral part of their projects.

An employer's communication and coordination with customers, other

contractors (particularly at multi-employer worksites) and suppliers

are critical elements of that employer's ability to protect its

employees and to avoid creating hazards for other employees. Initially,

the employer needs to develop or obtain information regarding the work

to be performed, so that all anticipated fall hazards are identified.

The employer would then determine how to protect its employees from

those hazards. For example, many employers are minimizing exposure to

fall hazards by having anchorage points for personal fall arrest

systems fabricated or designed into structural members and by

installing perimeter lines on structural members before those members

are lifted into position.

OSHA anticipates that the trend towards providing ``100 percent

fall protection'' will spur even more effective efforts, from the

design stage through to project completion, to increase employee

protection. To this end, employers will need to reexamine their

``traditional methods'' and, when possible, update them by

incorporating available fall protection technology and design concepts.

OSHA believes that while there may initially be some increased costs

and disruption associated with these efforts, subsequent productivity

gains and reductions in the cost of workers' compensation will clearly

make it highly cost effective in the long run to provide effective fall

protection. (See Regulatory Impact and Regulatory Flexibility Analysis,

Section V).

An employer who controls its own construction projects will

generally find it adequate to make its design and equipment decisions

part of the project blueprints and workplan. Where employers are

bidding a contract to perform specified construction work, making fall

protection a bid item gives potential customers a clear idea of how

prospective contractors plan to comply with subpart M. This is a point

at which effective communication between a contractor and a customer is

critical. Prospective contractors must obtain sufficient information

from the customer to enable them to develop responsive bids,

incorporating fall protection that complies with subpart M. By doing

so, the bidding contractor reassures the customer that it has taken

into account the full cost of performing the work in question. Both

parties need to recognize that employee protection is an integral part

of every construction project. Employers will not be permitted to gain

a competitive advantage by exposing their workers to fall hazards.

Paragraph (a)(2) is a new requirement added as a result of comments

on Issue #6. In Issue #6, OSHA requested comment on whether it should

promulgate rules requiring the inspection of work surfaces to determine

their structural integrity prior to employees being required to work on

such surfaces. OSHA explained that there are currently no specific

requirements that address this concern. OSHA notes, however, there are

general requirements in existing Sec. 1926.20(b)(2) which address

inspections of job sites, materials and equipment by a designated

competent person. Issue #6 asked whether or not a specific requirement

should be added to the fall protection section that would require

employers to take some specific action, in addition to complying with

Sec. 1926.20(b)(2), to determine whether or not the work surfaces would

support the weight of workers, equipment and materials, thereby

preventing a collapse that would result in employees falling.

Issue #6 also explained that the inspections would insure that work

surfaces have the requisite strength to prevent collapse under the

weight of employees, tools, and materials. The issue further stated

that OSHA has obtained information (Ex. 3-3) which indicated that it

was appropriate to require such inspection. That study showed that of 8

fatalities of employees falling through ceilings, 4 of the accidents

occurred because the work surface was not capable of supporting the

employee's weight. The study also showed that of 55 fatalities

resulting from falls from roof levels, 8 occurred because the employees

were working on surfaces with insufficient structural strength to

support their weight. OSHA asked for comments on the necessary criteria

for inspection of surfaces, the inspection methods to be used, and the

qualifications of the inspectors.

In response, ACCSH recommended that a competent person certify the

structural integrity of a working surface before employees are allowed

to work on it. (Tr. 6/10/87; p. 109).

The Tennessee Valley Authority (TVA) (Ex. 2-20) stated, ``Work

surfaces should be inspected for their structural integrity prior to

allowing employees on that surface,'' and that a qualified civil or

structural engineer should conduct the inspection.

The Scaffolding, Shoring, & Forming Institute, Inc. (SSFI) (Ex. 2-

89) also commented in support of an inspection provision and

recommended that the inspection by made by a ``qualified'' individual.

Four other commenters agreed that inspection for structural

integrity should be required by OSHA (Exs. 2-6, 2-9, 2-36, 2-50 and 2-

99). The Egan Companies (Ex. 2-9) also recommended that periodic

inspections be conducted in addition to initial inspection.

Other commenters were opposed to OSHA requiring an inspection to

determine structural integrity. For example, the Great Lakes

Fabricators & Erectors Association (GLFEA) (Ex. 2-19) said that such a

requirement was more properly the responsibility of building codes and

building inspectors rather than OSHA. Bristol Steel and the National

Erectors Association (NEA) (Exs. 2-12 and 2-43) commented that the

requirement would be ineffective at reducing the kinds of accidents

regulated by subpart M and that costs would far outweigh the benefits.

The commenters further stated, ``The problem is that persons do not

recognize hazards and respond sensibly to the situation at hand,''

adding that education and training would help. Miller and Long (Ex. 2-

41) stated ``* * * the working surfaces are designed by an engineer and

erected to his specifications.'' The National Constructors Association

(NCA) (Ex. 2-45) commented that inspections should be a part of the

employer's quality assurance/quality control program.

The Boston Cement Masons and Asphalt Layers Union, (BCMALU) Local

No. 545 (Ex. 2-46) noted that work surfaces such as metal decking

should be heavy enough to withstand the workers and equipment. They

also commented that most metal decking jobs around Boston have to be

shored up when concrete is placed.

OSHA observes that the existing regulations in subpart Q (Concrete

and Masonry Construction) and subpart R (Steel Erection) contain

provisions requiring employers to take specific action to eliminate the

hazards identified by the BCMALU. Section 1926.701(a) of subpart Q

prohibits imposing loads on structures until it has been determined

that the structure can support the load, and subpart R requires decking

to be of sufficient strength to carry the working load

(Sec. 1926.752(f)). Those existing provisions directly address the

situations identified by the BCMALU.

After considering all of the comments received on this issue, OSHA

has determined that the record supports adding a new inspection

requirement, more specific than that in Sec. 1926.20(b)(2). As

discussed above, existing Sec. 1926.20(b)(2) requires, in part, that

employers ``* * * provide for frequent and regular inspections of job

sites, materials, and equipment to be made by competent persons

designated by the employer.'' Revised paragraph (a)(2) will require

employers to ensure the structural integrity of walking/working

surfaces before employees are permitted to be on those surfaces.

Paragraph 1926.501(b). Paragraph (b) contains 15 requirements that

set forth the options from which employers may choose to protect

employees exposed to fall hazards when on ``walking/working surfaces,''

as defined in Sec. 1926.500(b). Under paragraph (b), employers are

required to choose and use a fall protection system (or combination of

systems) as provided by paragraphs (b)(1) through (b)(15) which address

the fall protection needs of particular walking and working surfaces.

OSHA has used the term ``walking and working surfaces'' instead of

the existing term ``floor'' to indicate clearly that subpart M

addresses all surfaces where employees perform construction work. The

Agency has always maintained that the OSHA construction fall protection

standards cover all walking and working surfaces. The revised rule

reaffirms the existing Agency interpretation and practice and clarifies

the language of the standards in that regard. Also, OSHA has

consistently held that subpart M addresses the hazards of falling from

a walking/working surface to any kind of lower level (e.g., solid,

liquid or colloid). In addition, the Agency has determined that

compliance with revised subpart M will not conflict with Sec. 1926.106,

Working over or near water.

OSHA received three comments on the introductory language of

proposed paragraph (b), including two which were in response to Issue

#2. In Issue #2, OSHA asked if it had been overly restrictive in its

fall protection provisions by limiting options for certain areas or

operations. The Milwaukee Construction Industry Safety Council (MCISC)

(Ex. 2-140) expressed the opinion that warning lines provide

appropriate protection for workers who are not required to go near

unprotected edges. OSHA agrees and observes that the use of warning

lines is permitted as an appropriate method of protecting workers on

low-slope roofs and where no workers are required to go near the

unprotected edges. In particular, OSHA recognizes that there may be

circumstances where the use of a warning line system is appropriate, in

conjunction with a Fall Protection Plan, to protect workers who are not

required to go near unprotected edges.

The Eastern Contractors Association, Inc. (ECA) (Ex. 2-3) commented

that ``The fall protection requirements 6 feet on open sided floors and

10 feet on scaffolds should remain as is,'' and explained that the

situations were different and each presented unique problems. In the

proposed revision to subpart L, Scaffolds, the Agency proposed

(Sec. 1926.451(e)) that employees working on scaffolds more than 10

feet above lower levels be protected from fall hazards (51 FR 42707,

November 25, 1986). The appropriate height threshold for fall

protection on scaffolds will be set in the final rule for subpart L.

The ECA also stated the height at which fall protection is required

should be the same for all trades. OSHA agrees and this final rule

reflects that concern.

On the other hand, the SSFI (Ex. 2-89) recommended that the

proposed and existing height thresholds for fall protection at

unprotected sides and edges, low-pitched floors, roof, etc. be changed

from 6 feet (1.8 m) to 10 feet (3.05 m). Based on the BLS injury and

fatality data, discussed above (Ex. 3-6), OSHA believes that employees

performing construction work on walking and working surfaces 6 feet

(1.8 m) or more above lower levels are exposed to a significant risk of

injury and death. Accordingly, more workers would be injured or killed

if the height threshold for fall protection were raised to 10 feet

(3.05 m). Therefore, OSHA is not making the suggested change.

Paragraph (b)(1) sets forth the requirements for fall protection

from unprotected sides and edges of walking and working surfaces. It

provides that employees must be protected when they are exposed to

falls from unprotected sides and edges of walking/working surfaces

which are 6 feet (1.8 m) or more above lower levels. The options from

which an employer can choose to provide this protection are guardrail

systems, safety net systems, and personal fall arrest systems. OSHA

considers these three types of systems to be ``conventional fall

protection systems.''

