supported that approach (Ex. 129.1). Other stakeholders, including
Northrop Grumman--Newport News, stated that OSHA should not specify
locations or travel distances for sanitation facilities, such as
toilets:

    Toilets are already installed per local and state building and
plumbing codes. In the case of non-fixed facilities, such as ships
and modules, toilets are located as close to where employees are
working as feasible.* * * We recommend that OSHA maintain
performance based language relative to placement * * * of toilet[s]
(both sewered and portable) (Exs. 116.2; 120.1).

    After reviewing the record and considering the comments received,
OSHA believes that the performance-based approach will enable
employers, who are in the best position to assess the needs of their
particular worksites, to determine where to install sanitation
facilities so that they are readily accessible. Thus, OSHA decided not
to

specify a minimum time or distance to sanitation facilities.
    Paragraph (a)(2) clarifies OSHA's longstanding policy that
employers must supply and maintain sanitation facilities at the
worksite in a clean, sanitary, and serviceable condition. OSHA defines
``serviceable condition'' in Sec.  1915.80 as the state or ability of a
device to operate as prescribed by the manufacturer. Obviously, toilets
that do not flush, water faucets that do not turn on, and water
fountains that do not dispense a suitable stream for drinking are
examples of facilities that are not in a ``serviceable condition.'' The
current general industry standard specifies that employers must keep
all places of employment clean (Sec.  1910.141(a)(3)(i)). Paragraph
(a)(2) incorporates the existing general industry language that
lavatories must be maintained in a sanitary condition (Sec.
1910.141(d)(1)). Paragraph (a)(2) also adds the requirement for
employers to maintain sanitation facilities in a serviceable condition.
    Regarding how often sanitation facilities are serviced, the U.S.
Navy stated:

    The frequency of servicing and cleaning varies from daily to
weekly, based on the type of facility, number of employees serviced
and location and is addressed via contracts with janitorial services
and portable toilet vendors (Ex. 132.2).

Sound Testing, Inc., stated:

    It's a fact that the toilets in any institution, facility or
industry may become `unclean' or `un-sanitary' after one use! We
hope that OSHA doesn't intend to require the employers be
responsible for cleaning these toilets immediately after each use,
or each time they become not `clean' or not `sanitary'. It's more
practical and applicable to encourage the employers to maintain a
regular housekeeping schedule of some sort (Ex. 121.1).

    OSHA considered the above comments from the U.S. Navy and Sound
Testing, Inc., and revised the language in paragraph (a)(2) to require
that employers establish and implement a schedule for servicing,
cleaning, and supplying each facility to ensure that it is maintained
in a clean, sanitary, and serviceable condition. Sanitation facilities,
especially toilet facilities, will become unsanitary if cleanings are
spaced too far apart. Thus, employers need to ensure that they
establish cleaning schedules sufficient to provide employees with clean
and sanitary facilities. This requirement may mean adjusting schedules
to add cleaning if the sanitation facility receives an increased level
of usage. The Agency believes that a non-prescriptive approach that
permits each employer to determine the necessary cleaning schedule is
entirely appropriate, given that employers are in the best position to
know how often and to what degree their sanitation facilities are used
and, thus, how often they need to be cleaned, whether by in-house staff
or an outside janitorial service.
Paragraph (b)--Potable Water
    The current requirements found in the general industry standard at
Sec.  1910.141(b)(1) have been simplified and incorporated into subpart
F in paragraph (b), which requires that employers provide adequate
potable water from sanitary dispensers at all worksites. Paragraph
(b)(1) of this final rule requires that employers provide potable water
for all employee health and personal needs. In addition, the employer
must ensure that only potable water is used for these purposes.
Paragraph (b)(2) requires the employer to provide an adequate amount of
potable water for all employees' health and personal needs. Paragraph
(b)(3) requires that employers dispense drinking water from a fountain,
a covered container with single-use drinking cups stored in a sanitary
receptacle, or single-use bottles. Further, the employer must not
permit the use of shared drinking cups, dippers, or water bottles.
    Since the adoption of the general industry standard for potable
water, the use of single-use water bottles has become commonplace. OSHA
understands that some employers provide bottled water in single-use
size for employees who work in mobile crews or in areas where it is not
possible to install water fountains, such as on vessels and vessel
sections. Provided that bottles of water are not shared among
employees, OSHA believes this method of dispensing water is at least as
effective in preventing contamination as dispensing water from water
fountains or covered containers. The U.S. Navy supported the addition
of using single-use bottles:

    Single use drinking water bottles should be a recognized option.
Single use drinking water bottles are provided to supplement
permanent facilities on a case by case basis as needed (for example,
in remote locations during dry-docking evolutions during summer
months) (Ex. 132.2).

    OSHA believes that allowing employers to provide single bottles of
water gives them greater flexibility in complying with the potable
water requirement and, therefore, is carrying forward the language as
proposed.
    OSHA considered adding a provision to the final standard requiring
employers to ensure that drinking water is ``suitably cool,'' a
requirement from OSHA's field sanitation standard for agricultural work
(Sec.  1928.110(c)(1)(ii)). The preamble to that standard explained
that, in hot and humid conditions, the temperature of drinking water
needs to be low enough to encourage employees to drink and cool their
core body temperature (52 FR 16050, 16087, May 1, 1987). Some shipyard
employees also work in extremely hot and humid environments. Cool water
could help promote adequate hydration and reduce the risk of heat-
related illnesses. OSHA requested comment on this issue in the
proposal, and three stakeholders responded. Northrop Grumman
Shipbuilding--Newport News stated:

    Ensuring cool water is available and consumed by employees is an
important factor in preventing heat-related injuries. We utilize
plumbed drinking water fountains that provide cool water. For more
isolated work or jobs with a greater heat burden, we provide large
thermoses for ice and water from onsite commercial sized ice makers
and potable water sources. Employees use individual containers to
obtain water from these thermoses. Employees are also encouraged to
bring and consume personal drinks, such as water and sports drinks.
We hold an emergency contract for bottled water in the event of a
power outage (Exs. 116.2; 120.1).

    The U.S. Navy commented: ``The term `suitably cool' is too
subjective and should not be part of the requirement. Water is supplied
for fluids replenishment and is kept shaded or in thermal coolers to
prevent overheating prior to use'' (Ex. 132.2). NIOSH commented: ``It
would be useful to include in this rule the definition for `suitably
cool' '' (Ex. 129.1).
    While there is little doubt that water should be ``suitably cool''
for health and palatability reasons, OSHA believes that employers are
already providing cool water or have a means to keep water cool for
their employees working in hot or humid conditions. Therefore, OSHA is
not adding a specific requirement that drinking water be maintained
suitably cool. No other comments were received regarding paragraph (b).
Paragraph (c)--Non-Potable Water
    Paragraph (c) combines and simplifies the current general industry
provisions on non-potable water, found in Sec. Sec.  1910.141(b)(2)(i)
and (iii). OSHA condensed and incorporated these current provisions
into subpart F as Sec. Sec.  1915.88(c)(1) and (2). OSHA will not carry
forward Sec.  1910.141(b)(2)(ii), which addresses the construction of
non-potable water systems, since State and local codes currently
address this issue.
    Paragraph (c)(1) permits employers to use non-potable water for
purposes such

as firefighting and cleaning outdoor premises, so long as it does not
contain chemicals, fecal matter, coliform, or other substances at
levels that may create a hazard for employees. Sound Testing, Inc.,
commented:

    Non-potable water used for other purposes such as firefighting
and cleaning outdoor premises might be pumped up from rivers, lakes,
ponds, canals, bayous, bays, etc. * * * (Some city ordinances, USCG,
and state environmental laws do not permit this practice.) The water
from many of these sources most likely contains low doses of various
kinds of chemicals, drugs, hormones, heavy metals, organics, FOGs,
and possibly fecal matter and coliform from humans or animals.
Hence, the term non-potable water.
    The contaminants in these waters may vary by the minute. It
might be costly if the employers were not allowed to use these
waters in non-potable operations. It would definitely be more costly
and almost impossible for the employers to have to test for all of
the contaminants in the water prior to each use.
    Would you consider allowing the use of gloves, or appropriate
PPEs and the use of proper decontamination for those employees
affected? We believe it would be much more effective, feasible, and
realistic (Ex. 121.1).

