venous pooling and orthostatic intolerance could result in serious
or fatal injury, as the brain, kidneys, and other organs are
deprived of oxygen.
    Prolonged suspension from fall arrest systems can cause
orthostatic intolerance, which, in turn, can result in serious
physical injury, or potentially, death. Research indicates that
suspension in a fall arrest device can result in unconsciousness,
followed by death, in less than 30 minutes (SHIB 03-24-2004).

    In sum, prompt rescue means employers must be able to rescue
suspended workers quickly enough to ensure the rescue is successful,
i.e., quickly enough to ensure that the employee does not suffer
physical injury (such as injury or unconsciousness from orthostatic
intolerance) or death. Many employers provide self-rescue equipment so
workers can rescue themselves quickly after a fall, ensuring that the
rescue is prompt and risks associated with prolonged suspension are
minimal. OSHA believes the performance-based approach in the final rule
will ensure prompt rescue of workers after a fall, while also giving
employers flexibility to determine how best to provide prompt and
effective rescue in the particular circumstance.
    Commenters uniformly supported the proposed provision (Exs. 138;
153; 184; 221; 222; 242; 243). Clean & Polish said, ``It is a
documented fact that there is a great risk of suspension trauma when
hanging from a harness.'' Accordingly, they recommended that a team of
at least two workers should perform every job assignment and that
workers receive training in self-rescue (Ex. 242). Sunlight also
supported self-rescue, saying it is the quickest form of rescue,
followed by assistance from a coworker trained in rescue. Sunlight
added that, in a medical emergency, they recommend calling the local
fire department (Ex. 227). A number of commenters said they train their
own workers in rescue and require them to practice/demonstrate their
rescue capabilities at least twice a year (Exs. 184; 221; 227; 243).
    The final rule is performance-based and gives employers flexibility
to select the rescue methods that work best for their workers and
worksite. However, OSHA emphasizes that, whatever rescue methods
employers use, they are responsible for ensuring that it provides
prompt rescue. Some commenters said they rely on calling local
emergency responders, which may or may not be adequate. If employers
rely on this method of rescue, they need to ensure that the responders
have the appropriate equipment to perform a high angle rescue and are
trained and qualified to do so. (Also see the discussion of prompt
rescue in final Sec.  1910.140 below.)
    Final paragraph (b)(2)(ix), consistent with proposed paragraph
(b)(2)(viii), the 1991 RDS memorandum, and I-14.1 (Section 5.7.5),
requires that employers ensure the ropes of each RDS are effectively
padded or otherwise protected where they contact edges of the building,
anchorage, obstructions, or other surfaces to prevent them from being
cut or weakened. Padding protects RDS ropes from abrasion that can
weaken the strength of the rope. If employers do not protect RDS ropes,
the ropes can wear against the sharp edges of buildings (e.g.,
parapets, window frames, cornices, overhangs), damaging their
structural integrity and possibly causing them to break.
    The final rule requires that employers ensure the rope padding is
``effective.'' To be effective, padding needs to be, for example,
firmly secured in place and strong and thick enough to prevent
abrasion. To ensure the padding remains effective, employers also need
to inspect it ``regularly and as necessary'' (final Sec.
1910.22(d)(1)).
    OSHA added language to the final rule specifying that employers may
ensure that ropes are padded or ``otherwise protected.'' OSHA believes
the added language gives employers greater flexibility in complying
with final (b)(2)(ix). OSHA recognizes that padding may not be the only
effective measure available to employers. For example, several
commenters said that parapet carpets and rope-wrapper protection are
effective rope protection devices (Exs. 138; 153; 184; 221; 242). Other
available measures include rubber hoses and polyvinyl chloride (PVC)
piping. OSHA believes that various materials are readily available and
used in common industry practice; thus, employers should not have
significant problems complying with the final rule.
    Overwhelmingly, commenters supported the provision (Exs. 138; 153;
184; 221; 222; 242; 243), and OSHA did not receive any comments
opposing the requirement. Therefore, OSHA adopts the provision as
discussed.
    Final paragraph (b)(2)(x), like proposed paragraph (b)(2)(ix),
requires that employers provide stabilization at the worker's specific
work location whenever descents are greater than 130 feet. The purpose
of the stabilization requirement is to reduce the risks of worker
injury when longer descents are made using a RDS.
    For purposes of final paragraph (b)(2)(x), the worker's ``specific
work location'' refers to the location in the descent where the worker
is performing the work tasks that necessitate the use of an RDS. For
example, a window cleaner's specific work location is the window the
worker is cleaning. While using an RDS, workers may have many specific
work locations during a descent, and they must be stabilized at each of
those locations when the descent is greater than 130 feet.
    OSHA uses a performance-based approach in final paragraph
(b)(2)(x). It gives employers the flexibility to use intermittent or
continuous stabilization. In addition, the final rule allows employers
to use any method of stabilization (e.g., suction cups, rail and track
system) that is effective to protect workers from adverse environmental
effects, such as gusty or excessive wind.
    OSHA notes that the 1991 RDS memorandum included a requirement for
``intermittent'' stabilization on descents in excess of 130 feet.\41\
Similarly, the I-14.1 standard, which also requires stabilization on
descents greater than 130 feet, specifies that stabilization may
include continuous, intermittent, or work station stabilization
(Section 5.7.12). The I-14.1-2001 standard identifies suction cups as
an example of work station stabilization.
---------------------------------------------------------------------------

    \41\ Shortly after OSHA issued the 1991 RDS memorandum, the
Agency confirmed that employers could use suction cups to meet the
stabilization requirement in the memorandum (Letter to Mr. Michael
Bell, July 31, 1991, available on OSHA's website at: http://www.osha.gov/portable_ladders/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_id=22722).
---------------------------------------------------------------------------

    In the proposed rule, OSHA requested information on commonly used
methods of stabilization and on other methods that may increase worker
safety. The vast majority of commenters

said suction cups are the method they most use for stabilization (Exs.
138; 163; 184; 221; 222; 241; 242). Some commenters said they use
different methods for stabilization, but only mentioned suction cups,
and said suction cups is their ``primary'' method (Exs. 163; 184; 221;
242; 329 (1/19/2011, p. 436)).
    Sunlight said that some buildings have permanent rail or track
systems to provide stabilization (Ex. 227). TRACTEL North America
(TRACTEL) also said they use ``mulling and track,'' designed for use by
powered platforms for stabilization, to stabilize RDS (Ex. 329 (1/19/
2011, p. 436)). TRACTEL added that mulling and track stabilization
systems provide greater protection because the stabilization is
continuous, while suction cups only provide intermittent protection
(Ex. 329 (1/19/2011, p. 436)).
    Many commenters supported the RDS stabilization requirement for
work operations involving descents greater than 130 feet (Exs. 138;
147; 151; 215; 222; 241; 227; 356), and a number of commenters
supported the use of suction cups as an effective stabilization method
(Exs. 138; 151; 152; 222; 241).
    However, a number of commenters said stabilization is not
necessary. They indicated there was no need for a stabilization
requirement because the prohibition against using RDS in adverse or
hazardous weather is adequate and a more protective approach (Exs. 163;
184; 221; 227; 241; 242; 243). Mr. Terry, of Sparkling Clean,
explained:

    Every incident that can be partially abated by stabilization can
be totally abated by substituting a restriction from working in
adverse weather restrictions. Suspended workers using [RDS] only
need stabilization during adverse weather conditions. . . .
    [Suction cups] can certainly be used for stabilization, if a
worker chooses to work in adverse conditions that should have been
avoided in the first place . . . (Ex. 163).

    Ms. McCurley, of SPRAT, also said the proposed requirement was not
necessary:

    Sometimes stabilization is required, and when stabilization is
required, the stabilization needs to be adequate to the situation.
But, stabilization is not necessarily required just as a matter of
course. . . . [T]hat requirement tends to come from the scaffold
industry, which does require stabilization all the time, because
that's what scaffolds do. They have to have stabilization. But,
because of the individual not having nearly the wind load--a wind
load on this table, because it looks a lot like an airplane wing, is
going to have a much different effect than the same wind load on
your body standing there (Ex. 329 (1/19/2011, pgs. 167-168)).

