[Federal Register Volume 81, Number 223 (Friday, November 18, 2016)]
[Rules and Regulations]
[Pages 82494-83006]
[FR Doc No: 2016-24557]

Vol. 81

Friday,

No. 223

November 18, 2016

Part VII

Book 3 of 3 Books

Pages 82493-83106

Department of Labor

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Occupational Safety and Health Administration

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29 CFR Part 1910

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

Federal Register / Vol. 81 , No. 223 / Friday, November 18, 2016 /
Rules and Regulations

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DEPARTMENT OF LABOR

Occupational Safety and Health Administration

29 CFR Part 1910

[Docket No. OSHA-2007-0072]
RIN 1218[dash]AB80

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

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

ACTION: Final rule.

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SUMMARY: OSHA is revising and updating its general industry standards
on walking-working surfaces to prevent and reduce workplace slips,
trips, and falls, as well as other injuries and fatalities associated
with walking-working surface hazards. The final rule includes revised
and new provisions addressing, for example, fixed ladders; rope descent
systems; fall protection systems and criteria, including personal fall
protection systems; and training on fall hazards and fall protection
systems. In addition, the final rule adds requirements on the design,
performance, and use of personal fall protection systems.
    The final rule increases consistency between the general industry
and construction standards, which will make compliance easier for
employers who conduct operations in both industry sectors. Similarly,
the final rule updates requirements to reflect advances in technology
and to make them consistent with more recent OSHA standards and
national consensus standards. OSHA has also reorganized the
requirements and incorporated plain language in order to make the final
rule easier to understand and follow. The final rule also uses
performance-based language whenever possible to give employers greater
compliance flexibility.

DATES: Effective date: This final rule becomes effective on January 17,
2017. Some requirements in the final rule have compliance dates after
the effective date. For further information on those compliance dates,
see Section XI of the SUPPLEMENTARY INFORMATION section. In addition,
this final rule contains information collections subject to the Office
of Management and Budget (OMB) approval under the Paperwork Reduction
Act, and the Department is submitting requests to OMB to obtain that
approval. The information collections will not take effect until the
date OMB approves the information collection request or the date the
requirement would take effect as explained elsewhere in this document.
The Department will publish a document in the Federal Register to
announce OMB's disposition of the information collection requests.

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

FOR FURTHER INFORMATION CONTACT:
    Press inquiries: Mr. Frank Meilinger, Director, Office of
Communications, OSHA, U.S. Department of Labor, Room N-3647, 200
Constitution Avenue NW., Washington, DC 20210; telephone (202) 693-
1999; email<EMAIL_ADDRESS>    General information and technical inquiries: Mr. Mark Hagemann,
Director, Office of Safety Systems, Directorate of Standards and
Guidance, OSHA, U.S. Department of Labor, Room N-3609, 200 Constitution
Avenue NW., Washington, DC 20210; telephone<PHONE_NUMBER>, email
<EMAIL_ADDRESS>    Copies of this Federal Register document: Copies of this Federal
Register document are available at http://www.regulations.gov, the
Federal eRulemaking Portal. Copies also are available at OSHA Office of
Publications, U.S. Department of Labor, Room N-3101, 200 Constitution
Avenue NW., Washington, DC 20210; telephone<PHONE_NUMBER> (OSHA's TTY
(887) 889-5627). This document, as well as news releases and other
relevant documents, are available on OSHA's website at http://www.osha.gov.

SUPPLEMENTARY INFORMATION:

Table of Contents

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

I. Background
    A. References and Exhibits
    B. Introduction and Basis for Agency Action
    C. Summary of the Final Economic Analysis
    D. Events Leading to the Final Rule
II. Analysis of Risk
    A. Introduction
    B. Nature of the Risk
    C. Fatality and Injury Data
III. Pertinent Legal Authority
IV. Summary and Explanation of the Final Rule
    A. Final Subpart D
    B. Final Sec.  1910.140
    C. Other Revisions to 29 CFR Part 1910
V. Final Economic and Final Regulatory Flexibility Screening
Analysis
    A. Introduction
    B. Assessing the Need for Regulation
    C. Profile of Affected Industries, Firms, and Workers
    D. Benefits, Net Benefits, Cost Effectiveness, and Sensitivity
Analysis
    E. Technological Feasibility
    F. Costs of Compliance
    G. Economic Feasibility and Regulatory Flexibility Screening
Analysis
    H. Regulatory Flexibility Screening Analysis
    I. Sensitivity Analyses
    J. References
VI. Federalism
VII. State-Plan Requirements
VIII. Unfunded Mandates Reform Act
IX. Consultation and Coordination With Indian Tribal Governments
X. Office of Management and Budget Review Under the Paperwork
Reduction Act of 1995
XI. Dates