Paragraph (b)(1), as promulgated, differs from proposed paragraph

(b)(1) in several respects. In proposed paragraph (b)(1), OSHA

distinguished between unprotected sides and edges that were at least 18

inches (.5 m) in width, and those that were less than 18 inches (.5 m)

in width. In particular, the proposed rule required employers to

protect employees by the use of guardrails when the floor, roof or

other walking and working surface was at least 18 inches (.5 m) in

width. Where the unprotected sides and edges were less than 18 inches

(.5 m) wide, OSHA proposed to provide more flexibility as to the method

of fall protection by allowing employers to use personal fall arrest

systems (body belt/harness systems) or safety net systems instead of

guardrail systems. OSHA proposed these options because it recognized

the feasibility problems associated with erecting guardrails on a

surface that was less than 18 inches (.5 m) wide and, therefore,

proposed alternative methods of protecting workers from falls. The

proposed 18-inch (.5 m) threshold was consistent with existing

Sec. 1926.500(d)(3) which addresses ramps and runways. In addition, the

Agency notes that the proposed requirement that walking and working

surfaces over 18 inches (.5 m) wide be protected at the edge with

guardrail systems was also consistent with existing Sec. 1926.500(d)(1)

which requires a guardrail system to be erected at every open-sided

floor or platform, which would include the floor perimeter. Thus, the

proposed rule and the existing rule contained essentially the same

requirement.

Three commenters (Exs. 2-1, 2-15, and 2-140) contended that

proposed paragraph (b)(1) was either inappropriate or too restrictive.

Two of the commenters cited situations where, they believed, guardrail

systems would not be the most appropriate form of protection, and

stated that using a personal fall arrest system is sometimes more

appropriate. For example, the Alaska Department of Labor (Ex. 2-1)

commented, ``In many cases workers are exposed to hazards erecting a

guardrail system that could be avoided if they were allowed to use a

safety line system.'' Also, as mentioned above, ISEA (Ex. 2-23)

requested that OSHA permit the use of positioning device systems on

surfaces such as small horizontal ledges and steep roofs. OSHA has

determined that positioning device systems do not provide adequate fall

protection in these situations.

OSHA agrees with the commenters that there are work operations and

areas with walking and working surfaces that are 18 inches (.5 m) or

more wide (e.g., ledges and balconies) where personal fall protection

systems or safety net systems are at least as protective as guardrails.

Accordingly, OSHA has revised proposed paragraph (b)(1) to allow any of

the conventional fall protection systems.

In Issue #4, OSHA asked whether there was a distance from the

unprotected side or edge where a worker would be safe from fall hazards

and not need any fall protection. As an example, OSHA inquired if fall

protection would be necessary at the perimeter of a floor if employees

were only required to work in the center of a floor and that center

would be as far as 10, 20, or 30 feet from an unprotected side or edge.

The GLFEA (Ex. 2-19) recommended that employers provide fall

protection to employees who are within 8 feet of the edge. Another

commenter, the MCISC (Ex. 2-140), suggested that employees who work 6

to 10 (1.8 to 3.05 m) feet from the edge would not need fall

protection. The SSFI (Ex. 2-89) agreed with the proposed OSHA approach,

requiring fall protection regardless of employee distance from exposed

edge, because ``it is nearly impossible to develop a policy for most

every situation that may or may not require guarding.''

Miller & Long Co., Inc. (Ex. 2-41) commented, ``I feel that all

open sided floors should have adequate fall protection because once it

is there, the potential hazard for employees to 'wander' into an unsafe

area is negated.'' In addition, the BCMALU (Ex. 2-46) commented, ``Who

knows when the wind will change while you are carrying something that

could make you like a kite or when you will or others will have to work

near the edge.''

The ACCSH, in its meeting on June 10, 1987, (Tr. 6/10/87; pp. 67-

88) had considerable discussion on the areas of concern addressed in

Issue #4. The discussion began with the following statement from a

member:

I believe that this entire question is based on a false

assumption. The assumption that seems to be included in it is that

if a worker is working near the middle of a floor, he's never going

to approach the edge of the floor. And if we know of any way to

convince employees that that's the way they will work, I'd like to

know what it is. Workers on any construction site are very mobile,

and there's no effective system to keep employees from venturing

into an unprotected danger zone * * *.

I can't think of any job that I have ever seen where there's a

floor or roof that will not require some work near the edge of it at

some time during the process. The guardrail must be, the protection

must be placed at that time and certainly there's no added cost to

leaving that in place until the work is completed on that floor and

some permanent protection is in existence.

The Committee voted to recommend that guardrail systems or other

means of fall protection be provided on any elevated work surface where

employees were present, subject only to the exemptions that OSHA has

now included in the final rule on subpart M.

The Precast/Prestressed Concrete Institute (PCI) (Ex. 2-44) also

addressed the issue of perimeter protection, stating that ``Perimeter

protection is not really the responsibility of the * * * subcontractor;

it is the responsibility of the general contractor to coordinate safety

and make the workplace safe for all trades * * *.''

OSHA has carefully evaluated the concerns expressed and has

determined that employers should have the option to use personal fall

arrest systems or safety net systems where those systems would be

feasible and would protect employees from fall hazards. Whatever

conventional system is adopted, OSHA expects the employer to implement

it early in the construction process and to maintain that system in

place until all work has been completed or until the permanent elements

of the structure which will eliminate the exposure to falling hazards

are in place. It is not OSHA's intent that individual contractors or

subcontractors each separately provide and remove fall protection

systems on the same floor. The general contractor in charge of the

overall project can, and should, evaluate those situations where fall

protection may be needed. OSHA believes, based on its knowledge of good

industry practices, that the general contractor will contract for fall

protection for all employees until employees are no longer exposed to

the fall hazard. In the event that the fall protection system has been

dismantled and workers are then required to work on the floor in an

area away from the fall hazard, OSHA compliance staff will consider the

extent to which individual contractors acted to prevent workers from

leaving the work area and travelling to the unprotected edge. For

example, a contractor could erect a guardrail system around the

perimeter of the work area, thus providing protection from the

unprotected sides and edges. OSHA would consider this an acceptable

form of protection under the circumstances, provided workers remain in

the protected area at all times.

In conclusion, after careful and complete consideration of the

entire record, OSHA has determined that there is no ``safe'' distance

from an unprotected side or edge that would render fall protection

unnecessary.

Paragraph (b)(2) sets requirements for the protection of employees

who are exposed to fall hazards while constructing leading edges and

employees who are working on the same level as a leading edge, but are

not actually engaged in constructing the leading edge. As defined in

the final rule, a leading edge is the edge of a floor, roof, or

formwork that changes location as additional floor, roof, or formwork

sections are placed, formed, or constructed. Leading edges not actively

and continuously under construction are considered to be ``unprotected

sides and edges,'' and are covered by paragraph (b)(1).

Paragraph (b)(2)(i) of the final rule requires that employers

protect employees actively engaged in constructing leading edges from

fall hazards through the use of guardrail systems, safety net systems,

or personal fall arrest systems. In addition, paragraph (b)(2)(i)

provides that if the employer can demonstrate that it is infeasible or

would create a greater hazard to use any of these systems, the

employers must develop and implement a fall protection plan which meets

the requirements of paragraph (k) of Sec. 1926.502. The fall protection

plan, in turn, requires, among other criteria and conditions for use,

that the employer designate all areas where conventional fall

protection systems cannot be used as controlled access zones. Employers

must also implement a safety monitoring system in those zones if no

other alternative measure has been implemented. Criteria for controlled

zone systems and safety monitoring systems are found in Sec. 1926.502

(g) and (h), respectively.

Paragraph (b)(2)(ii) requires that employees on walking/working

surfaces where leading edges are under construction, but who are not

constructing the leading edge, shall be protected from fall hazards by

guardrail systems, safety net systems or personal fall arrest system.

The leading edge provisions of the final rule differ from the

proposed rule. In the proposal, OSHA explained its belief that a

requirement to erect safety net systems would not always be feasible

because of insufficient room to rig a safety net and because the net

would have to be constantly moved, exposing workers repeatedly to fall

hazards while erecting the net.

OSHA also noted that because the time lapse between placement of

successive floor, roof, or floor formwork sections would often be only

a few minutes, guardrail systems erected along a leading edge would

have to be removed almost as soon as they were erected to allow

placement of the next section. In addition, OSHA noted, the continued

erection and removal of guardrail systems could pose a ``greater

hazard'' to the employees than having the employees work without the

guardrails. Because of this, OSHA was concerned that guardrail systems,

as required in the existing rule, often would not allow the

accomplishment of work along leading edges.

Finally, OSHA expressed its view that personal fall arrest systems

(body belt and harness systems) might limit an employee's freedom of

movement, hindering job performance as well as impairing an employee's

ability to avoid hazardous situations (such as a misdirected incoming

piece of concrete or other structural member used on the leading edge).

Also, during the erection of some structural members, employees are

required to walk along a leading edge during placement of the member. A

personal fall arrest system (body belt or harness system) might impede

this effort if the employee's movement was restricted by the length of

the lanyard, causing constant reattachment of the systems to different

anchor points.

In recognition of these potentially infeasible (impossible to

perform the work) or greater hazard situations, OSHA proposed to allow

the use of a fourth option--safety monitoring systems on leading edges

and the use of control zone systems to limit the number of employees

exposed to the hazard at leading edges.

There were several varied comments on the proposed leading edge

provision. NIOSH (Ex. 2-33 and 27-6) questioned the adequacy of the

safety monitoring system, noting that it relied on visual inspection

only, and recommended that it be deleted as a fall protection option.