    Nevertheless, Mr. Terry and other commenters said they provide
stabilization devices (primarily suction cups) and use them on descents
as short as 10 feet (Exs. 163; 184; 221; 242; 329 (1/19/2011, p. 62)).
Mr. Terry pointed out that his company uses the suction cups ``for
positioning to keep us in front of the glass, not for stabilization
against the effects of the wind'' (Ex. 329 (1/19/2011, p. 337)).
    Mr. Diebolt, of Vertical Access, did not oppose the concept of
stabilization, but opposed OSHA's 130-foot trigger:

    Now, the 130-foot tie-offs, I have essentially the same
objections. It seems arbitrary for the kind of work at least that we
do, it's unnecessary. . . . Granted we're doing light work, making
observations and notes and that sort of thing. Occasionally, we have
done some work like take core samples out of a concrete structure
using a coring rig drill rig hung from a separate line. And under
those conditions, you do actually have to put in a bolt or something
to hold you to the building . . . when you're on a long pendulum,
when you're on a long tether.
    But making it mandatory seems arbitrary and sort of eliminates
the possibility of the flexibility of doing the work (Ex. 329 (1/21/
2011, pgs. 139-140)).

    However, the major objection to the proposed rule was not to the
proposed regulatory text, but rather with the use of suction cups as a
stabilization method. The Glass Association of North America (GANA), a
trade association representing the architectural and glazing industry,
recommended that OSHA not to allow the use of suction cups for worker
stabilization:

    Glass is a brittle material and, as such, can break without
warning and vacate the window framing system. Glass installed in
commercial and residential buildings is designed to withstand
external loads, primarily wind events, with a certain safety factor.
. . . In other words, breakage cannot be eliminated in brittle
materials like glass. There is no way to guarantee a specific lite
of glass will not break under the loads exerted by workers as they
move vertically and horizontally back and forth across the glass
lites. . . . The use of suction cups may be sufficient in certain
conditions to cause the glass to break and vacate the opening,
particularly in the event the RDS fails and the worker is left to
rely upon the suction cups used for stabilization . . . to support
his/her weight.
    GANA urges OSHA, in its final rule, to reject the use of suction
cups as an approved employee work location stabilization device for
RDS. . . . Their use does not satisfy the safety criteria OSHA has
established for this rulemaking proceeding: ``to be effective, fall
protection systems must be both strong enough to provide the
necessary fall protection and capable of absorbing fall impact so
that the forces imposed on employees when stopping falls do not
result in injury or death'' (Ex. 252).

    Mr. Gartner, of Weatherguard, and Mr. Coleman, of JOBS, opposed the
use of suction cups for the same reasons as GANA (Ex. 215; 329 (1/19/
2011, pgs. 259-260)). Mr. Gartner said:

    The use of suction devices for stabilization is problematic. The
glass industry strongly discourages them and the window wall people
are robustly against them. They are devices used at whim. The loads
that they apply to a surface are totally unknown as there are
numerous barrier bowls that influence them and they're applied to
surfaces that have never been rated for these pinpoint concentrated
loads.
    Applying a device to glass seems reckless when we're all aware
of glass's characteristics and lack of strength. Furthermore, as
glass ages, it becomes more brittle and it loses strength, just
another variable to make their use totally uncontrolled (Ex. 329 (1/
19/2011, pgs. 259-260)).

    Mr. Coleman also stated:

    In order for Work Station Stabilization to be safe, the worker
must attach to a component of the building curtain wall that is
designed for and capable of providing the stabilization required.
Presently most Work Station Stabilization is done by using suction
cups attached to the glass pane. The glass is typically not designed
for such point loading; it is designed for a wind load spread out
over the entire surface of the glass (Ex. 215).

Therefore, Mr. Coleman concluded that the final rule should not allow
suction cups, which provide only intermittent stabilization, as the
primary stabilization device (Ex. 356). Rather, he said OSHA should
define ``Work Station Stabilization'' as: ``a means to stabilize
suspended access equipment by securing the worker or suspended access
equipment to an approved anchor point on the exterior of the building
surface,'' thus ensuring continuous stabilization (Ex. 215). Mr.
Schoch, of TRACTEL, agreed with Mr. Coleman's recommendation (Ex. 329
(1/19/2011, p. 439)).
    Several workers, based on personal experience, also opposed the use
of suction cups, calling the devices ``unsafe'' (Exs. 311; 316; 329 (1/
19/2011, pgs. 5, 8, 15, 18, 19, 61, 62); 329 (1/20/2011, p. 222)). For
instance, Mr. Rosario, of SEIU Local 32BJ, stated:

    I believe the use of suction cups fails to provide adequate
protection. Suction cups are unreliable because they get dirty and
fail to maintain suction. I remember having to clean 20-story
buildings, sometimes with multiple stops per floor. At least half
the time I applied the [suction] cup, it released during the
cleaning and I had to apply it again (Ex. 311).

    Mr. Rosario also said the support offered by suction cups ``usually
only lasts for a few seconds'' (Ex. 329 (1/19/2011, p. 19)). Mr.
Rosario added that

usually he had to clean suction cups four or five times per descent
(Ex. 329 (1/19/2011, p. 86)). Mr. McEneaney, with SEIU Local 32BJ, said
suction cups were not reliable stabilization devices because they leave
the worker ``de-stabilized during the movement from one floor to
another'' (Ex. 329 (1/19/2011, p. 15)). However, most commenters said
they primarily use suction cups for stabilization, and did not indicate
they were not effective (Exs. 138; 163; 184; 222; 227; 241; 242).
    After reviewing the rulemaking record, OSHA decided, for several
reasons, to adopt the stabilization requirement as proposed. First,
OSHA believes, and many commenters agreed, that stabilization of RDS is
necessary to protect workers on descents greater than 130 feet. The
effects of wind gusts, microbursts, and tunneling wind currents on
longer RDS ropes is particularly severe and likely to increase the risk
of injury to workers. For instance, increases or changes in the wind
can cause a significant pendulum effect on the long RDS ropes, and will
cause workers not stabilized to swing a great distance away from or
into the building, possibly causing injury or death. For example, the
RDS accident data analysis Mr. Terry submitted indicated that strong
wind gusts (more than 35 mph) swung two workers using RDS 30 feet away
from a building (Ex. 163).
    In addition, even a single wind gust or a sudden drop in the wind
speed can initiate this pendulum effect on RDS ropes and destabilize
the workers using them. Moreover, when RDS ropes are long, the
slightest wind movement also can cause the ropes to sway (i.e.,
pendulum effect) and swing or propel workers into the building. OSHA
believes that requiring stabilization in these situations will prevent
RDS ropes from swaying and buffeting workers against the building.
    Mr. Terry's accident analysis demonstrates what can happen when
workers are not using stabilization, and how using stabilization could
prevent such cases. Three RDS accidents in that analysis involved wind:
     Window cleaner cleaning 50-story building became stranded
in descent equipment line as a result of a wind gust;
     Window cleaner was stuck between 12th and 13th floor and
managed to rest on narrow window ledge. Winds that were gusting 35 mph
caught his ropes and wrapped them around an antenna on the west side of
the building so worker was unable free to himself; and
     Two window cleaners were left dangling from a building
when their lines became tangled during a windy rain shower. Wind was
gusting about 36 mph. The workers were stuck between the 11th and 14th
floors and blown 30 feet away from the building (Ex. 163).
    OSHA believes that stabilization, as required by this final
standard, could prevent many such incidents.
    Second, while OSHA agrees that employers must not allow workers to
perform suspended work in hazardous weather and gusty or excessive
winds, the Agency also recognizes that adverse conditions can suddenly
occur without warning. When such conditions occur, employers must
ensure that workers using RDS have stabilization methods immediately
available so they can protect themselves from the effects of the wind,
even if all they are doing is descending to stop work due to hazardous
weather conditions. OSHA notes that even those commenters who asserted
that stabilization is not necessary because weather restrictions can
totally abate the hazard, also noted that they regularly use and rely
on stabilization devices, even on descents as short as 10 feet (Exs.
163; 184; 221; 242).
    Third, the final rule is consistent with the I-14.1-2001 national
consensus standard. The I-14.1-2001 standard also requires that
employers ensure workers using RDS have stabilization at their work
station on all descents greater than 130 feet (Section 5.7.12). The I-
14.1-2001 standard reflects best industry practices.
    With regard to suction cups, for the following reasons OSHA decided
not to prohibit their use under the final rule. First, OSHA believes
that suction cups provide effective stabilization for workers using
RDS, particularly in long descents. The record shows that suction cups
are an effective and easy-to-use device that helps keep workers
positioned or stabilized at their specific work location (Exs. 137;
138; 147; 153; 163; 184; 298).
    OSHA received a comment from GANA stating that suction cups are not
safe or effective to use for stabilization (Ex. 252). GANA's comment
appears to indicate that they believe suction cups are a type of
personal fall protection system, and concludes suction cups are not
effective because the cups are not ``strong enough to provide the
necessary fall protection and capable of absorbing fall impact so that
the forces imposed on employees when stopping falls do not result in
injury or death'' (Ex. 252). GANA also says suction cups are not
effective because they cannot support the worker's weight if the RDS
and personal fall arrest system both fail (Ex. 252). However, OSHA
agrees with IWCA's post-hearing comments that GANA's description of the
purpose and use of suction cups is not accurate (Ex. 346). As IWCA
points out, and OSHA agrees, ``Suction cups are not intended to be part
of the fall protection system and they are not part of the fall
protection system'' (Ex. 346).
    The second reason for allowing suction cups is that OSHA believes
suction cups can provide stabilization and protection when sudden
weather conditions occur while the worker is using an RDS, even if
workers use the suction cups only to safely descend due to excessive
wind. As Mr. Terry said, ``In the event of a sudden unforeseen weather
hazard, the [RDS user] . . . can very easily . . . utilize the suction
cup. . . . This method of stability can even be performed while
descending out of harm's way'' (Ex. 329 (1/19/2011, p. 329)).
    Third, OSHA believes that suction cups are widely used and accepted
by employers and workers who use RDS, even by those employers who doubt
the need for stabilization, because the devices have a track record of
being effective, and economical. As far back as July 31, 1991, OSHA
allowed employers to use suction cups to meet the stabilization
requirement in the 1991 RDS memorandum. IWCA said that, since 1991, the
use of suction cups in conjunction with RDS is widespread among window
cleaning companies and workers in the United States and other countries
(Ex. 346). Over that period, neither OSHA nor IWCA are aware of any
data or evidence indicating that a significant problem exists with
using suction cups. Although GANA said it is not safe to use suction
cups on glass, they did not provide any data indicating that suction
cups are causing glass windows to break (Ex. 252). Moreover, according
to IWCA, a 2010 GANA press release said their members did not have any
record of windows breaking when window cleaners were using suction cups
(Ex. 346). OSHA notes that a review of the rulemaking record failed to
show that suction cups cause anything more than a few isolated cases of
window breakage. For example, Mr. John Capon, of Valcourt, reported
that each year his company only had to replace 15 to 20 windows on the
approximately 4,000 buildings they clean 2-3 times each year because of
suction cup-related damage (Ex. 329 (1/19/2011, p. 372, 399)).
    Finally, the performance-based final rule allows, but does not
require, the use of suction cups for stabilization. Employers are free
to use other devices, and some commenters said they use other
stabilization methods, such as rail