    OSHA recognizes that contaminants may be found in water pumped from
rivers and lakes and that the use of PPE, in accordance with 29 CFR
1915 subpart I, Personal Protective Equipment, would be a good safety
and health practice that employers should adopt when working with non-
potable water. In fact, employees who are using non-potable water are
most likely already utilizing PPE. During firefighting activities, for
example, firefighting gear offers protection from both heat and
exposure to potentially hazardous substances in non-potable water used
to extinguish fires. However, while the use of PPE may protect the
employees using the non-potable water, there is no guarantee that other
affected employees will be protected as well. Should water particles
become airborne, such as during a fire response, or if there is residue
from contaminated water used to clean a surface where employees will be
working, the potential still exists for those employees to be exposed
to a hazardous substance present in the non-potable water. Therefore,
to protect all employees engaged in shipyard employment, OSHA is
carrying paragraph (c)(1) forward in this final standard as proposed.
    Paragraph (c)(2) requires that the employer clearly mark non-
potable water supplies and outlets as ``not safe for health or personal
use.'' The existing general industry standard that is applicable to
shipyard employment, Sec.  1910.141(b)(2)(i), requires that outlets for
non-potable water, such as water for industrial or firefighting
purposes, be posted or otherwise marked to clearly indicate that the
water is unsafe and is not to be used for drinking, cooking, or washing
the following items: people, clothes, food, cooking or eating utensils,
food preparation or processing premises, and personal service rooms.
This requirement is similar to some State and local laws that require
the labeling of non-potable water. No comments were received on this
paragraph. OSHA concluded that marking non-potable water supplies and
outlets as ``not safe for health or personal use'' is necessary to
protect workers from inadvertent ingestion of or exposure to
contaminants in non-potable water and is therefore carrying this
language forward as proposed.
Paragraph (d)--Toilets
    Paragraph (d) adopts the existing requirements on sewered toilets
found in the general industry standards, Sec.  1910.141(c)(1)(i) and
(ii), which are applicable to shipyard employment and which have been
reorganized for clarity in this paragraph (d). In addition, and as
proposed, OSHA included paragraph (d)(3), covering portable toilets,
which are not addressed in the general industry standard.
    Due to the addition of portable toilets in paragraph (d)(3), OSHA
proposed to replace the existing term ``toilet facility'' with the
terms ``sewered toilet facility'' and ``portable toilet facility.''
However, this final standard adopts the simpler terminology ``sewered
toilet'' and ``portable toilet.'' These terms are used in the current
ANSI Z4.1 and Z4.3 standards, respectively (Exs. 38 at Ex. 3-6, Sec.
2.4, and Ex. 3-7, Secs. 2 and 5). OSHA defines these terms in Sec.
1915.80 as follows: a ``sewered toilet'' is ``a fixture that is
connected to a sanitary sewer, septic tank, holding tank (for example,
bilge), or on-site sewage disposal treatment facility, and that is
flushed with water,'' while a ``portable toilet'' is ``a non-sewered
portable facility that may be either flushable or non-flushable.'' In
the final standard, toilet requirements are separated into four
paragraphs: (d)(1) includes the general requirements that will be
applicable to both sewered and portable toilets; (d)(2) includes the
requirements for the number of toilets; (d)(3) covers the requirements
for portable toilets; and (d)(4) includes an exception to provide
toilets at normally unattended worksites.
    Paragraph (d)(1)(i), which was proposed as (d)(1)(ii), requires the
employer to ensure that both sewered and portable toilets provide
privacy at all times. When a toilet facility contains more than one
toilet, each toilet shall occupy a separate compartment with a door and
either walls or partitions that are sufficiently high to ensure
privacy. Paragraph (d)(1)(ii) requires that the toilets be separate for
each sex, except as provided in (d)(1)(ii)(B). In paragraph
(d)(1)(ii)(A), the number of toilets provided for each sex is based on
the maximum number of employees of that sex present at the worksite at
any one time during a workshift. A single-occupancy toilet room is
counted as one toilet regardless of the number of toilets it contains.
Paragraph (d)(1)(ii)(B) specifies that an employer does not have to
provide separate toilets facilities for each sex if they will not be
occupied by more than one employee at a time, can be locked from the
inside, and contain at least one toilet. The requirements of paragraph
(d)(1) are noncontroversial and do not represent a departure from
current regulations in shipyard employment. They simply codify privacy
and convenience conditions that have become well established in the
workplace and contribute to employees' health and well-being.
Therefore, these requirements are being carried forward in this final
standard.
    The Agency is adding a provision to this paragraph that requires
the employer to establish and implement a schedule for maintaining
toilets in a clean, sanitary, and serviceable condition. This
requirement is included in paragraph (a)(2) but applies to all
sanitation facilities. For emphasis, OSHA repeated this requirement for
toilets in paragraph (d)(1)(iii). This provision requires each employer
to set up and carry out a cleaning schedule to meet employees' health
needs. Portable toilets that are not properly serviced can become
unsanitary and foul, thereby exposing employees to contaminants or
causing them to avoid using the facilities. OSHA believes this
requirement will not impose an unreasonable burden on employers who are
already cleaning toilets on a regular basis. Furthermore, it reinforces
the employer's duty to maintain sanitary conditions for employees who
must use the workplace toilet facilities.
    Paragraph (d)(2) specifies, in Table F-2, the minimum number of
toilets for each sex and allows for urinals to reduce the number of
required toilets in men's facilities. Proposed paragraph (d)(2)
retained the existing requirements of the general industry standard for
the minimum number of sewered toilets employers must provide for each
sex (see Table J-1 of Sec.  1910.141). This provision raises two
issues: first, the ratio of 1 toilet for every 15 employees;

and second, the proposed ratio being for sewered toilets only.
    Regarding the first issue, the proposed provision required a basic
ratio of 1:15 sewered toilets to employees. While the ratio slightly
decreases with the number of employees at the worksite (see Table F-2
of paragraph (d)(2)), the basic requirement is commonly referred to as
a ratio of 1 toilet for every 15 employees, and OSHA will use that
convention. OSHA adopted the 1:15 ratio (Table J-1 of Sec.  1910.141)
from the 1968 ANSI Z4.1 standard through notice-and-comment rulemaking
in 1973 (38 FR 10930, 10931 May 3, 1973). It has been the general
industry standard since that time. In contrast, ANSI has revised the
ratio to one toilet for every nine employees (ANSI Z4.1-1995).
    In the proposal, OSHA requested comment on whether the Agency
should retain the 1:15 toilet ratio from the existing standard, or
adopt the 1:9 ratio from the current ANSI Z4.1 and IPC 2003 standards.
The U.S. Navy stated that:

    In general, facilities (including industrial and support areas
to which the standard applies * * * ) are designed to meet or exceed
the current version of the international plumbing code (IPC) and are
upgraded accordingly during normal renovation cycles (Ex. 132.2).