I. Background

A. References and Exhibits

    This Federal Register document references materials in Docket No.
OSHA-2007-0072, which is the docket for this rulemaking. OSHA also
references documents in the following dockets, which the Agency
incorporates by reference into this rulemaking:
     1990 proposed rule on Walking and Working Surfaces (29 CFR
1910, subpart D)--Docket No. OSHA-S041-2006-0666 (formerly Docket No.
S-041);
     1990 proposed rule on Personal Protective Equipment--Fall
Protection--Docket No. OSHA-S057-2006-0680 (formerly Docket No. S-057);
     2003 reopening of the rulemaking record--Docket No. OSHA-
S029-2006-0662 (formerly Docket No. S-029);
     1994 final rule on Fall Protection in the Construction
Industry--Docket No. OSHA-S206-2006-0699 (formerly Docket No. S-206);
     1983 and 1985 proposed rules on Powered Platforms for
Building Maintenance--Docket Nos. OSHA-S700-2006-0722 and OSHA-S700A-
2006-0723 (formerly Dockets Nos. S-700 and S-700A, respectively); and
     2014 final rule on Electric Power Generation,
Transmission, and Distribution; Electrical Protective Equipment--Docket
No. OSHA-S215-2006-0063 (Formerly Docket No. S-215).
    All of these dockets are available for viewing at http://www.regulations.gov, the Federal eRulemaking Portal.
    Citations to documents in Docket No. OSHA-2007-0072: This document
references exhibits in this rulemaking record, Docket No. OSHA-2007-
0072, as ``Ex.,'' followed by the last sequence

of numbers in the document identification (ID) number. For example,
``Ex. 44'' is a reference to document ID number OSHA-2007-0072-0044 in
this rulemaking docket.
    Citations to the transcripts of the rulemaking hearing: This
document includes citations to the informal public hearing on the
proposed rule. All of the hearing transcripts are included in exhibit
329. Thus, ``Ex. 329 (1/19/2011, p. 75)'' refers to page 75 of the
January 19, 2011, hearing transcript.
    Citations to other dockets: This document also references other
OSHA dockets. Documents in those dockets are cited as the docket number
followed by the last sequence of numbers in the document ID number. For
example, ``Ex. OSHA-S029-2006-0662-0014'' refers to ``Docket No. OSHA-
S029-2006-0662, Ex. 14'' in the 2003 reopening of the rulemaking record
on subparts D and I (formerly Docket No. S-029).
    Docket: The exhibits in this rulemaking docket (Docket No. OSHA-
2007-0072), as well as the dockets OSHA incorporated by reference in
this rulemaking, are available to read and download by searching the
docket number or document ID number at http://www.regulations.gov. Each
docket index lists all documents and exhibits in that docket, including
public comments, supporting materials, hearing transcripts, and other
documents. However, some documents (e.g., copyrighted material) in
those dockets are not available to read or download from that website.
All documents are available for inspection and copying at the OSHA
Docket Office, Room N-2625, U.S. Department of Labor, 200 Constitution
Avenue NW., Washington, DC 20210; telephone number<PHONE_NUMBER> (OSHA
TTY<PHONE_NUMBER>).