NIOSH also stated that using a monitor would require active involvement

of both the monitor and the worker to ensure safety.

Miller & Long (Ex. 2-41) noted that, ``The only employees at the

leading edge are the ones who are working on the leading edge.

Therefore, the warning lines and monitor systems are not needed.''

The Daniel Marr & Son Co. (Ex. 2-40), specifically addressing the

concerns of ironworkers installing decking, also commented on the

safety monitoring system for leading edge work, noting that, ``By

requiring a worker to act as a monitor, the Department of Labor will be

forcing steel erection companies to duplicate safety efforts and, at

the same time, be placing a large financial burden on the construction

industry.'' OSHA notes that at this time, the final rule for subpart M

does not apply to steel erection activities in buildings. The Agency

has begun work with the Steel Erection Negotiated Rulemaking Advisory

Committee to develop a proposed revision for subpart R which will

address fall protection for employees performing steel erection

activities in buildings [see meeting notice at 59 FR 25848 and 59 FR

26153].

Finally, WMACSA (Ex. 2-56) wanted to know how the leading edge

provision applied to workers setting precast stone walls on the leading

edge. In response, OSHA observes that the leading edge provision would

not be applicable in the situation described. That is, if a wall is

being set at the edge, the leading edge of the floor or roof or

formwork is no longer under construction. Therefore, the work location

(the edge) would be considered an unprotected side and edge and covered

by paragraph (b)(1), above.

The final rule differs from the proposed rule in that it requires

the use of one of the three conventional fall protection systems, but

does not permit an employer to use a safety monitoring system instead

of one of the conventional systems as was proposed. However, as noted

above, when the employer demonstrates that all conventional fall

protection systems are infeasible (i.e., it is impossible to perform

the construction work or technologically impossible to use) or create a

greater hazard, the final rule requires the employer to develop and

implement a fall protection plan. A fall protection plan, in turn,

requires the employer to establish a controlled access zone and to

implement a safety monitoring system if no other alternative measure

has been implemented in the zone where conventional fall protection is

not being used.

A controlled access zone, discussed in detail in Sec. 1926.502(g)

below, is defined with control lines to form a visual and physical

barrier which, in this case, prevents an employee from inadvertently

entering the area immediately adjacent to the leading edge. OSHA notes,

again, that any unprotected side or edge of the floor or roof which is

not part of the controlled access zone must be guarded as required by

the pertinent provisions of Sec. 1926.502(b) or other protection

provided to employees who may be exposed to falls from those other

unprotected sides or edges. Criteria for safety monitoring systems can

be found in Sec. 1926.502(h).

A safety monitoring system does not provide a physical means of

preventing falls or arresting a fall, and therefore, will not provide

protection equivalent to that provided through the use of the other

fall protection measures proposed.

Accordingly, OSHA has removed these systems as a direct alternative

to conventional fall protection systems under the general rule for

leading edge work. However, as discussed above, the final rule requires

the use of a fall protection plan that complies with Sec. 1926.502(k)

where the employer can demonstrate that the use of conventional fall

protection would be infeasible or would create a greater hazard. The

following information is provided to assist employers in determining if

the use of conventional fall protection would be infeasible or pose a

greater hazard at a particular work area or for a particular operation.

OSHA considers a fall protection measure to be infeasible when the

employer establishes that application of that measure is either

functionally unworkable or would prevent the performance of required

work. The Agency recognizes that there are situations where one or

another measure cannot be implemented, because of the configuration of

the worksite (for example, where structures are built so close together

that nets cannot be installed) or due to circumstances during a

particular phase of the construction process (for example, where work

at the leading edge precludes the use of guardrails).

OSHA has consistently maintained, however, that, in general, at

least one of the three conventional fall protection measures mandated

by subpart M can be used to protect employees at a particular worksite

from fall hazards. In particular, the Agency has frequently found that

the use of personal fall arrest systems is feasible even where a

guardrail system or safety net system is infeasible. Further, equipment

is generally available to provide safe anchorage points for personal

fall arrest systems. It is in this area that preplanning of the

construction project is most critical. Focusing on fall protection at

the design and planning stages of a construction project will enable an

employer to develop measures that protect affected employees from fall

hazards.

OSHA recognizes that the applicability of alternative measures will

depend on the circumstances of particular employers and work sites and

that those circumstances vary widely. Therefore, paragraph (b)(2), like

the provisions at Secs. 1926.501 (b)(12) and (b)(13), sets general,

rather than specific, criteria for an employer who seeks to determine

if it is appropriate to implement a fall protection plan that complies

with 29 CFR 1926.502(k).

OSHA has consistently maintained that employers must consider the

safety of workers as well as the technical aspects of their

construction projects. In a case involving existing Sec. 1926.105(a),

the 5th Circuit of the U.S. Court of Appeals has stated ``[t]he

regulation in question . . . specifically dictates the employer's duty

to supply fall protection. The duty to consider alternative methods of

construction which permits compliance with the regulation is merely a

corollary of the duty to comply. The petitioner has attempted to

characterize this duty as a burden requiring changes in methods of

construction; however, that characterization ignores the employer's

initial responsibility to comply with OSHA regulations. If an employer

were permitted to choose any method of construction, and subsequently

argue that compliance with OSHA regulations was impossible because of

the method of construction chosen, then the regulations could be

undermined in many instances.'' Cleveland Consol. v. OSHRC, 649 F.2d

1160, 1166 (5th Cir. 1981). In addition, regarding an employer's duty

to anticipate and determine the need for fall protection, the

Occupational Safety and Health Review Commission has held that the

employer ``could have easily foreseen the lack of open steel, given the

problem some foresight, and installed a static line in advance.'' A.C.

Dellovade, Inc., 13 BNA OSHC 1017, 1020 (No. 83-1189, 1987).

OSHA has long acknowledged that there may be circumstances at a

particular workplace which would make it unreasonable for the Agency to

pursue a citation. In the enforcement context, OSHA has consistently

placed the burden on the employer in question to establish any such

circumstances as ``affirmative defenses'' to OSHA citations. The Agency

has had considerable experience in evaluating employers' efforts to

establish affirmative defenses (e.g., ``impossibility'' (sometimes also

known as ``infeasibility'') and ``greater hazard'' defenses) to

citations. Based on that experience, OSHA developed Section V.E of the

Field Operations Manual (FOM) to guide OSHA personnel in assessing

those defenses.

Under Section V.E.3.b of the FOM, an employer has established

``impossibility'' when ``Compliance with the requirements of a standard

is: (1) Functionally impossible or would prevent performance of

required work; and (2) There are no alternative means of employee

protection.'' Under Section V.E.3.c, an employer has established

``greater hazard'' when ``Compliance with a standard would result in

greater hazards to employees than non-compliance and: (1) There are no

alternative means of employee protection; and (2) An application [for]

a variance would be inappropriate. Under Section V.E.3.d, an OSHA

compliance officer who becomes aware that an employer is raising an

affirmative defense is directed to gather pertinent information and to

bring any possible defenses to the attention of his or her supervisor.

That section further provides that a citation is not issued when OSHA

determines that each and every element of an affirmative defense is

present.

Paragraph (b)(2), as well as Secs. 1926.501 (b)(12) and (b)(13),

discussed below, reflect the Agency's longstanding position, as

presented in the FOM, regarding the criteria for an employer to

successfully establish the pertinent affirmative defenses.

OSHA considers compliance with a measure to be ``infeasible'' when

it is technologically impossible to do what a standard requires or when

following the standard would prevent performance of the work in

question. A contractor attempting to establish infeasibility will be

required to establish the worksite-specific circumstances that preclude

reliance on conventional fall protection to protect employees from fall

hazards. For example, the employer will be required to establish that

the available personal fall arrest systems cannot be used in a

particular work area due to design or equipment constraints. The

employer will need to indicate the particular problem (such as

inability to provide safe anchorage; danger of lifeline entanglement;

likelihood that lifelines, especially self-retracting lifelines, will

be mired in grout; likelihood that completion of work would be

prevented by fall protection; and inability of personal fall arrest

systems to function due to the configuration of the work area for OSHA

to determine that the employer has made the necessary showing for use

of a fall protection plan. It will not be sufficient for the employer

to merely assert that it is impossible to use fall protection

equipment. Non-mandatory Appendix E provides guidance regarding the

kind of considerations employers would take into account in attempting

to comply with Sec. 1926.501(b)(2), (b)(12) or (b)(13).

The Agency does not consider ``economic infeasibility'' to be a

basis for failing to provide conventional fall protection for employees

constructing leading edges, erecting precast concrete members, or

performing residential construction work. The Agency has consistently

maintained, and the record for this rulemaking shows, that the industry

can either absorb the costs of compliance with revised subpart M or

pass those costs along to its customers. It is well established that

all employers must comply with OSHA's standards whether or not they are

inspected or cited by the Agency. A.E. Burgess Leather Co., 5 O.S.H.

Cas. (BNA) 1096, 1097 n. 2 (Review Commission 1977), aff'd 576 F.2d 948

(1st Cir. 1978).

OSHA has also consistently maintained that ``impracticality'' does

not excuse a contractor from compliance with the requirements for fall

protection. However, based on OSHA's statutory mandate to protect

employee safety and health and to address the significant risks posed

by fall hazards, it is reasonably necessary and appropriate to require

the protective measures set forth in this standard. As the RIA clearly

shows, the requirements of revised subpart M are both technologically

and economically feasible for the construction industry and they allow

for those limited situations in which feasibility may be an issue.