The American Shipbuilding Association argued that OSHA should reference
State or local codes:

    State or local building or plumbing codes should be utilized
instead of the [1:9 toilet-to-employee ratio] proposed. This
involves sewer and plumbing systems infrastructure. It is not just a
matter of buying more toilets (Ex. 168, p. 236).

    Other employers supported OSHA's current ratio. For example, Todd
Pacific Shipyard testified that they believed the ratio of 1:15 was
sufficient (Ex. 198, p. 31). Northrop Grumman-Newport News stated:

    Our review of this issue indicates that the existing number of
toilets in 29 CFR 1910.141 and proposed Table [F-2] to Subpart F is
adequate to meet employee needs. * * * Adopting the ANSI Z4.1 ratio
would result in a 25 percent increase in toilets. This could pose
significant costs in infrastructure, space utilization, and
maintenance costs (Exs. 116.2; 120.1).

    OSHA recognizes that State and local plumbing codes may differ from
OSHA requirements. If those codes are more stringent than OSHA's
regulations, employers may have a duty to comply with the more
stringent requirements. However, where State or local codes are silent
on the issue of toilet ratios, or where these codes are less stringent
than OSHA's 1:15 ratio, employers must comply with OSHA's requirements.
OSHA concluded that Table F-2 in paragraph (d)(2) sets forth the
appropriate number of toilets for shipyard employment. These numbers
have been the standard for nearly four decades, and OSHA did not
receive any comments strongly disagreeing that the 1:15 ratio is
inadequate. Thus, employers will be required to follow Table F-2 in
subpart F to ensure that the minimum number of toilets is provided for
employees. In addition, a note has been added to Table F-2 that
clarifies that, when toilets will be used only by men, urinals may be
provided instead of toilets. However, the number of toilets may not be
reduced to less than two-thirds of the minimum specified. No comments
were received on this note to Table F-2.
    The second issue was that the proposal included only sewered
toilets in the minimum number of toilets. Many employers challenged the
Agency's proposal to limit the minimum number of required toilets to
only sewered toilets. Further, commenters provided examples of
situations in which the requirement for a fixed number of sewered
toilets would be infeasible or impracticable, including: (1)
Fluctuations in employee populations, making it difficult to plan for
an adequate number of sewered toilets (Exs. 119.1; 132.2; 168, p. 236;
198, p. 202); (2) remote locations, such as graving or dry docks,
piers, or other locations where it would be impracticable to run proper
piping to install sewered toilets (Exs. 105.2; 168, p. 153; 198, p.
23); (3) ship's sewage systems that may be unavailable to workers
because they are shut down for repair, use of the ship's sewage system
would result in the discharge of waste directly overboard in violation
of environmental laws, or employees are at a location on a vessel that
is far from a working sewered toilet (Exs. 99; 107; 104.1; 116.1;
120.1; 198, p. 23); and (4) fishing vessels that do not have sewage
holding tanks or adequate tank capacity for human waste, and that do
not have moorages with sewered facilities, thereby requiring the vessel
to discharge sewage directly over the side (Exs. 105.2; 199 p. 261).
    Nearly all employers that commented or testified advocated
flexibility for employers to provide portable toilets for employees
when the installation of sewered toilets is infeasible or
impracticable. General Dynamics commented:

    Sewered toilets can often not be placed in a position that is
considered readily available on board ships in the water. The long
standing practice is to provide portable toilets aboard ships. * * *
Furthermore, the use of portable toilets accommodates the movement
of employees within the shipyard (Ex. 119.1).

American Seafoods Corporation explained:

    For many small and medium vessels [meeting the minimum number of
sewered toilets] is impossible as many moorages do not offer sewer
connections, and the vessels do not have adequate tank capacity to
store sewage and waste water onboard (Ex. 199, p. 261).

American Seafoods further commented:

    The reason ships, ship yards, ship repair facilities and fishing
vessels use PORTABLE Toilet Facilities is that the ``Sewered
Facilities'' are either shut down for repair or shut down because
they are not permitted to be used due to environmental discharge
issues. Many smaller vessels do not have sewage holding tanks and do
not have the ability to connect to dockside sewer connections,
should any such connections exist. Therefore the only ``Sewered
Facilities'' available at what are often Municipal Docks are
frequently a considerable distance away from the vessel (they tend
to be built on shore). Portable toilets are used precisely because
we cannot use the plumbed systems on a vessel (Ex. 105.1).

    Todd Pacific Shipyard testified: ``There are some [portable
toilets] available out on the piers that are away from the main
facility where the majority of the toilets are'' (Ex. 198, p. 23).
    OSHA's standards for marine terminals, longshoring, construction,
and agricultural field sanitation all permit the use of portable toilet
facilities (Sec. Sec.  1917.127(a)(1)(iv); 1918.95(a)(1)(iv);
1926.51(c)(3); 1928.110(b); see also ANSI Z4.1 Sec. 2.9 and 6.4). In
addition, OSHA issued an interpretation letter on May 18, 1999,
indicating that the Agency would regard the substitution of portable
toilets for water closets as a de minimis departure from Sec.
1910.141(c)(1)(i) if the following circumstances were met: (1) The lack
of water or the temporary nature of the installation makes water
carriage systems impracticable; (2) the portable toilets are readily
accessible by employees; (3) the portable toilets have adequate
lighting, are secure, and have heating as necessary; and (4) they are
well-maintained and properly serviced (Ex. 23; OSHA letter of
interpretation to Michael G. Connors, May 18, 1999).
    Based on comments and testimony in this rulemaking, as well as OSHA
regulations and policy for other workplaces, the Agency amended
proposed paragraph (d)(2) by including both sewered and portable
toilets within the minimum requirements for toilets.