B. Introduction and Basis for Agency Action

    Workers in many diverse general industry workplaces are exposed to
walking-working surface hazards that can result in slips, trips, falls
and other injuries or fatalities. According to the Bureau of Labor
Statistics (BLS) data, slips, trips, and falls are a leading cause of
workplace fatalities and injuries in general industry, which indicates
that workers regularly encounter these hazards (see Section II below).
    The final rule covers all general industry walking-working
surfaces, including but not limited to, floors, ladders, stairways,
runways, dockboards, roofs, scaffolds, and elevated work surfaces and
walkways. To protect workers from hazards associated with those
surfaces, particularly hazards related to falls from elevations, the
final rule updates and revises the general industry Walking-Working
Surfaces standards (29 CFR part 1910, subpart D). The final rule
includes revised and new provisions that address, for example, fixed
ladders; rope descent systems; fall protection systems and criteria,
including personal fall protection systems; and training on fall
hazards and fall protection systems. In addition, the final rule adds
new requirements on the design, performance, and use of personal fall
protection systems to the general industry Personal Protective
Equipment (PPE) standards (29 CFR part 1910, subpart I). These and
other measures the final rule incorporates reflect advances in
technology and industry best practices that have been developed since
OSHA adopted subpart D in 1971.
    The final rule also gives employers greater flexibility to prevent
and eliminate walking-working surface hazards. For example, the final
rule, like the construction Fall Protection Standards (29 CFR part
1926, subpart M), gives employers flexibility to protect workers from
falling to a lower level by using personal fall protection systems,
including personal fall arrest, travel restraint, and work positioning
systems; instead of requiring the use of guardrail systems, which the
existing rule mandates. In addition, consistent with section 6(b)(5) of
the Occupational Safety and Health Act of 1970 (OSH Act) (29 U.S.C.
651, 655(b)(5)) the final rule uses performance-based language in place
of specification language, where possible, to increase compliance
flexibility for employers. OSHA believes the flexibility the final rule
provides will allow employers to select and provide the controls they
determine will be most effective in the particular workplace operation
or situation to protect their workers and prevent injuries and
fatalities from occurring.
    The final rule also increases harmonization between OSHA standards,
which many stakeholders requested. Of particular importance, OSHA
increased consistency between the final rule and OSHA's construction
Scaffolds, Fall Protection, and Stairway and Ladder standards (29 CFR
part 1926, subparts L, M, and X), which makes compliance easier for
employers who conduct operations in both industry sectors. The
revisions in and additions to the final rule will allow employers to
use the same fall protection systems and equipment and follow the same
practices when they perform either general industry or construction
activities.
    The final rule also increases consistency by incorporating
provisions from other standards OSHA adopted more recently, including
Powered Platforms for Building Maintenance (29 CFR 1910.66) and
Scaffolds, Ladders and Other Working Surfaces in Shipyard Employment
(29 CFR part 1915, subpart E).\1\ In particular, Sec.  1910.140 drew
personal fall arrest system requirements from Appendix C (Mandatory) of
the Powered Platform standard (Sec.  1910.66). The experience OSHA
gained on that standard shows that those requirements are effective in
protecting workers from fall hazards.
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    \1\ Where necessary, the final rule also revises provisions in
some current general industry standards (e.g., 29 CFR part 1910,
subparts F, N, and R) to ensure that they are consistent with the
final rule (See Section IV(C) below).
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    OSHA also drew many provisions in the final rule from national
consensus standards, including ANSI/ASSE A1264.1-2007, Safety
Requirements for Workplace Walking/Working Surfaces and Their Access;
Workplace, Floor, Wall and Roof Openings; Stairs and Guardrail Systems;
ANSI/ASSE Z359.1-2007, Safety Requirements for Personal Fall Arrest
Systems, Subsystems and Components; and ANSI/IWCA I-14.1-2001, Window
Cleaning Safety Standard. Many stakeholders recommended that OSHA
incorporate the requirements in those standards into the final rule.
OSHA agrees with stakeholders that national consensus standards
represent industry best practices and reflect advancements in
technology, methods, and practices developed in the years since the
Agency adopted the existing rule.
    OSHA also has made the final rule easier to understand and follow
by reorganizing and consolidating provisions, using plain language, and
adding informational tables, illustrations, and appendices. For
example, the final rule adds two non-mandatory appendices to final
Sec.  1910.140 that address planning for, selecting, using, and
inspecting personal fall protection systems (appendix C) and test
methods and procedures for personal fall arrest work positioning
systems (appendix D).
    OSHA's efforts to revise and update the existing walking-working
surfaces standards have been ongoing since 1973. Over that time, OSHA
has gathered and analyzed a large body of data and information on
walking-working surface hazards and methods to prevent and eliminate
them. After careful examination and analysis of the rulemaking record
as a whole, OSHA has determined that the requirements in this final
rule will significantly reduce