As noted above, OSHA has acknowledged that there are situations

where the implementation of a particular fall arrest system would

create a ``greater hazard'' for employees than they would otherwise

encounter. Under current Agency practice, an employer establishes the

``greater hazard'' defense to a citation by demonstrating that the

hazards created by compliance with a standard are greater than those

created by non-compliance. The Agency is aware that there are workplace

situations where the installation of guardrails or safety nets could

involve more risk, due to the nature or duration of the exposure, than

the work for which protection is required. On the other hand, OSHA has

found that, as with the ``infeasibility'' defense, the ``greater

hazard'' defense does not generally excuse an employer from protecting

its affected employees with personal fall arrest systems. In

particular, the Agency has found that careful planning of a

construction project enables the employer to erect buildings/structures

into which the necessary anchorage points for personal fall arrest

systems have already been engineered. For example, in the case of

precast concrete erection, preplanning may allow for lifting inserts to

be designed so that they function as both anchorage points for personal

fall arrest systems and as lifting inserts.

OSHA further acknowledges that, regardless of an employer's ability

to preplan for fall protection, there may be cases where the

installation or use of personal fall arrest systems poses a greater

hazard than that to which employees performing the construction work

would otherwise be exposed. The Agency will expect an employer who

seeks to make that case to indicate specifically how compliance with

the requirement for personal fall arrest systems would pose a greater

hazard. OSHA will assess each such case on its particular merits.

Paragraph (b)(3) sets fall protection requirements for employees in

hoist areas of walking and working surfaces that are 6 feet (1.8 m) or

more above lower levels. Employees shall be protected through the use

of guardrail systems or personal fall arrest systems. If guardrails (or

chains or gates if they are being used in lieu of guardrails at the

hoist area) are removed to facilitate hoisting operations, then

employees who lean through the access opening or out over the edge of

the access opening to perform their duties shall be protected by the

use of personal fall arrest systems.

This provision, essentially identical to the proposed provision, is

based on existing Sec. 1926.500(g)(5), which addresses the same hazard

but applies only to material hoisting operations on low-pitched roofs

during built-up roofing operations. The proposal extended the existing

requirement to all situations where equipment and material hoisting

operations are being carried out on floors and other walking/working

surfaces. The wording of the proposed provision has been revised for

the sake of clarity.

There were two comments on this provision. The WMACSA (Ex. 2-56)

commented that the term ``hoist areas'' needed to be defined for the

sake of clarity. In addition, the SSFI (Ex. 2-89) requested that OSHA

interpret the ``exception'' in proposed paragraph (b)(3), because ``the

paragraph seems ambiguous.'' OSHA believes that it has responded to the

concerns of both commenters by rewording the provision to state more

clearly which type of fall protection may be used at hoist areas. The

revised provision clearly differentiates between working in the area

where hoisting activities will take place (e.g., the area where

materials are to be landed) and taking part in the actual hoisting

operation (e.g., receiving materials hoisted by a crane). The exception

language used in the proposal has been incorporated into the text of

final rule paragraph (b)(3) so it is clear that during hoisting

operations employees must be protected by personal fall arrest systems

if they lean through the access opening or out over the edge to receive

or guide materials. Otherwise, the employer would use either guardrail

systems or personal fall arrest systems to protect workers at hoist

areas.

Paragraph (b)(4) of the final rule requires that employees be

protected from hazards associated with holes. In particular, employees

may be injured or killed if they step into holes, trip over holes, fall

through holes or are hit by objects falling through holes. Some

workplaces may present all of these hazards while others may have only

one of them. The proposed rule has been revised to indicate clearly

which protective measures are applicable to a particular hole

situation. OSHA notes that covers which comply with the criteria of

Sec. 1926.502(i) will protect employees from all of the above-described

hazards.

Paragraph (b)(4)(i) requires that employees be protected from

falling into or through holes (including skylight openings) 6 feet (1.8

m) or more above lower levels by covers over the hole, erecting a

guardrail system around the hole, or by the use of a personal fall

arrest system. The Agency has revised the proposed rule to include

personal fall arrest systems as an acceptable fall protection option

because OSHA believes that a properly rigged system can protect an

employee from falling though a hole. Paragraph (b)(4)(ii) requires that

employees be protected from tripping in or stepping into holes by

covers; and paragraph (b)(4)(iii) requires that employees be protected

from objects falling through holes by covers.

The final rule differs from the proposed rule, which was based on

requirements in the existing standards in Sec. 1926.500(b). The

existing standard contains separate specific rules for guarding floor

openings and floor holes in various walking/working surfaces. In the

proposed rule, OSHA treated most holes as presenting the same type of

hazard and did not address each individual type of hole separately. The

proposed rule also set very specific requirements for the use of

covers.

In addition, the proposed rule was apparently unclear with regard

to requirements for protecting workers from stepping and tripping into

holes and for protecting workers from objects falling through holes.

While it appeared the regulatory language of the proposed rule limited

protection from holes to just those situations where employees could

fall to 6 feet or more to lower levels, the explanatory discussion of

the provision in the preamble to the proposed rule indicated it was the

Agency's intent ``that all holes . . . be guarded. . . .'' (51 FR

42722). The inconsistency was brought to OSHA's attention by a comment

from AGC representatives (Exs. 2-16, 2-47, and 2-92), who pointed out

that there was a need to clarify the definition or the requirement.

Their concern was whether the Agency intended to cover holes into which

employees could fall or holes through which materials could fall.

The California Department of Industrial Relations (CAL/OSHA) (Ex.

2-15) suggested that OSHA allow a standby employee safety monitoring

system in lieu of guardrails when covers were being removed for short

duration work. The commenter stated that it was unrealistic to require

a guardrail where a cover is removed for passage of equipment and

material for a short duration, where a standby employee could guard the

hole. As discussed above at ``leading edges,'' the use of safety

monitoring systems is thought to be the least protective of all the

systems permitted by the final rule. For this reason, OSHA has limited

the situations where the use of safety monitoring systems is acceptable

to roofing operations on low-sloped roofs and to situations where the

employer can demonstrate that it is infeasible or creates a greater

hazard to use conventional fall protection systems and that employer

has developed a fall protection plan. OSHA does not recognize a safety

monitoring system as an acceptable means of protecting workers exposed

to falling into or through holes. There are other, more protective

measures that can be taken to address falls at holes, including covers,

guardrail systems and personal fall arrest systems, therefore, OSHA is

not permitting the use of the less protective safety monitoring system

at holes. Additionally, the final rule reflects the current industry

practice with regard to protecting workers exposed to holes and OSHA

does not have any basis for reducing the level of protection.

For clarification, OSHA does not intend that a guardrail be erected

around holes while employees are working at the hole, passing

materials, etc. Therefore, if the cover is removed while work is in

progress, guardrails are not required because they would interfere with

the performance of work. When the work has been completed, the employer

will be required to either replace the cover or erect guardrails around

the hole.

Other comments (Exs. 2-31 and 2-56) concerned securing holes and

these are discussed later in this preamble along with other comments on

the criteria for covers which is addressed in paragraph

Sec. 1926.502(i). These comments prompt OSHA to remind employers and

employees that this paragraph (like other paragraphs in Sec. 1926.501)

only specifies the ``duty'' requirement to have fall protection. Once

an employer has chosen from among the options provided to meet this

duty, he or she must then meet the requirements in Sec. 1926.502, which

sets the criteria and conditions for use for each of the various fall

protection systems required to be used in Sec. 1926.501.

Many commenters responded to Issues #2 and #7, which raised

questions and concerns related to guarding holes and the criteria for

covers used to guard holes. For example, the Associated Builders and

Contractors, Inc. (ABC) (Ex. 2-51) commented that they found the

provision limiting protection to covers or guardrails was unnecessarily

restrictive because a guardrail system around a 3-inch hole would

require a 3-foot diagonal guardrail. OSHA observes that the proposed

provision was framed in performance-oriented language so that employers

would have had the flexibility to choose between guardrails and covers,

based on the circumstances at the workplace. OSHA believes that

compliance with paragraph (b)(4) of the final rule, whichever method is

chosen, will protect employees appropriately. OSHA anticipates that

employers will use guardrails only in those cases where the size and

configuration of the hole indicate that the use of a guardrail would be

appropriate. The ABC also suggested that the final rule allow the same

protection for holes as OSHA proposed for leading edges. As discussed

above, OSHA has revised the proposed rule to allow the use of personal

fall arrest systems where an employee may fall through a hole, but OSHA

has not allowed the use of safety monitoring systems to protect

employees from falling through holes.

Bristol Steel & the NEA (Exs. 2-12 and 2-43) stated that ``Covers

can be more hazardous than no protection at all because workers can see

an uncovered hole but they can unintentionally remove a cover and step

into a hidden hole.'' In addition, they stated that ``. . . guardrails

provide a false sense of security'' because ``Maintenance of guardrails

is a serious problem when various workers are constantly altering,

damaging, or temporarily removing them.'' OSHA observes that it has

revised proposed Sec. 1926.502(i) to require that covers be ``secured''

when installed to prevent their being easily removed or accidentally

displaced. This change should eliminate the commenters' concerns with

regard to unintentional removal of covers.

Both commenters suggested control zones to keep workers at a safe

distance from holes, advocating (like the ABC, (Ex. 2-51)) that

paragraph (b)(4) address holes the same as the proposed paragraph

(b)(2) treated leading edges, allowing the use of guardrail systems and

safety monitoring systems, among other options. Finally, both Bristol

Steel and the NEA stated that the use of ``attending persons'' at

unguarded holes was ``impractical and dangerous . . . because it is so

difficult to enforce and so easy to let lapse during a critical

moment'' that ``Safety monitors for workers performing the work and

control zone systems for other workers in the area should be considered

minimum safety precautions.'' As noted above, the Agency shares the

commenters' concerns about the adequacy of the protection provided by

safety monitoring systems.