Sewered toilets that are already installed, such as in facilities and
shops, must be maintained as long as the worksite is still in
operation. It is not the purpose of this final rule to allow the
employer to provide only portable toilets. In addition, shipyard
employers should periodically reevaluate the number of employees using
sewered toilets to determine if the number of toilets needs to be
adjusted. For example, if employees on their way to a pier walk through
a shop that has sewered toilets and use those facilities, the employer
must accommodate any increased use of those toilets.
    Proposed paragraph (d)(3) permitted employers to provide portable
toilets in addition to the requirements for sewered toilets in Table F-
2. However, several employers objected to this language, arguing, as
discussed above, that there are times when it is not possible to
install sewered toilets. For example, American Seafoods Company
suggested, ``Perhaps this section should read [,] `In Lieu of the
required sewered toilet facilities' instead of `in addition to'?'' (Ex.
105.1). Based on the many comments and testimony on the issue of
portable toilets in shipyards, proposed paragraph (d)(3) has been
revised and reorganized into two subparagraphs. Paragraph (d)(3)(i)
requires that, any time the employer demonstrates that it is infeasible
to install sewered toilets, or when there is a temporary increase in
the number of employees for a short duration, the employer provide
portable toilets to meet the minimum number of required toilets listed
in paragraph (d)(2)(i) and table F-2 of this section. Such situations
might arise when work is being performed at piers, on ships, in dry
docks, or at remote work areas. Other circumstances might include when
employers have an influx of temporary employees, where temporary
employees are those employed for a limited time only, or whose
performance is contemplated for a particular piece of work, usually of
short duration. OSHA concluded that allowing the use of portable
toilets when an employer demonstrates that it is infeasible to install
sewered toilets in shipyard employment will enhance employee health and
well-being because these sanitation facilities will be more accessible
and, thus, more likely to be used. This option is particularly
important in work areas on vessels, where a significant portion of
shipyard employees work and where sewered facilities for workers may
not be practicable. Therefore, new paragraph (d)(3)(i) will be carried
forward in this final standard to require the employer to provide
portable toilets when the employer demonstrates that it is not feasible
to provide sewered toilets, or when there is a temporary increase in
the number of employees.
    This provision is further justified by the significant improvements
in portable toilet technology in recent years. Portable toilets now
contain the type of equipment necessary to provide for employee health
needs at levels close to that of the existing standard for sewered
toilets. For example, many portable toilets are now manufactured with
handwashing facilities that include hand towels, waste receptacles, and
either running water or waterless cleaning agents. In addition, some
portable facilities have flushable toilets (Ex. 13). Allowing employers
to provide portable toilets in certain situations will ensure adequate
and readily accessible facilities without adding construction expenses
and inconvenience.
    Paragraph (d)(3)(ii) has been modified from proposed (d)(3), and
requires that employers ensure that each portable toilet is vented and
equipped, as necessary, with lighting. In the proposal, OSHA specified
that portable toilets were required to be equipped with adequate
venting and, as necessary, lighting and heating. The American
Shipbuilding Association testified, ``When is it necessary to provide
heating and lighting in a portable toilet facility? I cannot recall
ever seeing such a facility that is equipped to provide either heating
or lighting'' (Exs. 104.1; 107.1). American Seafood Corporation also
objected to the venting and heating requirements for portable toilets:

    Adequate Venting?--We personally have never met a Portable
Toilet Facility that was ``Adequately Vented'' and there were years
of ``Portable Toilet Facility Experience'' in the rooms during the
discussions. Adequate Lighting?--Again, we have personally never
seen Portable Toilet Facilities that had extra lighting. Heating?--
Again we are at a loss. What supplier provides pristine portable
toilet facilities that have reading lights, vent fans, and
heaters?'' (Ex. 105.1).

While there are portable toilets that do have venting systems, heat,
air conditioning, and lighting, they are expensive. Fishing Vessel
Owners Marine Ways, Inc., testified:

    [T]he cost associated with portable toilets is a difference of
$85 per week for a toilet that is unheated and equipped with hand
sanitizer which includes regular inspections and servicing needs as
compared to greater than $2000 a week for portable facilities
equipped with heat and running water, plus additional costs for
servicing (Ex. 198, p. 202).

    OSHA will not impose these costs on employers or require that this
type of facility be used in the workplace. Based on the comments
received, OSHA revised this provision by eliminating the requirement
for employers to ensure that portable toilets are equipped with
heating. However, paragraph (d)(3)(ii) requires employers to provide
portable toilets that are vented and equipped, as necessary, with
lighting. Lighting would be necessary during workshifts occurring at
night, or in areas where there is not sufficient lighting. While the
standard does not require exhaust fans in portable toilets, some
venting is necessary (for example, ceiling louvers and stovepipe vents)
for employee comfort, health, and well-being.
Exception
    Proposed paragraphs (d)(4) and (e)(3) exempted employers from
providing toilet and handwashing facilities for mobile crews and for
employees working in normally unattended worksites, provided that these
employees have immediately available transportation to readily
accessible sanitation facilities that meet the requirements of this
section. Final paragraph (d)(4) retains the exemption for toilet
facilities. This exemption implicitly extends to handwashing facilities
in paragraph (e)(1), which requires employers to provide handwashing
facilities at each toilet facility. The availability of vehicles at a
worksite does not necessarily mean that the employees at that worksite
are a ``mobile crew.'' OSHA interprets the term ``mobile crew'' to be
limited to employees who continually or frequently move from jobsite to
jobsite on a daily or hourly basis, and to exclude employees who report
to a single worksite for days, weeks, or longer (Ex. 31; OSHA letter of
interpretation to Nicolas Mertz, June 7, 2002).
    For purposes of these exceptions, ``immediately available
transportation'' means that the vehicle is already at the specific
worksite or can be summoned quickly enough so employees are able to get
to facilities quickly. OSHA interprets ``nearby'' facilities as being
within ten minutes of the employee's work area (Ex. 31). Nearby toilets
must be in clean, sanitary, and serviceable condition, and adequate for
the number of employees who need to use them. Nearby handwashing
facilities must be equipped with waterless cleaning agents or soap,
water (for example, hot and cold, or lukewarm), and hand towels or air
blowers.
    The U.S. Navy supported this provision, stating, ``The proposed