the number of worker deaths and injuries that occur each year due to
these hazards, particularly workplace slip, trip, and fall fatalities
and injuries. OSHA estimates that final standard rule will prevent 29
fatalities and 5,842 injuries annually (See Sections II and V).
    OSHA believes that many employers already are in compliance with
many provisions in the final rule; therefore, they should not have
significant problems implementing it. OSHA also has included measures
to make implementation of the final rule easier for employers. The
final rule provides extended compliance dates for implementing some
requirements and applies other requirements only prospectively. For
example, the final rule gives employers as much as 20 years to equip
fixed ladders with personal fall arrest or ladder safety systems.
Moreover, since the final rule incorporates requirements from national
consensus standards, most equipment manufacturers already provide
equipment and systems that meet the requirements of the final rule.

C. Summary of the Final Economic Analysis

    The OSH Act requires OSHA to make certain findings with respect to
standards. One of these findings, specified by Section 3(8) of the OSH
Act, requires an OSHA standard to address a significant risk and to
reduce this risk significantly. (See Industrial Union Dep't v. American
Petroleum Institute, 448 U.S. 607 (1980).) As discussed in Section II
of this preamble, OSHA finds that slips, trips, and falls constitute a
significant risk, and estimates that the final standard will prevent 29
fatalities and 5,842 injuries annually. Section 6(b) of the OSH Act
requires OSHA to determine if its standards are technologically and
economically feasible. As discussed in Section V of this preamble, OSHA
finds that this final standard is economically and technologically
feasible. The table below summarizes OSHA's findings with respect to
the estimated costs, benefits, and net benefits of this standard. The
annual benefits are significantly in excess of the annual costs.
However, it should be noted that under the OSH Act, OSHA does not use
the magnitude of net benefits as the decision-making criterion in
determining what standards to promulgate.
    The Regulatory Flexibility Act (5 U.S.C. 601, as amended) requires
that OSHA determine whether a standard will have a significant economic
impact on a substantial number of small firms. As discussed in Section
V, the Assistant Secretary examined the small firms affected by this
final rule and certifies that these provisions will not have a
significant impact on a substantial number of small firms.
[GRAPHIC] [TIFF OMITTED] TR18NO16.096