Based on review of the comments, OSHA has concluded that the

feasibility concerns that led the Agency to allow use of controlled

access zones and safety monitoring systems are not present with regard

to holes. Further, OSHA does not believe that the use of controlled

access zones and safety monitoring systems would adequately protect

employees working in proximity to holes.

Paragraph (b)(5) requires employees working on formwork and

reinforcing steel 6 feet or more above lower levels to be protected by

a personal fall arrest system, safety net system or positioning device

system. This provision is identical to proposed Sec. 1926.501(b)(5). In

addition, OSHA notes that with one exception (discussed below),

paragraph (b)(5) presents the same requirement currently found in

Sec. 1926.701(f)(2) of the concrete and masonry standard. The

requirement in Sec. 1926.701(f)(2) is being relocated to subpart M

because, as explained earlier, OSHA is consolidating virtually all

construction fall protection requirements in subpart M, Fall

Protection.

As OSHA explained in the proposal, positioning devices are

essentially body belts or body harnesses that are attached by short

lanyards to the work surface, allowing a worker to perform a job with

both hands free. While existing Sec. 1926.701(f)(2) does not provide

for the use of positioning devices, OSHA has determined that such

devices, used in compliance with Sec. 1926.502(e) of the final rule,

will provide appropriate protection for affected employees. As stated

in the proposal, because of the short length of the lanyard

(approximately 9 to 18 inches, depending on how it is rigged), the use

of positioning devices does not pose a significant fall hazard. The

criteria for positioning devices systems as provided by

Sec. 1926.502(e) are discussed below.

Paragraph (b)(6) requires ramps, runways, and other walkways to be

equipped with guardrails. As discussed below, the final rule is

essentially the same as the proposed rule and is very similar to

existing Secs. 1926.500(d)(2) and 1926.651(l)(1), which address fall

protection for runways and excavations, respectively.

OSHA proposed to revise existing Sec. 1926.500(d)(2) by changing

the 4-foot threshold for fall protection to a 6-foot threshold, so that

this provision limit conforms with the other fall protection

provisions. In addition to ramps and runways, the proposal was expanded

to include all walkways and bridges where a fall hazard exists, not

just those over excavations addressed in the existing rules. OSHA notes

that existing Sec. 1926.651(l)(1) of the excavation standards is also

being revised to make it clear that guardrails on walkways built over

excavations must meet the requirements of revised subpart M.

OSHA has revised proposed paragraph (b)(6) by removing the word

``bridges'' from the list of surfaces covered by the provision. The

removal of the word ``bridges'' was prompted by a comment from the

Wisconsin Road Builders Association (WRBA) (Ex. 2-154) which pointed

out that they had been engaged in bridge building for over 40 years and

that their company uses body belts 90 percent of the time and harnesses

10 percent of the time when working on bridges over water. OSHA was

unsure whether this commenter was objecting to the requirement of the

proposal which specifically required ``guardrails'' on bridges used as

walkways, or if the commenter was suggesting that body belts be allowed

to protect workers crossing over bridges. In any event, the comment

alerted OSHA that the term ``bridges'' as used here could be understood

to mean bridges other than those used as walkways. The Agency notes

that paragraph (b)(6) does not apply to the use of personal fall arrest

systems or safety net systems to protect workers from falling while

bridges are being constructed. Rather, Sec. 1926.501(b)(1) covers

bridges under construction, and it requires employers to protect

employees from falls off unprotected sides and edges of bridges with

guardrail systems, safety net systems, or personal fall arrest systems.

OSHA believes that only guardrails can provide appropriate fall

protection for workers as they cross over ramps, runways and other

walkways.

Another commenter (Ex. 2-56) suggested that OSHA define ``ramps,

walkways and bridges,'' pointing out that ``walkways'' is defined as a

part of a scaffold in the proposed scaffold standard. As the commenter

pointed out, a definition for ``walkways'' has been provided in the

scaffold regulations because the term has a unique meaning as it

applies to scaffolds. The Agency notes that a definition in subpart L

does not apply to terms used in subpart M. OSHA has determined that

there is no need to define the terms based on the Agency's belief that

the use of the terms--ramps, runways, and walkways--in this subpart is

consistent with the definitions provided by any standard dictionary.

Paragraph (b)(7) requires that the edges of excavations which are

not readily seen (i. e., concealed from view by plant growth, etc.) be

protected with guardrail systems, fences, or barricades to prevent

employees from falling into them if the excavation depth is 6 feet or

more. In addition, walls, pits, shafts, and similar excavations with

depths of 6 feet or more shall be guarded to prevent employees from

falling into them. The only difference between the proposed

requirements and the final rule is that the option to use signs as an

alternative means of protection has been removed. The final rule is

also essentially the same as the existing requirement in

Sec. 1926.651(l)(2), which is being removed from subpart P and

incorporated into subpart M because it addresses fall protection. As

OSHA explained in the proposal, although employers are not generally

required to provide guardrail systems at excavations, the Agency

believes that barricades are necessary for excavations that are

obscured from view, because of plant growth or other barriers, when the

fall distance is at least 6 feet.

In response to the proposal and to Issue #12, regarding the use of

signs as an alternative to barricades at obscured excavations, CAL/OSHA

and the State of Maryland (MOSH) (Exs. 2-15 and 2-31) objected to the

use of signs as a means of protecting employees from falling into

excavations. MOSH (Ex. 2-31) contended that excavations and trenches

should be guarded whether they can be seen or not. That view was echoed

by commenters (Exs. 2-19, 2-46, and 2-99) who stated, in addition, that

signs alone were not effective.

Another commenter, the Tennessee Valley Authority (TVA) (Ex. 2-20),

commented that ``Signs can be useful as an indicator of a hazard but

should only be used in conjunction with other measures to provide

employee protection.'' Yet another commenter, the National Constructors

Association (NCA) (Ex. 2-45), commented that ``the use of physical

barriers to prevent access to high exposure areas has been sufficient

and [we] do not see any need for new requirements.''

On the other hand, some commenters (Exs. 2-16, 2-47, and 2-92)

supported the use of signs, noting they had ``* * * been used

successfully for this purpose in the past, depending upon the type

exposure or particular situation.'' Some other commenters (Exs. 2-12

and 2-43) recommended that OSHA promulgate the standard as proposed. In

addition, some commenters (Exs. 2-16, 2-47, 2-92, and 2-140) suggested

that the requirement belonged in the excavation subpart. (OSHA's

reasons for placing most fall protection provisions in subpart M have

been discussed earlier in this preamble).

The SSFI (Ex. 2-89) supported the use of signs when no other fall

prevention measures could be utilized. They also supported signs in

conjunction with other measures. The ACCSH recommended that obscure

excavations be protected not only by barricades and warning signs, but

with lights if needed for nighttime operation. (Tr. 6/10/87; pp. 134-

135).

Based on its review of the record, OSHA agrees with those

commenters who have stated that signs, alone, would not adequately

protect employees and has revised proposed paragraph (b)(7)

accordingly.

Paragraph (b)(8) requires employers to protect employees from

falling onto dangerous equipment. Paragraph (b)(8)(i) provides that

where a floor, roof, or other walking or working surface is less than 6

feet above such hazards, employees shall be protected by guardrails or

equipment guards that shield the hazard. Paragraph (b)(8)(ii) requires

that employers protect employees on floors, roofs, and other walking or

working surfaces 6 feet or more above dangerous equipment with

guardrail systems, personal fall arrest systems, or safety net systems.

``Dangerous equipment'' is defined in Sec. 1926.500(b) as equipment

such as pickling or galvanizing tanks, degreasing units, machinery,

electrical equipment and other units which, as a result of form or

function, may be hazardous to employees who fall onto or into such

equipment. These requirements are identical to the proposed provisions,

which were based on existing provisions in Sec. 1926.500(d) (4) and

(5).

There was one comment on this provision. The SSFI (Ex. 2-89),

directing its comment to paragraph (b)(8)(ii), stated ``It is

recommended that all employees above dangerous equipment be protected

by a guardrail system or by body belt/harness system or safety net

system. There should be no limitations regarding the height in which

the employee should be protected.''

The SSFI did not further elaborate on their comment. OSHA observes

that the two requirements of this paragraph differ in the options from

which employers must choose to protect employees based on the distance

between the employee and the dangerous equipment with which the

potential for contact exists. OSHA proposed only two options--the use

of guardrail systems or the use of equipment guards--where the fall

distance is less than 6 feet (1.8 m) because the use of safety net

systems or personal fall arrest systems would not be appropriate.

Specifically, the Agency believes that if a personal fall arrest system

or a safety net system conforming to the criteria in Sec. 1926.502 were

used where the fall distance is less than 6 feet, the employee's fall

may not be arrested before contact was made with the equipment. On the

other hand, where ample distance exists, i.e., more than 6 feet (1.8

m), the conventional fall protection systems would all be protective.

By contrast, equipment guards would not be an appropriate option

because they would not protect employees from such falls. For the

reasons stated above, OSHA proposed options that it considered most

appropriate to protect employees taking into consideration the fall

distances and hazards involved. OSHA believes that paragraph (b)(8), as

proposed, appropriately addresses the pertinent hazard. Therefore, OSHA

promulgates paragraph (b)(8) unchanged.

Paragraph (b)(9) addresses the fall protection requirements for

employees engaged in overhand bricklaying operations and related work,

except as set in Sec. 1926.451(g)(1)(vii). These employees are involved

in the construction of masonry walls and must lean over the wall to

complete the joint work. Related work, as used in this paragraph, means

mason tending as well as electrical work that must be incorporated into

the brick wall during the bricklaying process.