and track systems, that provide continuous stabilization (Exs. 163;
184; 221; 242; 329 (1/19/2011, p. 436)). Based on the above discussion,
OSHA concludes that stabilization is essential at specific workplaces
where descents are greater than 130 feet and is finalizing the
provision as proposed.
    Final paragraph (b)(2)(xi) is a new provision added to the final
rule that requires employers to ensure no worker uses an RDS when
``hazardous weather conditions'' are present. The final provision also
identifies some examples of weather conditions that OSHA considers
hazardous for workers using RDS: Storms and gusty or excessive wind.
    OSHA's general industry standard on powered platforms (Sec.
1910.66) and construction standard on scaffolds (Sec.  1926.451) also
prohibit elevated work when certain weather conditions are present.
Specifically, the powered platforms standard prohibits using powered
platforms in winds in excess of 25 mph, and requires that employers
determine wind speed based on ``the best available information, which
includes on-site anemometer readings and local weather forecasts, which
predict wind velocities for the area'' (Sec.  1910.66(i)(2)(v)). The
construction standard prohibits work on scaffolds during storms or high
winds ``unless a competent person has determined that it is safe for
employees to be on the scaffold and those employees are protected by
personal fall arrest systems or wind screens'' (Sec.  1926.451(f)(12)).
    The I-14.1 standard also prohibits window cleaning operations and
RDS use when the ``work area is exposed to excessive winds,'' which the
standard defines as ``any wind which constitutes a hazard to the
worker, public or property'' (Sections 3.7 and 5.7.12). The I-14.1 also
requires that employers train workers in the effects of wind on RDS
operations, and make workers aware of ``the potential of sudden
climatic changes such as wind gusts, micro bursts or tunneling wind
currents'' when they perform descents over 130 feet (Section
5.7.11(a)).
    In the preamble to the proposed rule, OSHA requested comment on a
number of issues regarding hazardous weather conditions including the
following (75 FR 28886):
     Should the final rule prohibit RDS use in certain weather
conditions? If so, what conditions?
     How should employers determine whether weather conditions
are hazardous?
     How should OSHA define excessive wind?
     Should the final rule prohibit RDS use if winds reach a
specific speed? If so, what speed?
     Should the final rule require that employers monitor winds
speeds? If so, how?
    Overwhelmingly, commenters supported prohibiting the use of RDS, as
well as suspended scaffolding, in inclement or hazardous weather (Exs.
151; 163; 184; 221; 222; 227; 241; 242; 243; 329 (1/19/2011, p. 329)).
They also agreed that conditions such as ``thunderstorms, lightning;
hail, high winds, hurricane, snow and ice storms'' were hazardous.
Sunlight added that heavy rain and extreme cold also make RDS use
hazardous: ``Rain can affect the operation of the working line but the
use of rope that is essentially waterproof can negate this problem.
Very cold weather stiffens the rope and especially wet rope can be a
hazard'' (Ex. 227).
    In addition, some commenters said that as the length of rope during
a drop increases, the effects of wind on RDS can increase (Exs. 147;
329 (1/19/2011, pgs. 253, 291-292)). As mentioned in the proposed rule,
the greater the length of rope used for a descent, the greater the
adverse effects of environmental factors such as wind gusts,
microbursts, or tunneling wind currents, and the greater the risk of
injury to workers (75 FR 28886). OSHA notes that some window cleaning
companies disagreed that greater heights pose greater wind effects on
RDS (Exs. 222; 247; 329 (1/19/2011, p. 329)). Dana Taylor, of Martin's,
said their accident analysis files did not show any RDS accidents
occurring due to excessive wind (i.e., ``wind gusts, microbursts or
tunneling wind currents'') (Ex. 222). Sam Terry of Sparkling Clean
said:

    The adverse effects of environmental factors do not affect rope
access any more than they affect suspended scaffolding. In
actuality, users of rope access have the ability to get themselves
and their equipment out of harm's way should unexpected weather
hazards suddenly appear much quicker than users of suspended
scaffolding.
    In the event of a sudden unforeseen weather hazard, the user of
rope access can very easily use their hands, arms, legs, and feet to
hold on to parts of the building or structure or to utilize the
suction cup as long as a smooth surface is available. This method of
stability can even be performed while descending out of harm's way.
(Ex. 329, 1/19/2011, p. 329)).

    Commenters also had different viewpoints about defining
``excessive'' wind. Some commenters said winds were excessive and
dangerous when they reached 25 mph (Exs. 227; 329 (1/19/2011, p. 411)),
while others said winds in excess of 15 mph were too high to use RDS
(Exs. 138; 151; 152; 222; 329 (1/19/2011, p. 329)). For instance, John
Capon of Valcourt said: ``I don't work . . . in more than 10 or 15
miles per hour [wind] and I almost look at that as normal. That seems a
little awkward to me because that's not very windy at all. When it gets
to 20 and 25 miles per hour, to me it gets very dangerous'' (Ex. 329
(1/19/2011, p. 411)).
    Several stakeholders in the window cleaning industry indicated that
including a 15-mph or 25-mph wind speed limit in the final rule was not
necessary. Texas Window Cleaning Company said: ``Not many window
cleaners are going to risk their health on wind, storm or other
increments of bad weather. They know and are trained when, where and
how to postpone the cleaning'' (Ex. 218).
    Other window cleaning companies indicated that water ``blowback''
stops window cleaning operations long before winds reach 15 mph to 25
mph (Exs. 151; 163; 329 (1/19/2011, pgs. 213-214)). Mr. Adkins, of
Corporate Cleaning, explained:

    I've never had anybody work at 15 miles an hour and never will
because that, in my opinion, is too high, both for a boatswain's
chair, a swingstage, a scaffold. Also, I might add there's something
else that happens with window washing and that's the blowback
effect. Window washers don't like to do their work over, and at a
certain level of wind, you wind up with dirty water blowing on clean
windows . . . which, of course, the customer doesn't like. They want
us to come back, do it over. So, consequently, that's a lower level
normally than anything where you have to worry about safety. Most
normal window washers will shut down and we support this, we fully
support this because I don't want the phone call from the property
manager. Most window washers will shut down before they reach an
unsafe level, before they come anywhere near it. The most I think
I've ever seen our company working is in 15-mph winds (Ex. 329 (1/
19/2011, pgs. 213-214)).