D. Events Leading to the Final Rule

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

    Early rulemaking efforts. In 1973, OSHA published a proposed rule
to revise the subpart D standards (38 FR 24300 (9/6/1973)), but
withdrew the proposal in 1976, saying it was outdated (41 FR 17227 (4/
23/1976)). That year OSHA conducted stakeholder meetings around the
country to obtain public comment on revising subpart D. After reviewing
information gathered from those meetings, OSHA determined that it
needed to gather additional scientific and technical data, research,
and information to support effective revisions to subpart D.
    From 1976 through the 1980s, OSHA gathered a large body of
scientific and technical research and information, including:
     Recommendations for fall prevention, ladders, scaffolds,
slip resistance, and handrails from the University of Michigan;
     Studies on guardrails, slip resistance, scaffolds, and
fall prevention from the National Bureau of Standards (now the National
Institute of Standards and Technology);
     Analysis of various walking-working surfaces by Texas Tech
University;
     Accident, injury, and fatality data from the Bureau of
Labor Statistics (BLS); and
     National consensus standards from the American National
Standards Institute (ANSI), American Society of Testing and Materials
(ASTM), and the American Society of Mechanical Engineers (ASME).
    1990 proposed rules. The data, research, and information OSHA
gathered provided the basis for OSHA's 1990 companion proposals to
revise and update the walking-working surfaces standards in subpart D
(55 FR 13360 (4/10/1990)) and add personal fall protection system
requirements to subpart I (55 FR 13423 (4/10/1990)). The two proposals
were interdependent with respect to personal fall protection systems.
That is, the subpart D proposal would have established a ``duty to
provide'' fall protection, including personal fall protection systems
while the subpart I proposal would have established design,
performance, and use criteria for personal fall protection systems.
    OSHA received comments and held an informal public hearing on the
two proposals (55 FR 29224), but did not finalize either.
    1994 final rule revising subpart I. In 1994, OSHA published a final
rule updating the general industry PPE standards (59 FR 16334 (4/6/
1994)). The final rule added new general provisions requiring that
employers conduct hazard assessments; select proper PPE; remove
defective or damaged PPE from service; and provide worker training in
the proper use, care, and disposal of PPE (Sec.  1910.132). It also
revised design, selection, and use requirements for specific types of
PPE. However, the final rule did not apply the new general provisions
to personal fall protection systems or include specific requirements
addressing such systems.
    2003 record reopening. On May 2, 2003, OSHA published a notice
reopening the record on the subpart D and I rulemakings to refresh the
record, which had grown stale in the years since OSHA published the
1990 proposed rules (68 FR 23528). Based on comments and information
OSHA received, including information on significant technological
advances in fall protection, particularly personal fall protection
systems, OSHA determined that a new proposed rule was needed.
    2010 proposed rule. On May 24, 2010, OSHA published a consolidated
proposed rule on subparts D and I (75 FR 28862). The Agency provided 90
days, until August 23, 2010, for stakeholders to submit comments on the
proposed rule, the preliminary economic analysis, and the issues the
Agency raised in the proposal. The Agency received 272 comments,
including comments from workers, employers, trade associations,
occupational safety and health consultants, manufacturers, labor
representatives, and government agencies (Exs. 52 through 326).
    Several stakeholders requested an informal public hearing on the
proposed rule (Exs. 172; 178; 180; 201; 256). OSHA granted the requests
for a public hearing (75 FR 69369 (11/10/2010)), and convened the
hearing on January 18, 2011, in Washington, DC (Ex. 329).
Administrative Law Judge John M. Vittone presided over the four-day
hearing during which 39 stakeholders presented testimony (Ex. 329). At
the close of the hearing on January 21, 2011, Judge Vittone ordered
that the hearing record remain open for an additional 45 days, until
March 7, 2011, for the submission of new factual information and data
relevant to the hearing (Exs. 327; 330; 328). He also ordered that the
record remain open until April 6, 2011, for the submission of final
written comments, arguments, summations, and briefs (Exs. 327; 331-
370). On June 13, 2011, Judge Vittone issued an order closing the
hearing record and certifying it to the Assistant Secretary of Labor
for Occupational Safety and Health (Ex. 373).

II. Analysis of Risk

A. Introduction

    To promulgate a standard that regulates exposure to workplace
hazards, OSHA must demonstrate that exposure to those hazards poses a
``significant risk'' of death or serious physical harm to workers, and
that the standard will substantially reduce that risk. The Agency's
burden to establish significant risk derives from the Occupational
Safety and Health Act of 1970 (OSH Act) (29 U.S.C. 651 et seq.).
    Section 3(8) of the OSH Act requires that workplace safety and
health standards be ``reasonably necessary or appropriate to provide
safe or healthful employment and places of employment'' (29 U.S.C.
652(8)). A standard is reasonably necessary and appropriate within the
meaning of section 3(8) if it materially reduces a significant risk of
harm to workers. The Supreme Court, in the ``Benzene'' decision, stated
that section 3(8) ``implies that, before promulgating any standard, the
Secretary must make a finding that the workplaces in question are not
safe'' (Indus. Union Dep't, AFL-CIO v. Am. Petroleum Inst. (Benzene),
448 U.S. 607, 642 (1980)). Examining section 3(8) more closely, the
Court described OSHA's obligation to demonstrate significant risk:

    ``[S]afe'' is not the equivalent of ``risk-free.'' . . . [A]
workplace can hardly be considered ``unsafe'' unless it threatens
the workers with a significant risk of harm.
    Therefore, before [the Secretary] can promulgate any permanent
health or safety standard, the Secretary is required to make a
threshold finding that the place of employment is unsafe--in the
sense that significant risks are present and can be eliminated or
lessened by a change in practices. (Id. (Emphasis in original)).