Paragraph (b)(9)(i) requires that employees performing overhand

bricklaying and related work 6 feet (1.8 m) or more above lower levels

to be protected by guardrail systems, safety net systems, personal fall

arrest systems, or they must work in a controlled access zone. However,

when these employees are reaching more than 10 inches (25 cm) below the

level of the walking/working surfaces, only guardrail systems, safety

net systems or personal fall arrest systems are permitted to be used

under paragraph (b)(9)(ii), controlled access zones are not acceptable

in this situation.

OSHA has repeatedly stressed that employees exposed to the risk of

falling should, in general, be protected by one of the three

conventional systems--guardrail systems, safety net systems and

personal fall arrest systems. However, OSHA also recognizes that the

use of such systems sometimes is not feasible when overhand bricklaying

and related operations are taking place. In particular, guardrails may

interfere with the performance of work; safety net systems often cannot

be safely attached to or supported by the structure; and personal fall

arrest systems often become tangled or pose serious trip and fall

hazards. After extensive consultation with the Mason Contractors of

America, the International Union of Bricklayers and Allied Craftsmen,

the Laborer's International Union of North America, and the ACCSH, OSHA

proposed to allow the use of a control zone (now referred to as a

controlled access zone), as an additional option that could be used in

those situations where conventional fall protection systems were not

feasible and the employees were not reaching more than 10 inches (25

cm) below the walking/working level.

The criteria for controlled access zones are set in

Sec. 1926.502(g). In brief, a control zone line prevents non- overhand-

bricklaying employees from inadvertently entering the area immediately

adjacent to the fall hazard and the controlled access zone designates

the area where overhand bricklaying may be performed without the use of

guardrails, safety nets, or personal fall arrest systems as fall

protection. However, paragraph (b)(9)(ii) provides that whenever an

overhand bricklayer reaches more than 10 inches (25 cm) below the

walking or working surface, the bricklayer must be protected by one of

the ``conventional'' systems listed in paragraph (b)(9)(i)--guardrail

systems, safety net systems or personal fall arrest systems. When OSHA

proposed this requirement, it explained it was doing so because it

believed that the additional leaning presents a sufficient additional

fall hazard to warrant such protection. OSHA anticipates that employers

will comply with paragraph (b)(9)(ii) by having employees use personal

fall arrest systems that will restrain employees from falling to lower

levels.

It is important to note that controlled access zones are not

permitted to be used as protection for employees performing overhand

bricklaying and related work who are exposed to fall hazards associated

with hoist areas; holes; ramps, runways, and other walkways, and

dangerous equipment. In these situations, fall protection must be

provided by compliance with the paragraphs addressing the specific

hazard, (i.e., paragraphs (b)(3), (4), (6), and (8)), as appropriate.

For example, a worker performing overhand bricklaying work near a floor

hole would have to be protected as required by paragraph (b)(4) even

when the hole is located within the area marked by a control zone line.

Another example is a worker performing overhand bricklaying work above

dangerous equipment. The provisions of paragraph (b)(8) would apply; a

controlled access zone would not be an acceptable method of fall

protection. The final rule is identical to the proposed rule, except

that, as explained below, OSHA has added a note referencing subpart L

for regulation of bricklaying work performed from scaffolds.

The Mason Contractors Association of America (MCAA), International

Union of Bricklayers and Allied Craftsmen; and the Laborers

International Union of North America, (Ex. 2-95) commented in support

of the proposed provision. The MCAA referred to the proposed provision

as ``* * * the most reasonable, practical and economical and, above

all, the safest method that can be devised for installing masonry

products with the overhand method.'' OSHA concurs with the assessment

of the MCAA with regard to this provision. In addition, the WMACSA (Ex.

2-56) stated that overhand bricklaying should be prohibited as a

practice, particularly when the work can be done from a scaffold. The

MCISC (Ex. 2-140) commented that ``Guardrail systems for scaffolds

should be spelled out in scaffold standards.'' OSHA agrees that it is

appropriate for bricklaying performed from scaffolds to be regulated

under subpart L, Scaffolds, rather than under subpart M and,

accordingly, the Agency is adding a note to subpart L which so

indicates. The MCISC also commented in support of the proposed

provision, stating its belief that no fall protection was needed when

bricklaying operations were conducted from inside a building, except

when reaching more than 10 inches below the working surface. In

response, it should be pointed out that one of the options in paragraph

(b)(9)(i) is to allow overhand bricklaying workers reaching less than

10 inches below the walking/working surface, to work in a controlled

access zone which essentially allows the work to be done without fall

protection, just as the MCISC is recommending for work conducted inside

a building. This option is not a fall protection system per se, but

rather a method which limits the exposure to the fall hazard to those

workers actually involved in the bricklaying operation.

Paragraph (b)(10) applies to employees performing roofing

operations on low-slope roofs with unprotected sides and edges 6 feet

(1.8 m) or more above lower levels. It requires that employers protect

employees from fall hazards by either a guardrail system, safety net

system, or personal fall arrest system. Or, employers must use a

combination of warning line systems and guardrail systems, warning line

systems and safety net systems, warning line systems and personal fall

arrest system, or warning line systems and safety monitoring system.

If, however, the roof is 50 feet (15.25 m) or less in width, the

employer may protect employees by the use of a safety monitoring system

alone.

As with paragraph (b)(9), discussed above, the provisions of

paragraph (b) which cover hoisting areas, holes, ramps and runways, and

dangerous equipment apply notwithstanding the provisions of paragraph

(b)(10). The rationale for these exceptions is the same as that

provided in the discussion of paragraph (b)(9), above.

The final provision differs substantially from the proposal. Under

the proposed rule, employees performing ``built-up roofing operations

(meaning the application of hot tar or bitumen) on low-pitched roofs''

were to be protected as required in existing Sec. 1926.500(g).

Employees performing other roofing operations on low-slope roofs and

exposed to falling 6 feet (1.8 m) or more to lower levels would have

been covered by paragraph (b)(1) which applies, in general, to any

walking/working surface with unprotected sides and edges 6 feet (1.8 m)

above lower levels. The proposed paragraph was effectively identical

with the provisions of existing Sec. 1926.500(g) for ``built-up''

roofing operations.

OSHA promulgated existing Sec. 1926.500(g) because it recognized

that the use of guardrail systems, safety net systems, and personal

fall arrest systems could pose feasibility problems or greater hazard.

OSHA discussed the reasons for this belief when it published the final

rule for the built-up roofing standard (45 FR 75619). In particular, in

the preamble to that final rule, OSHA stated the following:

Guardrails are often used to provide fall protection and are

required for open-sided floors and platforms by 1926.500(d)(1).

However, although guardrails can be used during construction of a

roof deck, they must be removed prior to the application of roof

waterproofing membranes and related sheet metal work at the roof

edge. According to a report by the engineering firm of Simpson,

Gumpertz and Heger [Citation omitted], the reason guardrails must be

removed is that, unless mounted on a parapet wall, guardrails are

normally mounted on the roof deck and impede the application of the

roof membrane. The use of freestanding guardrail systems as an

alternative is limited since such guardrails must also be moved out

of the way when the membrane is applied near roof edges and thus

they are not a solution to the problem of providing fall protection.

Other potential concerns include the increase in cost and time

required to erect guardrails and the question of whether guardrails

are needed when the work to be performed is not near the roof edge.

These problems exist whether the work being done is a reroofing

operation on an existing building or the application of a new roof

on new construction. [45 FR 75619]

In the 1980 final rule, OSHA also acknowledged that this same

report, prepared for the National Roofing Contractors Association

(NRCA), concluded that guardrails make orderly built-up roofing work

impossible and do not offer the desired protection, since they must be

removed prior to the completion of roof side and edge finishing work.

The report also discussed the reasons other conventional guarding

systems were not appropriate. A full discussion is contained 1980

Federal Register notice. At that time, OSHA concluded as follows:

OSHA believes that the difficulties with conventional guarding

systems (referred to in the standard as ``motion-stopping-safety

(MSS) systems'') during the performance of built-up roofing work,

will be avoided by allowing the use of a warning line and/or safety

monitoring system. OSHA explained that a warning line ``serves to

warn and remind employees that they are approaching or working near

a fall hazard by providing a direct physical contact with the

employee. The contact attracts the employee's attention, enabling

the employee to stop in time to avoid falling off the roof. The

safety monitoring systems is a verbal warning system. OSHA describes

the warning line systems with safety monitoring systems as an

``alternative system of fall protection'' which are ``not intended

to serve as positive fall restraints, but only as warning systems.''

At the time of the proposed rule, OSHA relied on the information

available from the 1980 rulemaking for built-up roofing work. Being

unaware of any fall protection system that could be used in all cases

and thus could eliminate the need for alternative systems such as the

warning line system with safety monitoring system, OSHA proposed to

continue its existing requirements but to seek public comment on other

methods of protecting workers from fall hazards at the edge of low-

sloped roofs (flat roofs) during roofing work. In this regard, OSHA

raised concerns about the height at which fall protection should be

required for work on low-sloped roofs. Comments on this issue and other

concerns regarding paragraph (b)(10) are discussed below.

In addition, the existing provisions used the terms ``ground'' and

``eaves,'' respectively, as the points between which the height

criteria is to be measured. OSHA proposed, instead, to use the terms

``lower levels'' and ``unprotected sides and edges.'' OSHA believed the

proposed language change would eliminate confusion, since some roofs do

not have eaves, and other roofs are greater distances above the ground

than above the nearest lower level (penthouse roofs, for example).

OSHA also proposed to permit built-up roofing work on low-pitched

roofs with a fall distance less than 16 feet without the use of any of

the fall protection systems required for other roofing work or required

for higher work involving ``built-up'' roofing work. This, too, was

consistent with the existing requirements in Sec. 1926.500(g),

discussed above (see 45 FR 75618).