exemptions are adequate'' (Ex. 132.2). No other comments were received.
OSHA has carried forward paragraph (d)(4) in the final standard.
Paragraph (e)--Handwashing Facilities
    Paragraph (e)(1) requires that handwashing facilities be located at
or adjacent to each toilet facility, sewered and portable toilets
alike. This provision is necessary, in major part, to ensure that
employees' health needs are met in those worksites where portable
toilets are or will be used. Some portable toilets are not equipped
with handwashing facilities, and separate or stand-alone facilities are
not always placed next to or close to portable toilets, particularly on
vessels and vessel sections. Often, employees must go to landside
facilities, which may be located a significant distance from the work
area, to clean their hands. As a result, employees may not be able to
clean their hands when they are exposed to contaminants, after using a
portable toilet, or before eating, drinking, or smoking, which puts
them at risk of adverse health effects.
    OSHA believes the use of performance-based language gives employers
compliance flexibility, even at worksites where there is a lack of
piped water or sewer lines. As stated previously, many portable toilets
manufactured today contain either handwashing facilities or waterless
cleaning agents. In addition, portable, stand-alone hand-cleaning
facilities are readily available and can be placed adjacent to portable
toilets. A single stand-alone handwashing facility may be able to serve
several portable toilets that are placed in one location. The U.S. Navy
supported this provision: ``We agree that requiring provisions of
handwashing facilities at or adjacent to toilet facilities is
reasonable and appropriate'' (Ex. 132.2). No other comments were
received. OSHA has carried forward paragraph (e)(1) in this final
standard as proposed.
    Paragraph (e)(2)(i) requires employers to equip handwashing
facilities with (1) soap and either hot and cold or lukewarm running
water; or (2) waterless cleaning agents that can disinfect the skin or
neutralize contaminants. Most of OSHA's other sanitation standards
require that handwashing facilities have soap and running water
(Sec. Sec.  1910.141(d)(2)(ii) and (iii); 1910.142(f)(3);
1917.127(a)(1)(i) and (ii); 1918.95(a)(1)(i) and (ii); 1928.110(b)).
However, the Bloodborne Pathogens (BBP) standard permits the use of
alternatives (for example, antiseptic hand cleaners) in limited
circumstances (Sec. Sec.  1910.1030(d)(2)(iii) and (iv)).
    Unlike the BBP standard, paragraph (e)(2)(i) does not restrict the
use of waterless cleaning agents to situations in which the lack of
water or the temporary status of the installation makes running water
infeasible. Work covered by the BBP standard, which in some instances
can require sterile conditions, is quite different from shipyard
employment. OSHA does not believe the limitations in the BBP standard
are necessary for this standard. Nearly all sewered toilets have
handwashing facilities with running water, while waterless agents are
usually used in conjunction with portable toilets. Moreover, whatever
cleaning agents are used, the employer will be responsible for ensuring
that the agents are effective in disinfecting the skin or removing the
contaminants to which employees are exposed. In addition, the employer
should select waterless agents that will not result in absorption of
contaminants, sensitization of the skin, or other adverse health
effects.
    A number of shipyard operations are performed at worksites where it
may be difficult to provide running water and soap. Therefore, OSHA
believes there is a practical need to allow the use of waterless
cleaning and decontamination products in shipyards. Northrop Grumman--
Newport News supported this addition: ``Waterless cleaners are provided
whenever non-plumbed portable toilets are present. They have been
received favorably and we have noted no problems'' (Exs. 116.1; 120.1).
In addition, the U.S. Navy stated: ``The use of waterless cleaning
agents is a viable option, enabling the provision of handwashing
facilities at all toilet facilities. Some waterless hand cleaners are
in limited use in the shipyards, but data is not currently available on
employee's acceptance of this alternative'' (Ex. 132.1). OSHA concluded
that waterless cleaners have become widely accepted and used in
workplaces across many industries, and their antibacterial qualities
protect workers from health hazards when water and soap are not
available. Therefore, the Agency is carrying this provision forward as
proposed.
    Paragraph (e)(2)(ii), identical to the proposal, requires that if
the handwashing facility is equipped with soap and water, the employer
must provide clean, single-use hand towels. These towels must be stored
in a sanitary container, and the employer must provide a sanitary means
for disposing of them. Alternatively, the employer may supply clean
individual sections of continuous cloth toweling or an air blower. No
comments were received on this paragraph. Because the requirements of
this provision are noncontroversial, and are standard hygiene practice
in shipyards pursuant to compliance with the general industry standards
at Sec.  1910.141(d)(2)(iv), OSHA is carrying paragraph (e)(2)(ii)
forward with no changes.
    Proposed paragraph (e)(3), an exception to providing handwashing
facilities for mobile crews and at normally unattended work locations,
has been deleted from the final regulation. As noted above, paragraph
(d)(4) exempts employers from having to provide toilets for mobile
crews or at normally unattended worksites. Because handwashing
facilities must be provided at or adjacent to each toilet facility, any
exception to the requirement to provide toilets automatically extends
to handwashing facilities.
    Paragraph (e)(3) in the final rule requires employers to inform
each employee who is engaged in the application of paints or coatings,
or in other operations in which hazardous or toxic substances can be
ingested or absorbed, about the need for removing surface contaminants
from their skin by thoroughly washing their hands and face at the end
of the workshift and prior to eating, drinking, or smoking. This
provision was proposed as paragraph (e)(4), but since proposed (e)(3)
was omitted from the final rule, OSHA renumbered this paragraph as
(e)(3). No comments were received on this provision. Because shipyard
employment can require workers to handle various hazardous or toxic
substances, OSHA continues to believe that employees must be informed
of the need to wash their hands and faces after working with certain
surface contaminants so they can protect themselves from dermal
exposure or exposure through ingestion. Thus, OSHA is carrying forward
this requirement as proposed.
Paragraph (f)--Showers
    OSHA has set forth the requirements for showers in paragraph (f),
which is substantially identical to the general industry standard found
at 29 CFR 1910.141(d)(3). Paragraph (f)(1) specifies that when showers
are required by an OSHA standard, the employer must provide one shower
for each 10, or fraction of 10, employees of each sex who are required
to shower during the same workshift. Paragraph (f)(2) requires the
employer to ensure that each shower is equipped with soap, hot and cold
water, and clean towels for each

employee using the shower. No comments were received on either
provision. OSHA has concluded that the shower requirements are
necessary for employee safety and health and have been a requirement
for shipyards through the general industry standard. Carrying these
requirements forward in the final standard thus responds to the
shipyard employment industry's request to consolidate requirements for
general working conditions in shipyard employment into one subpart.
Paragraph (g)--Changing Rooms
    Paragraph (g) sets forth the requirements for changing rooms. When
an employer provides protective clothing to employees to prevent
exposure to hazardous or toxic substances, the employer must provide: A
changing room that offers privacy for each sex (paragraph (g)(1)), and
storage facilities for street clothes, as well as separate storage
facilities for protective clothes (paragraph (g)(2)). Paragraph (g)(1)
is a new requirement, but the provisions in (g)(2) are identical to the
general industry standard, Sec.  1910.141(e), which has applied to
shipyard employment. No comments were received on these provisions.
Therefore, OSHA concluded that the new provision for privacy for each
sex is necessary for workers' health and well-being, as well as
personal comfort and dignity. The rest of paragraph (g) addresses the
shipyard employment industry's preference to consolidate requirements
for general working conditions in shipyard employment into one subpart.
Thus, OSHA is carrying these provisions forward in this final standard.
Paragraph (h)--Eating, Drinking, and Break Areas
    Currently, there are five requirements that address eating,
drinking, and break areas (Sec. Sec.  1910.141(g), (g)(1), (g)(2), and
(g)(4), and Sec.  1915.97(c)). OSHA combined these requirements into a
single provision in subpart F, and simplified the provision to prohibit
food, beverages, and tobacco products from being consumed or stored in
any area where employees may be exposed to hazardous substances.
Proposed paragraph (h) prohibited food, beverages, and tobacco products
from being consumed or stored in any area where hazardous or toxic
substances may be present.
    Many commenters argued that prohibiting eating, drinking, or using
tobacco products whenever hazardous or toxic substances may be present
unreasonably increased the number of areas where employees would not be
able to eat, drink, or smoke (Exs. 105.2; 106.1; 112.1; 121; 101.1;
124; 126; 130.1; 125; 168, pp. 57-58, 245-247). OSHA responded to this
concern in two ways. First, the Agency revised the definition of
hazardous substances in the final rule to mean a substance that may
cause injury, illness, or disease, or otherwise harm an employee by
reason of being explosive, flammable, poisonous, corrosive, oxidizing,
irritating, or otherwise harmful. The proposed definition was much
broader, and raised concerns that eating or drinking would be
prohibited near generally innocuous, but potentially harmful,
substances such as common household cleaning products or copier
cartridges (Ex. 112.1). The narrower definition that was adopted in the
final rule substantially limits the universe of substances that would
trigger the restrictions of this paragraph.
    Second, OSHA deleted the proposed phrase ``where hazardous or toxic
substances may be present,'' and replaced it with ``where employees may
be exposed to hazardous or toxic substances.'' The change in wording
was in response to commenters pointing out that, even if a toxic
substance is present, it is not necessarily a hazard. For example,
American Seafoods Company commented: ``If an employee cannot smoke
anywhere `hazardous chemicals are present' does that mean employees
cannot smoke in the same room in which there is a sealed can of some
chemical?'' (Ex. 105.1). The Shipbuilders Council of America commented:

    The proposed language directs that food, beverages, tobacco and
etcetera may not be consumed or stored in areas where hazardous or
toxic materials may be present. SCA believes this is too general.
The nature of a shipyard is such that there is small potential that
every location within the grounds may contain small levels of
hazardous or toxic substances. * * * We believe OSHA should
acknowledge this and alter the language in the section, for
instance, that the employer shall ensure that food, beverages, and
tobacco products are not consumed or stored in any area where
hazardous or toxic substances exists in such a concentration that
they have the ability to harm employees (Ex. 168, pp. 69-70).

    Several other commenters agreed with adding language similar to
that suggested by SCA, including Bath Iron Works, Atlantic Marine
Florida, Atlantic Marine Alabama, American Shipbuilding Association,
and Manitowoc Marine Group (Exs. 106.1; 115.1; 117.1; 118.1; 125). It
is not OSHA's intent to prohibit employees from eating, drinking, or
smoking in areas where unopened cans or containers of hazardous
substances are present. However, employees should not be eating,
drinking, or smoking in areas where they could consume, inhale, or
otherwise ingest hazardous substances. The final provision requires
employers to ensure that employees do not eat, drink, or smoke, or
store food, beverages, or tobacco products in any area where employees
or these items may be exposed to a hazardous substance that is
airborne, on an eating surface, in a refrigerator or other food storage
container, spilled on the floor, or in another similar state or
condition.
Paragraph (i)--Waste Disposal
    Paragraph (i) addresses waste disposal, including the construction
of receptacles, the number of required receptacles, and employees
working around uncovered garbage. The current general industry
provisions that are applicable to shipyard employment, found in
Sec. Sec.  1910.141(a)(4), (a)(4)(i), and (g)(3), have been combined
and reorganized into the following final provisions. Paragraph (i)
requires that the employer provide waste receptacles that are corrosion
resistant, leak-proof, and easily cleaned or disposable (paragraph
(i)(1)(i)); fitted with a solid, tight-fitting cover (paragraph
(i)(1)(ii)); provided throughout the worksite in numbers, sizes, and
locations that promote their use (paragraph (i)(1)(iii)); and emptied
often enough to prevent overfilling, and in a manner that does not
create a hazard for employees, with waste receptacles for food emptied
at least daily unless the receptacles have not been used (paragraph
(i)(1)(iv)).
    Although there were no comments on the specific requirements for
waste receptacles, several commenters questioned who was responsible
for providing waste receptacles, including Lake Union Drydock Company,
Puget Sound Shipbuilders, Dakota Creek Industries, North Pacific
Fishing Vessel Owners Association, and iWorkWise (Exs. 101.1; 124; 126;
128; 130.1). Trident Seafoods questioned, ``Is the shipyard or
maintenance facility responsible for the ship's crew waste
receptacles?'' (Exs. 104.1; 107.1). Similarly, American Seafoods
Corporation asked, ``Is the shipyard responsible for garbage cans on
ships in their yard?'' (Ex. 105.1).
    OSHA's Multi-Employer Citation Policy directive (CPL 2-0.124),
which applies to shipyard employment, specifies that on multi-employer
worksites, more than one employer may be responsible and citable for
hazardous conditions that violate OSHA standards. The directive spells
out a two-step process for determining whether more than one is
responsible and citable. Step

one involves determining the role of each employer at a specific multi-
employer worksite and whether they fall into one of the categories (for
example, creating, exposing, correcting, or controlling employer) that
has obligations with respect to OSHA requirements. Step two is
determining whether employers' actions are sufficient to meet the
obligations of the applicable employer category.
    Multi-employer worksites engaged in shipyard employment can vary
widely in the categories of employers that may be present and the
factors that may affect the responsibilities of various employers (for
example, whether contract provisions establish control over specific
safety and health issues at the worksite). The directive includes
examples and scenarios of various common workplace situations to help
employers understand their responsibilities in a specific type of
multi-employer worksite. OSHA believes that these examples will provide
useful guidance for determining who is responsible for garbage cans on
vessels in specific situations and specific multi-employer worksites.
    Paragraph (i)(2) specifies that employees are not to work in the
immediate vicinity of uncovered garbage that could endanger their
safety and health. Sound Testing, Inc., commented:

    Please define the terms `uncovered garbage' or `garbage.' There
are many instances in Shipyard Employment when workers may be
working on, near, or in the vicinity of `uncovered garbage.' The
difficulty is in the differentiation of what may look like `garbage'
and what constitutes actual garbage (Ex. 121.1).

    OSHA does not believe that defining garbage is necessary. The
provision requires that when uncovered waste could endanger employee's
safety and health, they should not work in the vicinity of the waste.
If there is no substance in the receptacle that might endanger them,
they can work near the waste. OSHA is retaining this paragraph with no
changes from the proposal.
    Paragraph (i)(3), identical to the proposal, requires employers to
ensure that employees working beneath or on the outboard side of a
vessel are not contaminated by drainage or waste from overboard
discharges. This paragraph protects employees working in dry docks, or
on piers or decks, from overhead discharge. No comments were received
on this paragraph. The Agency believes that it is common practice in
shipyards not to discharge drainage and waste from above the worksite
onto employees working at the worksite below.
Paragraph (j)--Vermin Control
    OSHA proposed to revise the application of the existing general
industry requirement (Sec.  1910.141(a)(5)) on vermin control to make
the provision more appropriate to shipyard employment. The existing
requirement, Sec.  1910.141(a)(5), specifies that employers clean and
maintain the workplace in a manner that prevents the infestation of
vermin in ``enclosed workplaces.'' Paragraph (j)(1) extends this
application by requiring the employer to take those steps necessary to
control vermin throughout the shipyard. Thus, to comply with this
requirement, employers need to expand their vermin control efforts to
include outdoor worksites. ``Vermin'' is defined in Sec.  1915.80 as
``insects, birds, and other animals, such as rodents and feral cats,
that may create safety and health hazards for employees.'' Sound
Testing, Inc., questioned, ``Does this definition include animal
species regarded as pests or nuisances and especially to those
associated with the carrying of disease?'' (Ex. 121.1). While OSHA
recognizes that many types of animals may be found on shipyard
property, the concern is with animals that are safety and health
hazards. Evidence in the record shows that employees working at outdoor
worksites, as well as in enclosed spaces, need to be protected from the
hazards associated with exposure to vermin (Ex. 22). For example,
employees working near water are at risk of disease if mosquito
populations are not adequately controlled. In addition, birds and
rodents can transmit disease directly, as well as through their feces
(see http://www.hhs.gov and http://www.cdc.gov for information on
vermin-related diseases). Sound Testing, Inc., commented:

    Many of these `vermin' are often detected in Shipyard
Employment, some are even considered as `friends' to the employees!
To `implement and maintain an effective control program' as required
in this section would probably be very expensive, near impossible or
even illegal * * * [S]eagulls and eagles are `frequent fliers' at
fish processing plants, packing plants, canneries, and fish
processors * * * (Ex. 121.1).