    Relying on the U.S. Census' Statistics of U.S. Businesses for 2007,
OSHA estimates that 6.9 million general industry establishments
employing 112.3 million employees will be affected by the final
standard. For the industries affected by the final standard, OSHA
examined fatalities and lost-workday injuries for falls to a lower
level.
    In the proposed rule, the Agency preliminarily concluded that falls
constitute a significant risk and that the proposed standards would
substantially reduce the risk of falls to employees (75 FR 28861,
28865-28866 (5/24/2010)). The analysis of U.S. Bureau of Labor
Statistics (BLS) data from 1992 to 2004 identified an annual average of
300 fatal falls, 213 (71 percent) of which resulted from falls to a
lower level and an annual average of 299,404 non-fatal falls resulting
in lost-workday injuries,

79,593 (26 percent) of which were as a result of falls to a lower
level. The Agency's analysis also estimated that compliance with the
proposed requirements in subparts D and I annually would prevent 20
fatal to a lower level and 3,706 lost-workday injuries due to falls to
a lower level.
    Based on the analysis presented in this section, which OSHA updated
with more recent data, and in the Final Economic and Final Regulatory
Flexibility Screening Analysis (FEA) (Section V), OSHA determines that
workplace exposure to hazards associated with walking-working surfaces,
particularly the hazards of falling to a lower level, poses a
significant risk of serious physical harm or death to workers in
general industry. BLS data from 2006-2012 show that an average of 261
fatal falls to a lower level occurred annually in general industry. In
addition, BLS data for 2006-2012 indicate that an average of 48,379
lost-workday (LWD) injuries from falls to a lower level occurred
annually in general industry.
    OSHA also concludes, based on this section and the FEA, that the
``practices, means, methods, operations, or processes'' the final rule
requires will substantially reduce that risk. Specifically, the Agency
estimates that full compliance with the final rule will prevent 29
fatalities from falls to a lower level and 5,842 lost-workday injuries
from falls to a lower level annually in general industry.

B. Nature of the Risk

    Every year many workers in general industry experience slips,
trips, falls and other injuries associated with walking-working surface
hazards. These walking-working surface hazards result in worker
fatalities and serious injuries, including lost-workday injuries.
Slips, trips, and falls, including falls on the same level, can result
in injuries such as fractures, contusions, lacerations, and sprains,
and may even be fatal. Falls to lower levels can increase the severity
of injuries as well as the likelihood of death. Falls on the same level
can also result in strains and sprains when employees try to ``catch''
themselves to prevent falling.
    There are many walking-working surface hazards that can cause
slips, trips, and falls. These hazards include damaged or worn
components on personal fall protection systems and rope descent
systems; portable ladders used for purposes for which they were not
designed; fixed ladders that are not equipped with fall protection;
damaged stair treads; snow, ice, water, or grease on walking-working
surfaces such as floors; and dockboards that are not properly secured
or anchored.
    Identifying walking-working surface hazards and deciding how best
to protect employees is the first step in reducing or eliminating the
hazards. To that end, the final rule requires that employers regularly
inspect walking-working surfaces. It also requires that employers
assess walking-working surfaces to determine if hazards are present, or
likely to be, that necessitate the use of personal fall protection
systems (Sec. Sec.  1910.132(d); 1910.28(b)(1)(v)). In addition,
employers must train employees on fall hazards and equipment plus the
proper use of personal fall protection systems (Sec. Sec.  1910.30,
1910.132(f)). After employers have assessed the workplace and
identified fall hazards, final Sec.  1910.28 requires employers to
provide fall protection to protect their employees from falls. Final
Sec. Sec.  1910.29 and 1910.140 specify the criteria fall protection
systems must meet, such as strength and performance requirements.
Section A of the FEA provides detailed information on the incidents the
final rule will prevent.