Issue #11 requested comment, including cost and injury data, on

lowering the fall protection threshold for built-up roofing from 16

feet to 6 feet. OSHA stated that the 16-foot exemption for built-up

roofing work was not appropriate and that a 6-foot threshold was both

more appropriate and more consistent with the other provisions of

subpart M. OSHA maintained that the contemplated change would not

affect many built-up roofing employers because the option to use a

safety monitoring system on low-pitched roofs with widths of less than

50 feet would encompass nearly all roofs less than 16 feet above lower

levels.

OSHA received over 70 written comments in response to this issue,

mostly from roofing contractors supporting views expressed by the

National Roofing Contractors Association (NRCA). Virtually all of the

commenters stated that roofs with widths of 50 feet or less were not

necessarily also less than 16 feet above lower levels. Thus, the

commenters felt that their compliance burdens would be greatly

increased if the threshold height for providing fall protection was

reduced to 6 feet. The commenters supported the existing language (16-

foot threshold) as the standard industry practice and as an appropriate

response to fall hazards (Exs. 2-52, 2-58, 2-59, 2-61, 2-72, 2-90, 2-

91, 2-93, 2-111, 2-119, 2-122, 2-141, 2-143, 2-144, and 2-161).

Also, the NRCA commenters favored continuation of the existing

rules with regard to built-up roofing. These commenters stated that

there was no need to protect workers from falling off unprotected sides

and edges of low-slope roofs until the fall distance exceeded 16 feet.

They also stated few injuries have resulted from such falls and that

the cost of providing protection would exceed the benefits.

For example, the American Roofing and Sheet Metal Co. (Ex. 2-86)

commented that ``We have experienced no injuries from falls at roof

perimeters and do not recognize this hazard to be significant compared

to other hazards of roofing work.''

One statistic frequently cited by NRCA commenters indicated that

only one percent of losses were due to falls and most falls were

experienced when workers fell through holes. However, the commenters

did not explain what was meant by ``one percent of losses.''

The H.B. Fishman & Co. (Ex. 2-70) commented, ``Again of the utmost

importance is that holes in the deck, penetrations and other openings

be properly protected. This is where the majority of injuries occur.''

The Roofing Association of Long Island (Ex. 2-144) commented that

``The experience gathered from other contractors as well as our own

employees indicates that incidents of accidents as a result of falls

from the perimeter of the roof are less frequent than the accidents

resulting from falls through roof openings within the perimeter.''

The Florida Service Roofing and Sheet Metal Company (Ex. 2-147)

commented that ``Our experience, spanning 65 years, reveals that falls

from the perimeter of roofs have been so minimal that they can be

considered to have been virtually non-existent.'' OSHA notes that from

the period of 1985-1989, 297 fatalities involving falls from roofs were

investigated by OSHA (Ex. 30). While OSHA cannot state specifically if

all of those falls occurred from the perimeter of roofs, it is

reasonable to assume that the number of fatalities from the roof

perimeter is high.

Other commenters suggested that OSHA revise part of the proposed

provision. Specifically, two commenters (Exs. 2-108 and 2-111) noted

that the proposal implied that on roofs with widths of 50 feet or less,

the use of a safety monitoring system was the only permitted system,

rather than stating that it was an acceptable system. OSHA acknowledges

that proposed paragraph (b)(10) could be misunderstood to allow only

safety monitoring systems when a roof is 50 feet wide or less. The

Agency has revised the proposed language to indicate clearly that on a

roof 50 feet or less in width, the use of a safety monitoring system,

without the warning line, is one of the measures allowed. OSHA allows

the use of a safety monitoring system without the warning line on these

narrow-width roofs because if warning lines were erected as prescribed

in the standard, there would be little roof area remaining in which

work could be performed.

The ACCSH (Tr. 6/10/87; pp. 133-134) recommended that OSHA change

the 16-foot threshold to 6 feet and that safety monitors be allowed

only where employees are working on built-up roofs. Three other

commenters also supported the 6-foot rule (Exs. 2-33, 2-46, and 2-99).

NIOSH (Ex. 2-33) commented that allowing the 16 foot exemption was

``inadequate'' and recommended that a maximum fall distance of 6 feet

be set as appropriate for both low-slope roofs and steep roofs. They

further suggested that the use of safety monitoring systems for flat

and low-slope roofs might be an appropriate way of addressing the

difference in hazards.

While the Roofers Union (Ex. 2-99) supported the 16-foot threshold

in the 1980 rulemaking for existing Sec. 1926.500(g), they opposed the

continuation of that provision in proposed subpart M. Instead, they

urged OSHA to ``promulgate a standard that will effectively protect

roofers against the dangers from fall hazards which they face almost

daily.'' They also questioned whether OSHA should continue to allow the

use of warning line and safety monitoring systems to protect roofers

working on low-slope roofs. The Roofers Union stated the following:

In 1979 we endorsed OSHA's proposed rule to provide for a

warning line on low-pitched roofs primarily because there were no

standards covering the guarding of low- pitched roofs and something

had to be done immediately * * *. We also stated that we would press

for total perimeter protection if the warning line approach did not

prevent injuries or deaths from falls off the roof edge.

The standard (1926.500g) has been in effect now for over 6 years

yet the industry continues to be plagued by the same safety

problems--roof falls. Although there is no statistical evidence to

demonstrate the effectiveness of the standard one way or the other,

workmen's compensation rates for the roofing industry have risen

significantly over the past 6 years. That indicates among other

things that little is being done in the roofing industry to reduce

the incidence of injuries and deaths.

The Roofers Union also cited BLS data from a study on falls which

showed that of 110 falls from roofs, half of these involved workers

falling distances of less than 15 feet. Of these workers, over half

suffered fractures to one or more parts of their body, over 40 percent

suffered muscle sprains, strains or torn ligaments and 9 percent

suffered a concussion.

In conclusion, the Roofers Union stated, ``The data demonstrate

that a significant number of serious injuries occur from falls of less

than 16 feet. So it makes no sense to exclude a significant percentage

of hazardous work from the OSHA standard. And, OSHA has indicated that

these requirements would not place a significant economic burden on the

roofing industry.'' The final recommendation was that total perimeter

protection should be required because the warning line system was not

effective.

OSHA agrees with the Roofers Union that falls of less than 16 feet

pose a significant hazard. OSHA also believes the injuries are related

to the fall distance and the failure of contractors to take any fall

protection measures, rather than the use of warning line systems. For

this reason, OSHA will no longer permit workers exposed to falls

between 6 feet and 16 feet to go unprotected from the fall hazard. OSHA

believes the revised rule appropriately addresses the fall hazards on

low-slope roofs and sets forth appropriate choices of fall protection,

allowing roofing contractors some flexibility without sacrificing the

safety of workers.

OSHA agrees with the commenters who suggested that all employees

engaged in roofing operations who are exposed to the hazard of falling

6 feet (1.8 m) or more to lower levels should be protected in the same

manner from fall hazards. OSHA also agrees with commenters who stated

there is no need to distinguish between the application of hot and cold

materials to determine the appropriate fall protection measures, hence

the final provision will apply to all roofing operations on low-slope

roofs and not just ``built-up'' roofing activities. OSHA notes that the

criteria for warning line systems and safety monitoring systems are

found in paragraphs (f) and (h) of Sec. 1926.502. Employers who use

these systems must comply with all of the criteria and conditions for

use that are specified.

Paragraph (b)(11) (proposed as paragraph (c)) requires employees on

roofs with slopes greater than 4 in 12 (i.e., 4 inches vertical to 12

inches horizontal run) to be protected from falling when the roof has

unprotected sides or edges more than 6 feet (1.8 m) above lower levels

by the use of guardrail systems with toeboards, personal fall arrest

systems, or safety net systems.

The final provision differs from the proposal. The proposed

provision addressed both falls through holes and falls from unprotected

sides and edges of steep roofs. In the final rule, all falls through

and into holes are covered by paragraph (b)(4). Therefore, there is no

need for a separate provision dealing with holes on steep roofs. OSHA

notes that the protective measures required for holes in paragraph

(b)(4) are essentially the same as proposed for holes under the steep

roof provision. Another change in the final rule is that OSHA is

requiring toeboards to be used when guardrail systems are used to

provide fall protection on steep roofs.

The existing rules in subpart M do not specifically address fall

protection requirements for steep roofs. Because of the lack of

specific requirements, provisions outside subpart M have been utilized

as the basis for citations for inadequate fall protection on steep

roofs, including the following provisions: Sec. 1926.28(a) Personal

protective equipment; Sec. 1926.104 Safety belts, lifelines, and

lanyards; Sec. 1926.105 Safety nets; Sec. 1926.451(u)(3) Catch

platforms; as well as the ``General Duty Clause'' (section 5(a)(1)) of

the OSH Act). The final rule explicitly sets out the required fall

protection systems for steep roofs.

NIOSH (Ex. 2-33) supported the requirement to have fall protection

on steep roofs when the fall distance to lower levels exceeds 6 feet

(1.8 m). CAL/OSHA (Ex. 2-15) stated, ``The obvious hazard of the

steepness of the roof, regardless of the eave height, should be

addressed.'' They also suggested that ``On steep roofs of 8 in 12 or

steeper slopes, where the fall down the roof slope itself exceeds 6

feet (1.8 m),'' the use of roof jacks and body belt systems, safety net

systems or positioning device systems would be appropriate. Paragraph

(b)(11) of the final rule will permit employees to work on roof jacks

provided the employee is protected from fall hazards by the use of

guardrail systems with toeboards, safety net systems, or personal fall

arrest systems. While roof jacks provide a foothold, which may reduce

the possibility of falling, they cannot be used as a substitute for

fall protection. The final rule will not permit employers to protect

employees on roof jacks from fall hazards through the use of

positioning devices systems because such systems will not protect

affected employees from fall hazards.