    For companies that use RDS to perform operations that do not have
the ``built-in monitoring'' capability for blowback of water, several
commenters said, ``[I]t would seem to me that a 15 mph limit is
reasonable'' (Exs. 163; 221).
    The American Wind Energy Association (AWEA), however, opposed
adding any wind-speed restriction to the final rule because it would be
``detrimental'' to the wind energy industry, which works in windy areas
(Ex. 178). AWEA said that OSHA should allow employers to establish
their own ``detailed policies and [job hazard analyses] for work in
inclement weather'' (Ex. 178). Mr. Diebolt, of Vertical Access, also
agreed that employers should be able to set their own weather policies:

    Just a word about weather and changing site conditions. Wind has
been a concern and understandably. But you can understand after
AWEA's testimony this morning that a wind effect of somebody hanging
on the outside of a turbine or working on top of a nacelle is
entirely different from somebody working on a bridge, pier, abutment
or the side of a building (Ex. 329 (1/21/2011, pgs. 139-140)).

With regard to monitoring wind speed, several window cleaning companies
indicated that it was not necessary because ``blowback'' of water is an
adequate measure (Exs. 138; 163; 222). That said, some of these
companies recommended that employers monitor weather reports in their
area and notify workers of changes that would prohibit the use of RDS
(Exs. 151; 163; 222). Sunlight noted that ``the use of [B]lackberry,
PDAs, internet and cell phones give the employer the tools to monitor
weather conditions in real time'' (Ex. 227).
    OSHA agrees with commenters who said the final standard must
prohibit the use of RDS when weather conditions are hazardous for
workers and the equipment. As the record and OSHA standards indicate,
workers using RDS are vulnerable to sudden weather changes such as wind
gusts, microbursts, and wind tunneling. Gusty and excessive winds can
cause workers using RDS to swing into buildings, resulting in possible
injury or death.
    OSHA believes that employers' support of a mandatory prohibition on
RDS during windy weather indicates that they are aware of the hazards
posed by inclement weather. That said, the record indicates that what
constitutes ``hazardous'' weather and ``excessive'' wind is dependent
on the type of work performed when using RDS. For window cleaning, the
record shows that water blowback acts as a reliable sign that winds
have become excessive, even if they are well below 15 mph. However, for
other jobs it may be safe to use RDS at higher wind speeds, depending
on the type of job performed. For instance, the record indicates that
using an RDS below 130 feet may be safe when winds approach 25 mph, but
hazardous when using RDS at heights approaching 300 feet, or when the
length of the descent rope is long.
    In light of the many variables of RDS use, OSHA decided that using
a performance-based approach in the final rule is the most effective
way to cover varying worksite and job conditions. Under the
performance-based final rule, employers must evaluate or analyze the
worksite and job variables in light of existing weather conditions. If
that analysis indicates that weather conditions are hazardous and winds
are excessive, the employer must ensure that no employee uses an RDS.
OSHA believes this approach will best ensure that employers provide an
adequate level of safety, and take appropriate measures to protect
workers in each specific work operation. Moreover, OSHA believes the
performance-based final rule will not impose significant burdens on
employers. The record shows that employers said they already monitor
on-site weather conditions to determine whether to proceed with or
postpone the job.
    OSHA also believes the performance-based approach obviates the need
to require in the final rule that employers conduct on-site weather
monitoring or use specific weather-monitoring systems. The record shows
that many employers currently use various electronic tools to monitor
local weather forecasts.
    Final paragraph (b)(2)(xii), like proposed paragraph (b)(2)(x),
requires that employers ensure equipment is secured by a tool lanyard
or similar method to prevent it from falling. Examples of equipment
include tools, squeegees, and buckets. The purpose of this provision is
to protect workers and the public below from being struck by falling
equipment. The final rule is consistent with the I-14.1-2001 standard
(Sections 3.10 and 5.7.15), and supplements the falling object
requirements in final Sec.  1910.28(c) (Protection from falling
objects).
    Several commenters, including IWCA, supported the requirement (Exs.
138; 151; 153). However, Mr. Donaldson, of Sunlight, said the provision
was not practical or needed (Ex. 227). In particular, he stated that
tool bungees are imperative to the window cleaning business, but a
serious impediment to the use of squeegees or other tools. Therefore,
he suggested the following alternative to the final rule:

    The danger of workers below being struck by falling equipment is
minimal. Workers rarely work directly below other workers. The tools
themselves are light and blunt and could not cause serious injury
unless dropped from a great height. . . . Requiring window cleaners
to wear hard hats would be a more practical solution than tool
bungees (Ex. 227).

AWEA also suggested additional alternatives:

    [T]here are various ways to protect workers from falling objects
in the wind industry. Workers are prohibited to work below other
workers when using items that can fall. In addition, workers often
use tool tethers for equipment. Typically, tools are hoisted in tool
buckets versus being carried by workers. This practice allows the
trained employee free use of his hands and mitigates the potential
for tools falling out of workers' pockets (Ex. 329 (1/21/2011, p.
12)).

    OSHA does not agree with Sunlight's comment for several reasons.
First, OSHA believes the performance-based approach in the final rule
assures that employers have maximum flexibility in meeting the
requirement to secure equipment (e.g., tools, squeegees, buckets) that
workers use. Many different types of tool lanyards and similar methods
are currently available to secure equipment. Tool lanyards and other
securing equipment are available in many types, lengths, and load
capacities, and a worker can secure the equipment at various points,
including the worker's wrist, tool belt, harness, and seat board.
    Second, Mr. Donaldson did not provide any explanation about how or
why tool bungees are a ``serious impediment'' to using squeegees and
other tools. OSHA did not receive any other comments supporting Mr.
Donaldson's claim.
    Third, OSHA disagrees with Mr. Donaldson's assertion that falling
tools will not cause serious injury if they hit workers below. Many of
the tools employees use in suspended work can be heavy and sharp (e.g.,
a bucket of cleaning water or the corner at the end of a squeegee).
Tools can cause injury to various parts of the body, especially if
dropped from significant heights. In any event, Mr. Donaldson's
recommendation that employees wear head protection when they work below
elevated workers, such as window cleaners, will not protect other
persons who also may be below.
    With regard to the controls AWEA identified, OSHA believes that
tethering controls is one way employers can comply with the final rule.
As to the other controls AWEA suggested, OSHA believes that securing
equipment is the most protective option because it removes the hazard
of equipment falling and hurting workers. Putting tools in buckets and
prohibiting employees from working below other workers, as AWEA
suggests, does not prevent equipment from dropping and, in the case of
prohibiting work below the worker, requires ongoing monitoring by the
employer to be effective. Thus, OSHA believes that the final rule
establishes the most protective control, and likely the most efficient
one. Accordingly, OSHA adopts the requirement that employers ensure
that equipment used in RDS work is secure to prevent it from falling
and injuring workers and the public.
    Final paragraph (b)(2)(xiii), like proposed paragraph (b)(2)(xi),
requires

that employers protect RDS ropes from exposure to open flames, hot
work, corrosive chemicals, and other destructive conditions that could
damage or weaken the ropes. This requirement will prevent damage to
ropes that could lead to failure. Failure of a suspension or fall
arrest line could seriously injure or kill a worker.
    The performance-based approach in final paragraph (b)(2)(xiii)
gives employers flexibility in determining how to protect RDS ropes
from damage. OSHA believes that this approach is appropriate for the
final rule because there are various controls available to protect RDS
ropes from damage. This approach also is consistent with the I-14.1-
2001 standard, which prohibits the use of hazardous or corrosive
materials that could ``endanger the . . . safety of the worker or may
affect the safe operation of equipment'' (Section 3.5).
    A number of commenters supported the provision (Exs. 138; 151; 153;
184; 221; 222; 243), and OSHA did not receive any comments opposing the
provision, and finalizes the provision as proposed.
Section 1910.28--Duty To Have Fall Protection and Falling Object
Protection
    Final Sec.  1910.28 is the first of three new sections in subpart D
that consolidate requirements pertinent to fall protection and falling
object protection. The new sections are:

 Sec.  1910.28--Duty to have fall protection and falling object
protection;
 Sec.  1910.29--Fall protection systems and falling object
protection--criteria and practices; and
 Sec.  1910.30--Training.
    Final Sec.  1910.28 specifies the areas and operations where
employers must ensure that workers have fall and falling object
protection and what type(s) of protection employers may use. The
criteria for fall and falling object protection that employers use to
comply the duties imposed by Sec.  1910.28, and the training workers
who use those systems must receive are in Sec. Sec.  1910.29 and
1910.30, respectively. OSHA notes that Sec.  1910.140 specifies
criteria for personal fall protection systems that employers must meet
when their workers use these systems.
    OSHA believes these sections along with the general requirements in
Sec.  1910.22, taken together, establish a comprehensive approach to
fall and falling object protection. OSHA believes this approach will
ensure a better understanding of the final rule, fall hazards, and fall
protection systems; provide flexibility for employers when choosing a
fall protection system and falling object protection; ensure the
systems they choose will be effective; and most importantly, will
reduce significantly the number of fall injuries and fatalities in
general industry.
    Final Sec.  1910.28, like the proposed rule, consolidates most of
the general industry fall and falling object protection requirements
throughout subpart D. OSHA patterned this section after the
construction fall protection standard (29 CFR 1926.501, Duty to have
fall protection). OSHA draws the range of fall protection options in
the final rule, for the most part, from the construction standard.
These options include engineering controls (e.g., guardrails, safety
net systems), personal fall protection systems (e.g., personal fall
arrest systems, travel restraint systems, positioning systems), and
administrative measures (e.g., designated areas). OSHA strived to make
the final rule consistent with the construction standard, when
appropriate. The record shows a number of employers have workers who
perform both general industry and construction activities.
    There are several ways in which OSHA made the final rule consistent
with the construction fall protection standard. For example, the final
rule provides for control flexibility. This rule, like the construction
fall protection standard, allows general industry employers, similar to
construction employers, to protect workers from fall hazards by
choosing from a range of accepted conventional fall protection options.
The existing general industry standard does not allow this flexibility
and mandated the use of guardrail systems as the primary fall
protection method (e.g., see existing Sec.  1910.23(c)).
    The 1990 proposed revision of subpart D continued to require the
use of guardrail systems. However, in the 2003 notice reopening the
record, OSHA acknowledged that it may not be feasible to use guardrails
in all workplace situations (68 FR 23528, 23533 (5/2/2003)) and
requested comment on whether the Agency should allow employers to use
other fall protection systems instead of guardrails. Commenters
overwhelmingly favored this approach, which the construction fall
protection standard adopted in 1994. In response to comments and OSHA's
history and experience with the construction fall protection standard,
the Agency proposed in 2010 to allow employers to select from a range
of fall protection options instead of requiring employers to comply
with the existing mandate to use guardrail systems.
    OSHA is adopting the proposed approach for several reasons. First,
the final rule's control flexibility reflects longstanding OSHA policy
first incorporated in the 1994 construction fall protection standard.
OSHA's history and experience with the construction standard indicates
that its control flexibility approach has been effective. In addition,
stakeholders responding to the proposed rule overwhelmingly supported
this approach and there was little opposition to providing greater
flexibility in controlling fall hazards.
    Second, the fall protection systems that the final rule allows
employers to use (guardrail systems, safety net system, personal fall
protection systems) are accepted conventional fall protection systems
that OSHA has determined provide an appropriate and equal level of
safety. Moreover, allowing employers to select the least costly fall
protection system from those controls that provide equal protection
also ensures the final rule meets OSH Act requirements that a standard
be cost effective (Cotton Dust, 452 U.S. at 514 n. 32; Lockout/Tagout
II, 37 F.3d at 668).
    Third, OSHA believes giving employers greater control flexibility
in selecting fall protection systems allows them to select the system
or method that they determine will work best in the particular work
operation and location and draw upon their experience successfully
protecting workers from fall hazards. OSHA believes that the process of
determining the best fall protection system for the specific work
activity will improve safety because employers will need to evaluate
the conditions present in each specific workplace and consider factors
such as exposure time, availability of appropriate attachment points,
and feasibility. Similarly, it also will allow employers to consider
and select the fall protection system that enables workers to perform
the job most efficiently, thereby reducing workers' exposure to fall
hazards.
    Fourth, providing control flexibility allows general industry
employers to take advantage of advances in fall protection technology
developed since OSHA adopted the existing rule. For example, neither
safety net systems nor personal fall protection systems were developed
until after OSHA adopted the existing rule.
    Fifth, greater control flexibility makes the final rule consistent
with the construction fall protection standard, which makes it easier
for employers to comply with the final rule and thereby should increase
compliance. To illustrate, making the final rule consistent with the
construction standard ensures that employers who

have workers engaged in both general industry and construction
activities are able to use the same fall and falling object protection
while performing both types of activities. It eliminates the need to
purchase different fall protection systems when their workers switch
from performing general industry operations to construction activities,
which ensures that the final rule is a cost-effective approach for
eliminating or reducing fall hazards.
    Finally, as mentioned, providing greater control flexibility is
part the final rule's comprehensive approach to fall protection that
also includes new requirements on system criteria and use; regular
inspection, maintenance and repair; and fall hazard and equipment
training. OSHA believes this comprehensive approach will provide
equivalent or greater protection than the existing rule. As a result,
OSHA believes that the additional flexibility and consistency achieved
by this final rule in providing fall protection will reduce worker
deaths and injuries. OSHA's history and experience with the
construction standard confirms that its comprehensive approach to fall
protection has been effective.
    As mentioned, stakeholders supported incorporating control
flexibility in the final rule (e.g., Exs. OSHA-S029-2006-0662-0224;
OSHA-S029-2006-0662-0252; OSHA-S029-2006-0662-0306; OSHA-S029-2006-
0662-0365). For example, Northrop Grumman Shipbuilding (NGS) commented:

    We applaud the agency's work to recognize modern methods and
technologies that are now available to ensure adequate fall
protection for employees. Our experience is that no single method is
effective in all potential fall situations and that a menu of proven
methods and techniques . . . works best (Ex. 180).

    Uniseal, Inc. said:

    OSHA should allow employers to responsibly choose any type of
fall protection in proposed Sec. 1910.28 that the employer can
demonstrate will be appropriate for the specific work location and
activities being performed (Ex. OSHA-S029-2006-0662-0345).

    Clear Channel Outdoor agreed, saying:
    Clear Channel Outdoor and employers in the outdoor advertising
industry should be permitted to choose appropriate fall protection,
depending upon the location and type of structure. (Ex. OSHA-S029-2006-
0662-0308)

    The National Grain and Feed Association (NGFA) said:

    OSHA should not require guardrails as the primary means of fall
protection but allow employers the flexibility to choose the most
appropriate fall protection system that is appropriate to the
specific work situation and activities being performed.
    [E]mployers evaluate each work situation to determine which
option (e.g., guardrails, cages, fall arrest systems, etc.) is the
most appropriate and effective (Ex. OSHA-S029-2006-0662-0223).

    Duke Energy said OSHA should allow general industry employers to
``select from the list of options'' like the construction fall
protection standard:

    The construction industry standard allows employers to select
fall protection from a list of options. All of the options provide
equivalent protection. Employers should be allowed to use the option
that fits the specific situation. The factors that employers use
when selecting fall protection options include (1) duration of the
job; (2) experience of the workers involved; (3) installation costs;
(4) availability of fall protection at the location. There are times
when the installation of guardrails is technically ``feasible'' but
adds costs that are unnecessary, since other systems (such as a
personal fall arrest system) provide equivalent protection (Ex.
OSHA-S029-2006-0662-0310).

    Some stakeholders, however, raised concerns about providing greater
control flexibility. The American Federation of State, County and
Municipal Employees (AFSCME) commented, ``Although we understand the
need for flexibility, we believe employers should use guardrail systems
and other engineering controls whenever possible, as is stated in the
existing standard'' (Ex. 226). Thomas Kramer of LJB, Inc., expressed
concerns that the proposed control flexibility would not be as
protective as the existing rule's requirement to use guardrail systems
to protect workers from fall hazards, stating:

    The hierarchy of control is something that is essential in the
area of safety, and OSHA's failure to include something on this . .
. is a significant omission. While there are a number of effective
abatement options in the proposed regulation--and I understand that
many considerations are involved in the cost/benefit analysis for
hazard abatement--I still believe that it is a material oversight to
remove the hierarchy and state that the options outlined provide
``equivalent protection.''
    The hierarchy of control clearly compares the effectiveness and
``defeatability'' of a protective system. Employing the hierarchy of
control to evaluate abatement options is fundamental, and
eliminating its application will lead to more use of a harness and
lanyard than ever before. Although this can be an effective way to
protect someone from a fall hazard, personal protective equipment is
definitely not the safest and is not equal to engineering controls
or passive fall protection (Ex. 204).