C. Fatality and Injury Data

    Fatalities. The BLS Census of Fatal Occupational Injuries (CFOI)
has listed falls as one of the leading causes of workplace fatalities
for many years. From 1999 to 2010, falls were second only to highway
incidents in terms of fatal injuries. In 2011, slips, trips, and falls
were the third leading cause of fatal occupational injuries and in
2012, the fourth leading cause of these types of injuries. Many fatal
falls occur in general industry. From 2006-2012, approximately one-
third of all fatal falls in private industry were falls to a lower
level in general industry.
    OSHA examined fall fatalities for 2006 to 2012 in industries
covered by the final standard using data from the BLS Census of Fatal
Occupational Injuries (CFOI). Table II-1, summarizing the data in Table
V-6 of the FEA, shows the total number of fatal falls to a lower level
from 2006 to 2012.
[GRAPHIC] [TIFF OMITTED] TR18NO16.097

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

Administrative and Support Services. Although not shown in the table, a
large majority of the fatalities for Administrative and Support
Services--86 percent for the seven-year period 2006-2012--occurred in
the industry concerned with services to buildings and dwellings (NAICS
5617). Based on these data, OSHA estimates that, on average, 261 deaths
per year resulted from falls to a lower level and would be directly
affected by the final standard.
    Table V-7 of the FEA also includes data on fatal falls. That table
displays the number of fatal falls by type of fall and industry sector
for 2006-2010. These data indicate that during this period, there were,
on average, 255 fatal falls to a lower level in general industry
establishments when fatal falls are summed across all affected two-
digit NAICS industries. While the annual number of fatal falls
decreased and then rose since 2006, the average annual number of fatal
falls to a lower level from 2006-2010 (255 fatal falls to a lower
level) and 2011-2012 (274 fatal falls to a lower level) \2\ remains at
approximately the same level. In addition, falls remained one of the
leading causes of workplace fatalities throughout this time, as
discussed above.
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    \2\ Reference year 2011 is the first year in which the Injuries,
Illnesses, and Fatalities (IIF) program used the Occupational Injury
and Illness Classification System (OIICS), version 2.01, when
classifying Event or Exposure, Primary Source, Secondary Source,
Nature, and Part of Body. Due to substantial differences between
OIICS 2.01 and the original OIICS structure, which was used from
1992 to 2010, data for these case characteristics from 2011 forward
should not be compared to prior years.
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    Injuries. OSHA examined lost-workday injuries using data from BLS's
Survey of Occupational Injuries and Illnesses. Falls have been one of
the leading causes of lost-workday injuries for the last several years.
From 2006-2010, falls were consistently the third leading cause of
injuries and illnesses, behind overexertion and contact with objects
and equipment. From 2011-2012, slips, trips, and falls were the second
leading cause of injuries and illnesses, behind only overexertion.
    In addition to being a major source of lost-workday injuries, falls
to a lower level were also some of the most severe. Falls to a lower
level had the second highest median days away from work, a key measure
of the severity of an injury or illness, every year from 2006-2012,
except 2010 (where it was the third highest). BLS data also demonstrate
that the majority of lost-workday falls to a lower level that occurred
in private industry occurred in general industry. More specifically,
for 2006-2012, approximately three-quarters of the lost-workday falls
to a lower level in private industry occurred in general industry.
    Table V-8 of the FEA shows the average number of lost-workday
injuries due to falls in general industry, by type of fall, for 2006-
2012. Based on these data, OSHA estimates that, on average,
approximately 48,379 serious (lost-workday) injuries per year resulted
from falls to a lower level and would be directly affected by the final
standard.
    Table II-2, based on BLS's Survey of Occupational Injuries and
Illnesses, provides additional information about the median number of
days away from work for lost-workday falls to a lower level from 2006-
2012. Table II-2 displays the median number of days away from work
attributed to falls to a lower level for each industry sector and
private industry as a whole. In 2012, for example, the number of median
days away from work for falls to a lower level in private industry as a
whole was 18, while the median days away from work for all lost-workday
injuries and illnesses in private industry as a whole was 8. Similarly,
in 2012, the median days away from work for falls to a lower level in
nearly every general industry sector was higher, and in many cases,
much higher, than the median days away from work for all lost-workday
injuries and illnesses in those sectors. This suggests that falls to a
lower level are among the most severe lost-workday injuries.
[GRAPHIC] [TIFF OMITTED] TR18NO16.098