On the other hand OSHA observes, that because falls on steep roofs

can result in workers and materials sliding down the slope, it would be

appropriate to require the use of a toeboard as a standard practice

when guardrail systems were chosen to provide fall protection. OSHA

believes that omitting the toeboard would contribute to worker injuries

since workers will not have any protective device to stop their sliding

descent on the steep roof. OSHA notes that they could, then, slide

right under the midrail and top rail of a conventional guardrail

system.

Paragraph (b)(12) is a new paragraph. OSHA is promulgating

paragraph (b)(12), which was not part of the proposed rule, to set

requirements for employers whose employees are exposed to fall hazards

while erecting precast concrete members and related operations. Under

paragraph (b)(12), employees erecting precast concrete members 6 feet

(1.8 m) or more above a lower level must be protected from falling by

guardrail systems, safety net systems, or personal fall arrest systems,

unless the employer can demonstrate that such systems would be

infeasible or would create a greater hazard at the site where the

affected employees are working. In such a situation, an employer would

be required to develop and implement a fall protection plan which

conforms to Sec. 1926.502(k), discussed below.

An exception is also allowed if another provision in paragraph (b)

allows an alternative fall protection measure, such as covers over

holes. Those alternative measures are also acceptable and do not need

to be documented in a fall protection plan in order to be used.

In the NPRM discussion of proposed paragraph (b)(2), Leading edges,

(51 FR at 42721), OSHA indicated its recognition that it may be

infeasible to protect workers performing precast concrete erection at

the leading edge with guardrail systems, safety net systems, or

personal fall arrest systems. Paragraph (b)(2) of the final rule

provides that employers engaged in leading edge work (which can include

precast concrete erection work) who demonstrate that it would be

infeasible or would create a greater hazard to use conventional fall

protection must develop and implement a fall protection plan which

documents why they believe they cannot provide conventional fall

protection and sets out the alternative fall protection measures that

will be taken. In particular, the employer must establish a controlled

access zone (29 CFR 1926.502(g)) and, at a minimum, implement a safety

monitoring system (29 CFR 1926.502(h)) if no other alternative fall

protection measure has been taken to protect leading edge workers. The

provisions of paragraph (b)(12) are essentially the same as those of

paragraph (b)(2), but extend beyond leading edge work and allow

employers engaged in any work involving the erection of precast

concrete to develop and implement a fall protection plan where they can

demonstrate infeasibility or greater hazard with conventional fall

protection systems. A full discussion of the meaning of

``infeasibility'' and ``greater hazard'' was provided above along with

the discussion of paragraph (b)(2) and applies here also.

Paragraph (b)(12) has been added in response to comments regarding

fall protection for precast concrete construction. Issue #2 of proposed

subpart M asked:

Are there areas or operations in addition to those already

identified in proposed Sec. 1926.501, which have unique fall

protection requirements not addressed by the proposed standards?

Examples of such areas and operations might include carpenters

erecting roof trusses during house construction; steel erectors

working on other than tiered buildings . . . or connectors erecting

wood, precast concrete, and structural members made of other

materials. 51 FR at 42729.

The Agency received several comments from the Precast/Prestressed

Concrete Institute (PCI) (Exs. 2-44, 2-106 and 2-107) regarding the

need for separate fall protection standards for workers engaged in

precast concrete erection.

Based on those comments, OSHA raised Issue M-2 in the January 26,

1988, Notice of Hearing on subparts L, M, and X [53 FR 2048] to solicit

testimony and other information on the concerns raised by PCI.

Specifically, OSHA stated (53 FR 2054):

The [Precast/]Prestressed Concrete Institute (PCI) (Ex. 2-44)

has commented that fall protection for employees erecting precast

concrete components is ``not appropriately covered by the proposed

regulations'' in Subpart M, because, according to the PCI, concrete

erectors, like steel erectors, need more freedom of movement than

proposed Subpart M would permit. Therefore, the PCI suggested that

OSHA revise proposed Subpart M so that precast concrete erection

would be regulated under Subpart R, Steel Erection. At the August 4,

1987, ACCSH meeting, a PCI representative reiterated the view that

connectors of precast concrete members should be provided the same

considerations as connectors of steel members saying [Tr. 212]: ``We

feel that the erection procedures and exemptions for steel are

basically the same as those for precast concrete * * * Basically,

the fall protection of the steel connector, again, would be the same

as that for the precast connector.'' The PCI subsequently submitted

comments (Ex. 2-106 and 2-107) which requested that OSHA exempt

concrete erectors from proposed leading edge protection requirements

in Subpart M and that OSHA exempt hollow core slab erectors from

perimeter protection provisions, except for those in proposed

Sec. 1926.502(h), Safety monitoring systems.

In response, PCI testified at the public hearing (Exs. 6A-9 and 9,

and Tr. 53-82, March 22, 1988) and submitted post-hearing comments

(Exs. 17 and 19), which reiterated the points made in its comments.

OSHA subsequently received additional correspondence from PCI (Exs. 25-

1 and 25-2). In that correspondence, PCI (Ex. 25-1) stated that OSHA's

``* * * lack of understanding of our unique erection problems will

result in the promulgation of rules that will result in endless

litigation and not serve the safety needs of the workers.'' In October

1989, OSHA informed PCI (Ex. 25-3) that the rulemaking record had

closed and that, in any event, the late comments simply repeated

submissions that had already been included in the record.

On February 12, 1990, PCI again wrote to OSHA (Ex. 25-4)

reasserting that compliance with proposed subpart M was not appropriate

to protect employees engaged in precast concrete erection. PCI again

suggested that OSHA either regulate precast concrete under its own

industry specific standard or under subpart R--Steel Erection, because

either alternative would be more applicable than the generic subpart M

standard. That submission also contained a more detailed discussion of

precast concrete erection procedures, including fall protection

procedures. OSHA responded (Ex. 25-5) that it would review the

information presented in the letter and would reopen the record if

significant issues were raised that had not previously been included in

the record.

On May 30, 1990, PCI again wrote to OSHA (Ex. 25-6) and expressed

concern ``* * * relative to OSHA's work to revise the construction

industry safety standards addressing fall protection in both 29 CFR

1926 subparts M and R (Steel Erection).''

On June 15, 1990, OSHA informed PCI that the information presented

in their letters was under review and a decision on further action

would be made at the completion of that review. OSHA determined that

the supplemental submissions from PCI did provide new information which

was relevant to a full consideration of the issues raised by subpart M.

Accordingly, the Agency reopened the rulemaking record (57 FR 34656,

August 5, 1992) for the limited purpose of entering the new information

and to receive comments on it. The comment period ended on November 3,

1992. The Agency reopened the record again (58 FR 16515, March 29,

1993) to allow additional time for PCI and other interested parties to

submit comments. That comment period ended on May 28, 1993. The

comments supported the inclusion of a fall protection plan as an

alternative where employers engaged in precast concrete construction

work were able to demonstrate infeasibility or greater hazard with the

use of conventional fall protection systems. A more thorough discussion

of the comments can be found at Sec. 1926.502(k)--fall protection

plans.

Based on a careful review of the information submitted by PCI and

other rulemaking participants, OSHA has determined that precast

concrete construction entails unique work conditions which should be

specifically addressed by subpart M. The new provision requires

employers who can demonstrate that the use of conventional fall

protection systems would be infeasible or would create a greater hazard

to implement a fall protection plan that complies with Sec. 1926.502(k)

of the final rule. OSHA is providing specific guidance in this notice

regarding what constitutes ``infeasibility'' or a ``greater hazard''

(See Sec. 1926.501(b)(2)). OSHA encourages employers who believe that

the use of a written fall protection plan is appropriate for their

precast concrete construction operations to discuss the basis for their

belief with local OSHA compliance staff. Additional information

regarding the criteria for use of a fall protection plan is provided in

the discussion of Sec. 1926.501(b)(2) of this section and in the

discussion of the criteria for fall protection plans, Sec. 1926.502(k),

as well as in Appendix E to subpart M--Model Fall Protection Plans. The

Agency considers the implementation of a fall protection plan,

outlining alternative fall protection measures, to be a ``last

resort,'' allowed only where the other options for fall protection have

been exhausted.

Paragraph (b)(13), which also was not part of the proposed rule,

requires that employers engaged in residential construction work

protect employees from falls of 6 feet (l.8 m) or more to lower levels

by the use of one of the three conventional fall protection systems

unless such systems are infeasible or would create a greater hazard for

affected employees. In those situations, OSHA requires the employer to

develop and implement a Fall Protection Plan which meets the criteria

of Sec. 1926.502(k), discussed in detail below.

As with paragraph (b)(12) discussed above, if another provision in

paragraph (b) allows an alternative fall protection measure, such as

covers over holes, those alternatives measures are also acceptable and

do not need to be documented in a fall protection plan in order to be

used.

OSHA is adding this new paragraph in response to comments received

on the issues raised in the limited reopening of the rulemaking record

[March 29, 1993; 58 FR 16515], regarding the ability of the residential

construction industry to provide fall protection for certain employees.

In that Notice, OSHA pointed out that Issue #2 of proposed subpart M

(51 FR 42729) had asked if there were areas or operations which had

unique fall protection needs not addressed by the proposed rule. OSHA

specifically mentioned carpenters erecting roof trusses during house

construction as a possible example. OSHA raised these issues in a

reopening notice because t

This text is long and has been trimmed here. Open the source document for the complete record.