    OSHA recognizes that it is not possible to prevent all vermin,
especially birds and insects, from entering outdoor worksites.
Therefore, the provision retains the existing requirement that
employers take only those steps that are ``reasonably practicable'' to
prevent vermin infestation.
    Paragraph (j)(2) retains unchanged the existing general industry
requirement applicable to shipyard employment (Sec.  1910.141(a)(5))
that employers implement and maintain an effective vermin-control
program when vermin are detected. OSHA believes that such programs are
necessary to protect workers from the health and safety hazards
associated with uncontrolled vermin. Including this general industry
requirement in the final standard responds to the shipyard employment
industry's request to consolidate requirements for general working
conditions in shipyard employment into one subpart.

Section 1915.89--Control of Hazardous Energy (Lockout/Tags-Plus).

    In Sec.  1915.89, OSHA establishes the requirements for the control
of hazardous energy during the servicing of machinery, equipment, and
systems in shipyard employment. OSHA proposed to incorporate the
general industry standard (Sec.  1910.147), with minor revisions, into
subpart F, since maritime employment is exempt from the general
industry standard (Sec.  1910.147(a)(1)(ii)(A)). In the preamble to the
subpart F proposal, OSHA discussed the need for a comprehensive
lockout/tagout rule in shipyards, why OSHA was proposing to adopt the
general industry approach, the requirements of the general industry
standard, and the differences between Sec.  1910.147 and proposed Sec.
1915.89. The preamble to the proposal also included an in-depth
discussion of the application of the lockout/tagout standard while
servicing commercial vessels (72 FR 72452, 72484, Dec. 20, 2007).
    The Agency received many comments regarding the adoption of Sec.
1910.147 for shipyard employment, most of which were not in favor of
adopting the general industry requirements verbatim. After considering
the many informative comments and testimony OSHA received during the
comment period, the Agency decided to develop a final rule that
includes the substance of the general industry lockout/tagout
provisions, while adding provisions that are more compatible with
protecting workers in shipyard employment. In addition, the
requirements in the final rule have been organized and set forth
differently than the general industry standard due to the unique
conditions in shipyard employment, both on land, and on vessels,
including fish-processing vessels.
    This final standard addresses the control of hazardous energy
through the use of locks and tags-plus applications, employee training,
written program and procedures, and program audits, as well as other
requirements. The provisions in

this final rule are based on the Agency's detailed review and analysis
of the entire rulemaking record, which included all pre-hearing and
post-hearing comments from the public, as well as testimony obtained at
the public hearings. The Agency believes the final approach developed
from this information and data resulted in regulations that are
compatible with providing optimal safety in shipyard employment.
    The following discussion covers the need for a comprehensive
lockout/tags-plus standard in shipyard employment. Further, the
discussion addresses why OSHA has adopted in this final rule a standard
that, while similar to the general industry standard, differs in ways
that protect workers in the unique environment of shipyard employment.
An in-depth discussion of commercial fishing vessels is included in the
scope and application section of this lockout/tags-plus standard (see
summary and explanation of Sec.  1915.89(a)).
The Need for a Comprehensive Lockout/Tags-Plus Standard in Shipyards
    OSHA believes that a comprehensive rule protecting shipyard
employees from hazardous energy during servicing, maintenance, and
repair operations is needed. In the proposal, OSHA listed the following
three reasons why shipyard employment needs a comprehensive lockout/
tagout program (72 FR 72452, 72484, Dec. 20, 2007):
    1. Potential hazardous energy exposures are present throughout
shipyard employment, on vessels and vessel sections, and in landside
facilities (Exs. 9; 11). Employees servicing ships' systems face
considerable risk of injury or death from the energization of those
systems because they are often large and complex, and frequently have
multiple power sources. That risk is compounded when ships' crews and
outside contractors also work onboard the vessel. According to 2002
data from the Bureau of Labor Statistics (BLS) annual survey of
occupational injuries and illnesses, 30.3 percent of the shipyard
injury and illness cases involving days away from work resulted from
contact with an object or equipment, and 1.8 percent of the cases
resulted from being caught in equipment (72 FR 72452, 72484, Dec. 20,
2007). BLS Census of Fatal Occupational Injuries data from 1993-2002
show that 10 shipyard fatalities (6.3% of shipyard work-related
fatalities) resulted from contact with electrical current, and 31
fatalities (19.5%) occurred because of contact with objects and
equipment (72 FR 72484-85).
    2. The general industry lockout/tagout standard specifically
exempts ``maritime employment'' from its scope (Sec.
1910.147(a)(1)(ii)(A)). In the preamble to the final general industry
standard, OSHA explained that shipyard employment was excluded because
of the unique conditions present in this industry; further, the means
to minimize injuries and fatalities to maritime workers required
additional analysis and consideration, which had not been undertaken
during the lockout/tagout rulemaking (54 FR 36644, 36657-58, Sept. 1,
1989). As a result, OSHA had insufficient information about hazardous
energy in shipyard employment to conclude that the general industry
approach would address those hazards effectively. OSHA said it would
continue to review information on hazardous energy in shipyard
employment, evaluate the need to initiate rulemaking, and determine
whether the general industry rule, or an appropriate modification of
that rule, would provide optimal protection for shipyard employees.
    3. The existing lockout/tagout provisions applicable to shipyard
employment (Sec. Sec.  1910.331-.335, 1915.162-.164, 1915.181) do not
provide comprehensive or adequate protection for shipyard employees.
The existing provisions in 29 CFR 1915 establish specific, but
isolated, practices for controlling hazardous energy, and no provisions
establish a comprehensive program for addressing those risks. For
example, none of the existing part 1915 provisions requires written
lockout/tagout procedures, employee training, verification of
deenergization or isolation, or periodic inspection.
    Commenters supported the reasoning in OSHA's discussion in the
preamble to the proposal regarding the need for a comprehensive
lockout/tagout standard. Several employers stated: ``We agree with OSHA
that comprehensive energy control procedures are important and support
OSHA in applying the `cornerstone' part of the rules to ship repair''
and that ``positively securing all energy sources before servicing
equipment and verifying that the energy control has been achieved is an
obvious way to save lives and prevent injury'' (Exs. 100.1; 101.1;
105.1; 123; 124; 126; 128; 130.1).
    Some commenters confirmed that shipyard employers, as well as
commercial vessels, are already utilizing a version of lockout, tagout,
or tags-plus in their facilities, and have done so for a number of
years. Manitowoc Marine Group testified that:

    [A]s far as the land base, we do follow the general industry
standard on lockout/tagout. * * * [For vessel and vessel sections]
we have tried to somewhat model the general industry to a point. We
will identify the energy sources as best we can with the crew (Ex.
168, pp. 109-111).