    As discussed above, OSHA believes the comprehensive approach to
fall protection that the final rule, like the construction fall
protection standard, incorporates will provide equivalent or greater
protection than the existing rule. OSHA is only permitting employers to
use those accepted conventional fall protection systems that the Agency
has determined to provide an appropriate and equal level of protection.
The greater flexibility the final rule affords employers will allow
them to select from those fall protection systems that provide equal
protection the option that works best in the specific situation and is
the most cost-effective protective measure capable of reducing or
eliminating fall hazards. Moreover, the comprehensive approach in the
final rule, like the construction fall protection standard, recognizes
that, in some instances, it may not be possible to use guardrail
systems or safety net systems to protect workers from falls. For
example, some commenters said employers may not be able to install
permanent systems such as guardrails when they do not own the building
or structure on which their workers are working. OSHA believes the
final rule addresses the concerns of these commenters without limiting
employer flexibility or compromising worker safety.
    OSHA notes that the final rule also limits fall protection choices
in some situations where the Agency determined that guardrail systems
are necessary to protect workers from falling. For example, in final
paragraphs (b)(4) and (5) of this section, OSHA specifically requires
the use of guardrails on dockboards and runways and similar walkways,
respectively.
    In addition to control flexibility, there are other ways in which
OSHA made the final rule consistent with the construction fall
protection standard. OSHA increased the consistency between the general
industry and construction fall protection standards by including a
provision similar to the construction standard addressing work on low-
slope roofs (final paragraph (b)(13)). Workers on these walking-working
surfaces perform both construction and general industry activities and
OSHA believes that uniform requirements should apply to both
activities. Final paragraph (b)(13), like the construction fall
protection standard, allows employers to use designated areas instead
of conventional fall protection systems when workers are performing
work that is both infrequent and temporary at least six feet from the
edge of a low-slope roof, while also ensuring that employers protect
workers working closer to the edge using conventional systems (e.g.,
guardrail, personal fall arrest, or travel

restraint systems). As mentioned, OSHA believes that an important key
to protecting workers is allowing employers the flexibility to select
the fall protection system or method that will work best for their
particular work activities or operations, thereby allowing employers to
consider factors such as exposure time, availability of appropriate
attachment points, and feasibility of compliance.
    Consistent with the construction standard, the final rule requires
that employers also must train their workers working in designated
areas in the use of warning lines (see final Sec. Sec.  1910.29(d) and
1910.30(a)).
    Finally, OSHA increased the consistency of the general industry
standard with the construction fall protection standard by organizing
this final rule in a format that is similar to the construction
standard. OSHA believes that the reorganized format will increase
employer understanding of, and compliance with, the final rule.
    Many commenters supported making the general industry and
construction industry fall protection rules consistent (Exs. 111; 157;
165; 176; 212; 225; 236). For example, American Airlines (AA) supported
making the general industry and construction standards uniform because
they said it is ``nonsensical to have different fall protection
requirements for similar--and sometimes identical--hazards across
construction and general industries'' (Ex. 194).
    However, Mr. Kramer, of LJB, Inc., expressed doubts about whether
making the final rule similar to the construction fall protection
standard will produce a significant decrease in fatalities. He claimed
that fatality data in the years following adoption of the construction
fall protection standard showed an increase in fall fatalities. OSHA
does not find his argument convincing. Mr. Kramer does not clearly
identify the source or scope of the data. At one point he suggests the
data are from BLS, and at another point he indicates the data are from
another source. In addition, it is unclear whether the data to which he
refers are for construction or for all private industry fatalities. He
did not provide any of the data itself. In any event, as explained in
more detail in the Analysis of Risk and FEA (Sections II and V), there
are a significant number of fall fatalities in general industry, and
OSHA believes the final rule will be effective in reducing those
numbers.
    The final rule also establishes criteria and work practices
addressing personal fall protection systems (Sec.  1910.140). These
criteria include minimum strength and load, locking, and compatibility
requirements for components of personal fall protection systems, such
as lines (vertical lifelines, self-retracting lines, and travel
restraint lines), snaphooks, and anchorages. The work practices include
requiring employers to ensure inspection of personal fall protection
systems before each use, and to ensure that a competent or qualified
person inspects each knot in a lanyard or vertical lifeline. OSHA
believes these criteria and work practices, in conjunction with the
training and retraining requirements in the final rule, provide a
combination of controls and redundancies that will help to ensure that
personal fall protection systems are effective in protecting workers
from falls hazards.
Paragraph (a)--General
    Final paragraph (a)(1), like the proposed provision, requires
employers to provide protection for workers exposed to fall and falling
object hazards. It also specifies that, unless stated otherwise, the
protection employers provide must comply with the criteria and work
practices set forth in Sec.  1910.29, Fall protection systems and
falling object protection--criteria and practices. In addition, final
paragraph (a)(1) clarifies that personal fall protection systems must
comply with the criteria and work practices in Sec.  1910.140, Personal
fall protection systems.
    Fall hazard identification is particularly important when workers
work in a ``designated area'' or under other work situations where
employers do not provide conventional fall protection systems.
Additionally, when general industry employers contract with other
employers to perform jobs and tasks at the worksite, OSHA also requires
that the host employer and contract employer work together to identify
and address fall hazards. One method of accomplishing this requirement
is to follow the guidance specified by appendix B of 29 CFR part 1910,
subpart I, Non-Mandatory Compliance Guidelines for Hazard Assessment
and Personal Protective Equipment Selection. National consensus
standards provide another resource for identifying and controlling fall
hazards. For example, ANSI/ASSE Z359.2-2007, Minimum Requirements for a
Comprehensive Managed Fall Protection Program, provides procedures for
eliminating and controlling fall hazards (Ex. 29).
    OSHA notes that the requirements in proposed paragraph (a)(2),
which address the strength of walking-working surfaces, have been moved
to final Sec.  1910.22(b), which establishes requirements for maximum
intended loads applied to walking-working surfaces. OSHA believes this
change more clearly emphasizes that all walking-working surfaces must
have the strength and structural integrity to support workers safely,
not just those surfaces and work conditions requiring fall protection.
    Final paragraph (a)(2) lists seven situations in which the
requirements in Sec.  1910.28 do not apply:
     Portable ladders (final paragraph (a)(2)(i));
     When the employer is inspecting, investigating, or
assessing workplace conditions or the location at which work is to be
performed prior to the start of work or after all work has been
completed. However, this exception does not apply when fall protection
systems or equipment meeting the requirements of Sec.  1910.29 have
been installed and are available for workers to use. If fall protection
systems are present, workers must use them while conducting pre-work
and post-work inspections, investigations, or assessments of workplace
conditions (final paragraph (a)(2)(ii));
     Fall hazards presented by the exposed perimeters of
entertainment stages and the exposed perimeters of rail-station
platforms (final paragraph (a)(2)(iii));
     Powered platforms covered by Sec.  1910.66(j) (final
paragraph (a)(2)(iv));
     Aerial lifts covered by Sec.  1910.67(c)(2)(v) (final
paragraph (a)(2)(v));
     Telecommunications work covered by Sec.  1910.268(n)(7)
and (n)(8) (final paragraph (a)(2)(vi)); and
     Electric power generation, transmission, and distribution
work covered by Sec.  1910.269(g)(2)(i) (final paragraph (a)(2)(vii)).
    The first two exceptions, specified in final paragraphs (a)(2)(i)
and (ii), are new additions to the final rule. OSHA added language
specifically excepting portable ladders to clarify that employers only
have to provide fall protection on fixed ladders. The National Chimney
Sweep Guild (NCSG) (Exs. 150; 240; 268; 269; 329 (1/18/2011, pgs. 254-
348); 365) pointed out that in the proposed rule OSHA did not exclude
portable ladders from the duty to have fall protection, and expressed
concern that, by default, the rule would cover portable ladders under
the ``catch-all'' provision (final paragraph (b)(15), Walking-working
surfaces not otherwise addressed). The fall protection requirements in
the proposal were to apply only to fixed ladders, not portable ladders.
Therefore, OSHA agrees with NCSG that adding a specific exception