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

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

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

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

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

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

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

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

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

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

III. Pertinent Legal Authority

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

IV. Summary and Explanation of the Final Rule

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

A. Final Subpart D

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

    The Cargo Tank Risk Management Committee (CTRMC) stated:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

workers perform on infrequent occasions; i.e., employers are not to use
designated areas for lengthy or routine jobs that involve frequent
exposure to fall hazards. However, including ``temporary'' in the
definition is unnecessary because final Sec.  1910.28(b)(13)(ii)
already limits the use of designated areas to work that is both
temporary and infrequent. OSHA did not receive any comments on the
proposed definition and adopts it as discussed.
    Dockboard. In the final rule, dockboard means a portable or fixed
device that spans a gap or compensates for the difference in elevation
between a loading platform and a transport vehicle. The definition also
specifies that dockboards include, but are not limited to, bridge
plates, dock plates, and dock levelers. Examples of transport vehicles
include motor vehicles, trucks, trailers, rail cars, and other
vehicles.
    The final rule uses the term ``transport vehicle'' in place of the
proposed term ``carrier.'' OSHA believes ``transport vehicle'' is clear
and familiar to employers as it is a commonly used term for a cargo-
carrying vehicle. The Agency drew the term from ANSI MH30.2-2005.
    The final rule adds examples of devices that OSHA includes within
the definition of dockboards, including bridge plates, dock plates, and
dock levelers. The Agency believes that providing these examples will
help employers and workers better understand whether devices
manufactured under other names are ``dockboards.'' OSHA notes that the
list of dockboard examples is not exhaustive. That is, any device that
employers use to span a gap or compensate for the difference in levels
between a loading platform and transport vehicle is a dockboard for the
purposes of final subpart D.
    OSHA did not receive any comments on the proposed definition and
adopts the definition with the changes discussed above.
    Equivalent. In the final rule, this term means alternative designs,
equipment, materials, or methods that the employer can demonstrate will
provide an equal or greater degree of safety for workers compared to
the designs, equipment, materials, or methods specified in this
subpart.
    OSHA proposed revising the definition of ``equivalent'' in existing
Sec.  1910.23(g)(6) to incorporate language from the construction
standards for fall protection, stairways, and ladders standards
(Sec. Sec.  1926.450(b); 1926.500(b); and 1926.1050(b)). These
standards specify that the employer has the burden to demonstrate that
the alternate designs, materials, methods, or items will provide an
equal or greater degree of safety for workers than the designs,
materials, methods, or items the final rule specifies or requires. OSHA
did not receive any comments on the proposed definition and finalizes
the term so it is consistent with OSHA construction standards.
    Extension ladder. Final paragraph (b), like the proposed rule,
defines this term as a portable ladder that is non-self-supporting and
is adjustable in length. The final rule consolidates into one term, and
simplifies the language in, the definitions in existing Sec.
1910.23(c)(4) and (d)(4); this existing provision states that an
extension ladder ``consists of one or more sections traveling in guides
or brackets so arranged as to permit length adjustment.'' OSHA believes
that the concise, plain language in the final definition will enhance
understanding of requirements involving extension ladders; moving the
specifications currently in the existing standards to final Sec.
1910.23 also should improve understanding of these requirements.
    The final definition generally is consistent with ANSI A14.1-2007,
ANSI A14.2-2007, and ANSI A14.5-2007. OSHA did not receive any comments
on the proposed definition and adopts it as proposed.
    Failure. Final paragraph (b), similar to the proposed rule and
construction standards (Sec. Sec.  1926.450(b); 1926.500(b); and
1926.1050(b)), defines ``failure'' as a load refusal, breakage, or
separation of component parts. The final definition explains that a
``load refusal'' is the point at which the ultimate strength of a
component or object is exceeded. To illustrate, if the load exceeds the
ultimate strength of a walking-working surface, such as an elevated
work platform, the platform likely will collapse.
    For the purpose of this definition, load refusal includes permanent
deformation of a component part, which is consistent with ANSI/ASSE
A1264.1-2007 (Section 2.3). For example, elongation of a connector that