to the final rule clarifies this requirement.
    The final rule also adds an exception when workers are inspecting,
investigating, or assessing (collectively referred to as
``inspecting'') workplace conditions prior to the start of any work or
after completing all work. However, once any work begins, employers
must provide workers performing inspections (inspectors) with, and
ensure that they use, fall protection where required by this section.
Moreover, this exception does not apply when properly installed fall
protection systems or equipment meeting the requirements of Sec.
1910.29 are available for use. The existing rule does not exclude pre-
work or post-work inspections from fall protection requirements. OSHA
drew the exception from the construction fall protection standard
(Sec.  1926.500(a)(1)).
    Several commenters urged OSHA to add this exception to the final
rule (Exs. 111; 150; 157; 176; 177; 212; 225; 240; 268; 269; 329 (1/18/
2011, pgs. 254-348); 365). First, some commenters said it was not
necessary for workers conducting pre-work or post-work inspections to
use fall protection. For example, American Insurance Association (AIA)
said the final rule should recognize that certain tasks that workers
(e.g., claims adjustors and loss-control personnel) perform on roofs
have ``lower risks'' because ``these tasks are usually conducted in
good weather and normally expose employees to a fall hazard only for a
short time, if at all'' (Ex. 157). Allstate Insurance Company
(Allstate) agreed, adding that insurance inspectors (and adjustors)
only access roofs infrequently to inspect damage (Ex. 212).
    Littler Mendelson, P.C., said, ``Employees who inspect, investigate
or assess workplace conditions and perform no physical work should be
exempt from the requirements of fall protection, provided the employee
has received the training specified in Section 1910.30'' (Ex. 111). AIA
added that all of their workers who perform inspections receive
training in safe roof access, and are well aware of the proximity of
unprotected sides (Ex. 157). Allstate also said that workers performing
inspections are more aware of their location than other workers (Ex.
212).
    A number of commenters said OSHA should add an exception because
requiring inspectors to use fall protection would expose them to
greater, and additional, hazards (Exs. 111; 150; 157; 177; 212; 225;
240; 268; 365). For instance, Littler Mendelson said, ``By allowing
such employees to perform their inspection duties without fall
protection, OSHA would avoid the greater fall hazards incurred by
employees who must access elevations carrying the tools and materials
required to install fall protection for the inspectors'' (Ex. 111).
Commenters also said that requiring inspectors to use fall protection
would pose greater hazards because it would expose them to fall hazards
for greater periods of time. Littler Mendelson said requiring
inspectors to use fall protection would expose them to fall hazards for
longer than it takes to perform the inspection (Ex. 111). NCSG agreed,
explaining that it would take longer to get to, install, and remove
anchors than the time it takes to conduct the inspection (Exs. 150;
240; 268; 269; 329 (1/18/2011, pgs. 254-348); 365). NCSG said the vast
majority of their work is chimney cleaning and inspection in which
chimneys are cleaned from the ground and workers only access the roof
for a few minutes to inspect the chimney at the conclusion of the job
to verify the cleaning operation is complete (Ex. 150). NCSG also said
that chimney sweeps perform pre-inspections on roofs to identify
whether repairs or other maintenance work may be needed. The fall
protection exception in final paragraph (a)(2)(ii) would cover both of
these inspections.
    Similarly, Roofing Consultants Institute, Inc. (RCI) said that
complying with the proposed rule would require spending increased time
on roofs to anchor and position fall protection systems, therefore
increasing worker exposure to falls (Ex. 225). AIA, Allstate, Confrere
Strategies on behalf of the National Association of Mutual Insurance
Companies (Confrere Strategies), and Farmers Insurance Group of
Companies (Farmers) also voiced the same argument (Exs. 157; 176; 177;
212).
    Several commenters complained that requiring inspectors to use fall
protection would be infeasible and ``unduly burdensome'' (Exs. 150;
157; 176; 177; 212; 235). Allstate said the proposed requirement was
infeasible because the insurance company does not own or control the
properties that its adjusters inspect and does not have permission to
install fall protection systems (Ex. 212). AIA indicated that the
proposed requirement was infeasible, and that an exception was
necessary for the insurance industry to continue its work. However, AIA
did not provide any explanation regarding why the proposed requirement
was infeasible (Ex. 157). RCI said the proposed rule was unreasonably
burdensome because it did not provide any discernible benefits (Ex.
225).
    Two commenters, Allstate and Farmers, indicated that inconsistency
between the proposed rule and the construction fall protection
standard, and lack of clarity about which standard would apply to
inspectors, would cause confusion and pose an unreasonable burden on
employers (Exs. 157; 176). Specifically, Allstate believed that the
construction exception covered the activities of insurance adjusters,
but was unsure whether inspecting damaged property is subject to the
general industry rule or the construction rule. Farmers pointed out:

    Currently, neither the Proposed Rule nor the construction fall
protection requirements make clear whether a claims adjuster's
inspection and assessment of damaged property before and after
construction is considered ``construction work'' covered by 29 CFR
Sec.  1926.500(a) or whether such inspection activities would be
subject to the General Industry Standards under the Proposed Rule
(Ex. 176).

    Finally, some commenters said OSHA's rationale for allowing the
exception for the construction industry also should apply to general
industry inspectors (Exs. 157; 177; 212; 225). For example, RCI said,
``[W]ork practices used by RCI members performing site visits . . .
such as [on] roofs would most likely be identical for both general and
the construction industry'' (Ex. 225). Confrere Strategies said:

    The 1994 rationale for the insurance and inspection exception
remains today. Subjecting inspectors and adjusters to fall
protection standards would be overly burdensome and infeasible and
would subject employees to fall hazard for greater periods of time.
Incorporation of specific exemption language in Subpart D is
consistent with prior regulations, reflects the realities of
insurance inspection and claims adjustment operations and would
eliminate any potential confusion related to the definition of
``construction activities'' (Ex. 177).

AIA added, ``AIA supports harmonization of the fall protection
requirements in the Construction and General Industry Standards. In
furtherance of that goal, we recommend incorporating into the proposed
rule the exception to fall protection requirements for inspection,
investigation and assessment activities contained in the Construction
Industry Standard'' (Ex. 157).

    OSHA recognizes that requiring workers to use fall protection when
conducting inspections prior to, and after completion of, work may not
be feasible in some isolated or limited situations. For example, as
Allstate said, the insurance companies are unlikely to own the
structures the inspectors are

inspecting, and it may not be possible to obtain permission to install
fall protection equipment, such as anchors (Ex. 212). Therefore, OSHA
added a limited exception to the final rule for pre-work and post-work
inspections activities.
    However, as mentioned earlier, unlike the exception in the
construction fall protection standard, final paragraph (a)(2)(ii) does
not apply when fall protection systems or equipment already are
installed on the structure where an inspector will conduct a pre-work
or post-work inspection, that is, when fall protection systems are
installed, workers performing pre-work and post-work inspections, like
all other workers, must use them.
    OSHA believes that limiting the application of the exception to
pre-work and post-work is appropriate. The Agency believes that, where
fall protection equipment already is installed, there is no reason why
inspectors should not use it like all other workers working on the same
walking-working surface must. To illustrate, where anchors and self-
retracting lifelines meeting the requirements of Sec.  1910.29 already
are installed on a roof, OSHA believes that attaching a harness should
not increase inspectors' exposure to the fall hazard in any appreciable
way, while taking this action ensures that they can safely conduct the
inspection. When inspectors have to climb fixed ladders equipped with
ladder safety systems or self-retracting lifelines for personal fall
arrest systems to inspect damage or assess maintenance needs, OSHA
believes it is feasible for these workers to attach their harnesses to
the existing equipment without difficulty or increasing exposure time.
    OSHA notes that evidence in the record indicates that an increasing
number of buildings and fixed ladders are equipped with anchorages and
ladder safety or personal fall arrest systems, respectively. Unlike
pre-work and post-work inspections in the construction industry, in
general industry, buildings and structures already exist and already
may have fall protection equipment installed. Therefore, OSHA believes
that a number of situations currently exist in which it may be feasible
to use fall protection when conducting pre-work and post-work
inspections, and that these situations are likely to continue
increasing.
    The third exception to the requirement to provide fall protection,
specified in final paragraph (a)(2)(iii), applies to fall hazards
presented by exposed perimeters of entertainment stages and rail
station platforms; OSHA carried this exception over from the proposed
rule. The use of guardrails or other fall protection systems could
interfere with performances on stage, or create a greater hazard to the
performers than would otherwise be present. OSHA recognizes that there
may be circumstances when fall protection may be feasible in these
occupational settings, and encourages employers in these settings to
use fall protection when possible, such as during rehearsals. OSHA did
not receive any comments opposing this exception, and adopted it as
proposed.
    Paragraphs (a)(2)(iv) through (vii), like the proposed rule,
specify that the final rule does not apply to powered platforms (Sec.
1910.66), aerial lifts (Sec.  1910.67), telecommunications (Sec.
1910.268), or electric power generation, transmission, and distribution
(Sec.  1910.269). Other general industry standards address those
operations and equipment, and include provisions requiring employers to
provide and ensure workers have and use fall protection. OSHA received
one comment on these exceptions. Ameren Corporation agreed that final
Sec.  1910.28 should not apply to work that Sec.  1910.269 covers (Ex.
189). OSHA adopted the proposed exceptions with only minor editorial
changes, for clarity.
Paragraph (b)--Protection From Fall Hazards
    Final paragraph (b), like the proposed rule, sets forth the
requirements on the types of fall protection systems that employers
must select and use to protect workers from fall hazards while working
in specific workplace areas, situations, and activities (final
paragraph (b)(1) through (15)). The final rule allows employers to use
any one or more of the fall protection systems listed for the
particular area, situation, or activity, including:
     Guardrail systems--barriers erected to prevent workers
from falling to a lower level (final Sec.  1910.21(b));
     Safety net systems--passive fall protection systems that
arrest a worker from falling to a lower level when a fall occurs.
Employers must install safety net systems as close as practicable below
the surface where workers are working, and extend the systems beyond
the outermost projection of the workstation;
     Personal fall protection systems--a type of conventional
fall protection system that protects a worker from falling, or safely
arrests a worker's fall if one occurs. They include personal fall
arrest, and travel restraint and positioning systems, but not rest
lanyards (final Sec.  1910.140(b));
     Personal fall arrest systems--a type of personal fall
protection system used to arrest workers from falling to a lower level
when a fall occurs. These systems consist of an anchorage, connector,
and body harness. A personal fall arrest system also may include a
lanyard, deceleration device, lifeline, or combination of these items
(final Sec.  1910.140(b));
     Travel restraint systems--a type of personal fall
protection system used to limit a worker's travel to prevent exposure
to a fall hazard. Travel restraint systems consist of a combination of
an anchorage, connector, lanyard, and body support. Unlike personal
fall arrest systems, travel restraint systems do not support the
worker's weight. Rather, the purpose of these systems is to prevent
workers from reaching the fall hazard, such as an unprotected side or
edge (final Sec.  1910.140(b)).
     Ladder safety systems--a system designed to eliminate or
reduce the possibility of falling from a fixed ladder. A ladder safety
system usually consists of a carrier (i.e., a flexible cable or rigid
rail track), a safety sleeve (i.e., a moving component that travels up
and down on the carrier), lanyard, connectors, and body harness (final
Sec.  1910.21(b));
     Positioning systems (work-positioning systems)--a type of
personal fall protection system designed to support a worker in a fixed
location, on an elevated vertical surface (e.g., fixed ladders), so the
worker can work with both hands free (final Sec.  1910.140(b));
     Handrails--rails used to provide workers a handhold for
support (final Sec.  1910.21(b)); and
     Designated areas--a distinct portion of a walking-working
surface delineated by a perimeter warning line in which workers may
perform work in certain situations without using additional fall
protection (final Sec.  1910.21(b)).

OSHA believes each of the fall protection systems listed for a
particular situation are effective and appropriate in those situations.
In this regard, OSHA notes that the final rule only permits employers
to use designated areas on low-slope roofs (final paragraph (b)(13)).
The proposed rule permitted employers to use designated areas for
unprotected sides and edges (proposed paragraph (b)(1)(ii)), wall
openings (proposed paragraph (b)(7)(ii)), and walking-working surfaces
not otherwise addressed (proposed paragraph (b)(13)(ii)).
    After reviewing the rulemaking record, as well as OSHA's letters of

interpretation addressing the use of controlled access zones and
warning line systems under the construction fall protection standard,
OSHA believes that designated areas must be limited to only ``a few,
very specific situations'' (see, e.g., letter to Mr. Keith Harkins (11/
15/2002) \42\). To illustrate, the construction standard only permits
the use of a warning line system for roofing work on low-slope roofs
(Sec.  1926.501(b)(10)), and the use of controlled access zones for
overhand bricklaying and related work (Sec.  1926.501(b)(9)). The
construction standard also allows the use of controlled access zones
for some leading edge work, for precast concrete erection, and in
residential construction, rather than the broad category of unprotected
sides and edges (Sec.  1926.502(k)), and then only when employers can
demonstrate that it is infeasible or creates a greater hazard to use
conventional fall protection equipment.
---------------------------------------------------------------------------

    \42\ OSHA letter to Mr. Keith Harkins available at: https://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_id=24552.
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    Applying the rationale in the construction standard to general
industry, the final rule limits the use of designated areas to work on
low-slope roofs (final paragraph (b)(13)). OSHA believes that the use
of designated areas is appropriate on flat or gently sloping surfaces
or when workers and work are located a safe distance from a fall
hazard, such as a roof edge. However, OSHA does not believe that
designated areas provide adequate protection from fall hazards on steep
or vertical surfaces or for work performed near an unprotected edge or
side, such as narrow walking-working surfaces. (See further discussion
of designated areas in final paragraph (b)(13), below.)
    OSHA received several comments on the use of designated areas.
David Hoberg, with DBM Consultants, supported limiting the use of
designated areas because ``it is a huge opening for abuse'' (Ex. 206).
He suggested limiting the use of designated areas to those situations
that existed prior to publication of this final rule, are unique to the
work such that the same work is not done at other locations using
standard methods, and when a certified safety professional or
professional engineer with experience in the work and conditions
approves use of a designated area (Ex. 206). As discussed in more
detail below (final Sec.  1910.28(b)(13)), OSHA is limiting the use of
designated areas to low-slope roofs and to work more than 6 feet from
the edge. Employers may use designated areas for work that is more than
6 feet and less than 15 feet from the edge if it is both infrequent and
temporary. If the work is not temporary or infrequent, the employer may
use a designated area if the work is more than 15 feet from the roof
edge. The Agency believes this clarification addresses Mr. Hoberg's
concerns.
    Several commenters objected to the designated area approach because
it was too different from the construction standard's requirements for
residential roofs, and instead asked that OSHA synchronize the general
industry requirements with the construction standard for those roofs
(See, e.g., 124, 149, 150.). OSHA agrees in general, and the final rule
includes a new paragraph (final Sec.  1910.28(b)(1)(ii)) addressing
these concerns. Under this provision, employers may implement a fall
protection plan meeting the requirements of the construction standard
if they can demonstrate that it is not feasible or creates a greater
hazard to use guardrail, safety net, or personal fall protection
systems on a residential roof.
    In addition to establishing fall protection options for specific
workplace areas and situations, final paragraph (b) also establishes
the height that triggers the employer's obligation to provide fall
protection. The final rule, like the existing and proposed rules,
generally requires that employers provide fall protection when workers
work at levels that are four feet or more above a lower level. The
final rule, like the proposal, defines ``lower level'' as an area to
which a worker could fall (Sec.  1910.21(b)). The definition also
includes examples of lower levels, including ground levels, floors,
excavations, pits, tanks, materials, water, equipment, and similar
surfaces and structures, or portions thereof.
    Employers' duty to provide fall protection when workers can fall
four feet or more to a lower level is not new. As mentioned earlier,
the existing rule, which OSHA adopted in 1971, has a four-foot trigger
height (e.g., existing Sec.  1910.23(b)(1)(i), (b)(2), (b)(3), (c)(1),
(c)(2); Sec.  1910.268(g)). Pursuant to section 6(a) of the OSH Act,
OSHA adopted the 4-foot trigger from ANSI A12.1-1967, Safety
Requirements on Floor and Wall Openings, Railings and Toe Boards. As
far back as 1932, ANSI A12.1 prescribed a 4-foot trigger height. ANSI/
ASSE A1264.1-2007, Safety Requirements for Workplace Floor and Wall
Openings, Stairs and Railing Systems, also requires the use of fall
protection where there is an unprotected side or edge 4 feet or more
above a lower level (Ex. 13). Like ANSI A12.1, the ANSI/ASSE A1264.1
standard has specified the 4-foot fall protection height requirement
since its inception.
    Since OSHA adopted the general industry four-foot trigger, the
Agency consistently reinforced the requirement in numerous public
statements and Agency interpretations (e.g., letters to Mr. Paul
Osborne (May 13, 1980); \43\ Mr. Anil Desai (September 14, 1990); \44\
M.O. Brown, Jr. (October 22, 1992) \45\). Moreover, as far back as
1932, the ANSI A12.1 standard included the four-foot trigger. Thus,
OSHA believes the general industry four-foot trigger is a well-
recognized requirement.
---------------------------------------------------------------------------

    \43\ OSHA letter to Mr. Osborne available at: http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_id=18868.
    \44\ OSHA letter to Mr. Desai available at: https://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_id=20086.
    \45\ OSHA letter to Mr. Brown available at: https://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_id=20899.
---------------------------------------------------------------------------

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

    OSHA agrees with Mr. Wolner that it is feasible for employers to
provide workers with conventional fall protection systems in ``nearly
every work situation.'' However, OSHA does not agree with Mr. Wolner
that final paragraph (b)(1)(ii) is an overly broad exemption or
unprecedented. In enforcement action, employers always are permitted to