    Northrop Grumman-Newport News, Bath Iron Works, American Seafoods
Company, Foss Maritime, Trident Seafoods, and several other commenters
also confirmed that they use lockout, tagout, or tags-plus in some
fashion for both their landside facilities, and vessels and vessel
sections (Exs. 99; 100; 104.1; 105.1; 107.1; 116.1; 120.1). American
Seafoods Company stated: ``Many vessels have implemented some form of
lockout procedures even though maritime has been exempted by OSHA for
the past 18 years'' (Ex. 105.1). Arctic Storm Management Group
testified:

    All three vessels have lockout/tagout programs. All three of
them have been tailored to the vessels, because they're different
sizes in different places. I have worked with my engineering staff
and electricians to design the programs, but they are vessel
specific (Ex. 199, p. 90).

    OSHA believes that a comprehensive hazardous-energy control program
is essential for shipyard employment for the reasons listed above, and
as explained in the proposal (72 FR 72452, 72484-85, Dec. 20, 2007). As
discussed below, OSHA is adopting a lockout/tags-plus program, which is
a modified version of the general industry lockout/tagout program. The
shipyard employment lockout/tags-plus standard will establish uniform
minimum procedures that shipyard employers must follow in all shipyard
servicing operations to protect employees on land and on vessels and
vessel sections.
Why OSHA Developed a Modified Version of the General Industry Standard
    In the proposal, OSHA discussed how it determined to follow the
general industry lockout/tagout standard. The Agency listed the
following five reasons, with an in-depth discussion of each reason, in
the proposed rule (72 FR 72452, 72487, Dec. 20, 2007): (1) The general
industry standard has provided effective protection for affected
employees; (2) many shipyard employers have already implemented
lockout/tagout programs modeled on the general industry standard, and
have reported that these programs are effective in reducing the risk of
harm associated with servicing operations; (3) the comprehensive
energy-control procedures, that are the cornerstone of the general
industry standard, are particularly appropriate for addressing

the types of workplace conditions and hazardous energy present in
shipyard employment; (4) shipyard employment also includes landside
operations, which are similar to general industry worksites; and (5)
the requirements of the general industry standard would be effective in
controlling hazardous energy in complex shipyard work environments and
in servicing complex ship's systems because the standard has proven
effective under similar complex conditions in general industry sectors.
    Almost uniformly, the comments on the proposed hazardous-energy
standard disagreed with OSHA's justifications for adopting the general
industry standard for shipyard employment in Sec.  1915.89. As an
example of a recurring concern, Northrop Grumman-Newport News stated:
``The proposed standard is essentially identical to the existing
General Industry standard and does not adequately address the
uniqueness of Shipyard Employment'' (Exs. 116.1; 120.1). DeWitt Davis
stated:

    [Section 1910.147] works well when [t]here is one source of
energy and in an assembly line process. Assembly lines are rare in
shipyard construction. * * * [A] cookbook approach [cannot] be
applied to multi-hazardous-energy-source work space (Ex. 122).

    American Seafoods Company pointed out that, in contrast to general
industry operations, shipyard work changes with each new vessel that
needs repair work:

    The complexity in a shipyard does not just arise from the fact
that there are many complex systems but that in large part, the
equipment and systems in a facility completely leave and are
replaced with entirely new ones dozens to hundreds of times per year
(Ex. 105.1).

Moreover, as Northrop Grumman-Newport News discussed, systems on large
vessels are extremely complex and interrelated, may involve thousands
of workers, and may be relatively inaccessible:

    A significant number of energy-isolating devices or authorized
individuals are involved. Overhaul of a nuclear-powered aircraft
carrier typically involves 75,000 energy-isolating device(s) and
over 3,000 authorized employees on a daily basis. * * *
    The energy-isolating device(s) are relatively inaccessible. Many
isolating devices are located remotely from the area of actual work
or are in areas where access is restricted to certain groups of
employees.
    There is interdependence and interrelationship of the system
components. Navy vessels, and to a lesser extent other vessels, are
designed for survivability. As a result, they are designed and
constructed with redundancy in mind. Isolation of components must
take this redundancy into consideration, requiring an extensive
effort to understand, identify, and account for all sources of
energy (Exs. 116.2; 120.1).

Other commenters noted the complexity of vessels' energy systems and
the difficulty that workers, including contractors, have in making
sense of those systems:

    The employees or contractors who perform work on a particular
system are unlikely to have the capability of identifying all energy
sources, either initially based on engineering drawings and
schematics or physically on the ship.
    The employees who perform the work on a particular system are
unlikely to have the capability of coordinating the interface
between multiple jobs that have overlapping points of isolation (Ex.
105.1).

Difficulties in deciphering a vessel's energy system may stem from the
fact that schematics may be outdated:

    Inaccurate or no drawings or schematics--older ships,
particularly commercial or foreign, may no longer have ship's
drawings. Even newer ships may not have been constructed exactly as
indicated on the drawing or the engineering drawings may not have
been updated to reflect alterations.
    Failure to label components--a part of ship construction
includes labeling of the components. Components should be labeled
before they become live. In other cases, labels may be missing,
damaged, or worn (Ex. 105.1).

    At the Washington, DC, public hearing, Northrop Grumman-Newport
News gave a further explanation about the challenges of adopting the
Sec.  1910.147 general industry standard for shipyard employment:

    I think, number one, is the complexity on an aircraft carrier,
for example, you may have 75,000 devices that you are isolating at
any one time. You may have 3,000 people that are engaged in some way
of that lockout/tagout process, so I think sheer volume is one,
complexity is another. It is one thing to talk about lockout and
tagout of an engine lathe in a machine shop, and it is another to
talk about a complex tagout of an electrical system on a nuclear-
powered aircraft carrier. There is just no comparison in the breadth
and depth of those systems (Ex. 168, pp. 250-251).

    Manitowoc Marine Group gave examples of some of the complexities
that they encountered on older vessels it repairs:

    But some of these older vessels actually use belting systems
which will--you will have gates and a cargo hold that will dump the
product on the gate as it is moving, and this belt will eventually
sandwich into another belt, bring it up to the open deck of the
vessel, and into a chute which will unload. So you have got a lot of
complex equipment and motors and drives that [have] to be
identified. And there may be a situation where one energy source may
drive this motor, but you may have another energy source hooked to
it as well, because it has an additional system which drives it (Ex.
168, pp. 113-114).

    Commenters also confirmed that employers who were using the general
industry lockout/tagout standard were struggling in various ways.
American Seafoods Company stated:

    In response to recent accidents, many fishing industry vessels
have reexamined their lockout/tagout procedures and worked to
improve them. Some have used OSHA general industry regulation as a
framework. As a result, they have struggled with application of the
general industry rules to their equipment installations, and
application of those rules to the unique circumstances of work
aboard ships. Unfortunately, the general industry approach is not
one size fits all and has not worked well. The principles are
valuable, while the details of implementation have been difficult
(Ex. 105.1).

    iWorkWise explained how various fishing vessel owners were
attempting to apply Sec.  1910.147 to their vessels but were running
into difficulties:

    [On] some vessels it's with a few specific pieces of equipment,
and some vessels * * * the problem is throughout the whole vessel.
So people are doing the best they can with it, and trying to use
1910 and trying to make it fit, because it's really all anyone has
it for is a guideline. * * * They try to use 1910 until they get to
the point where, oh, it won't work here. Now what? And that happens
I think on every vessel in this industry (Ex. 199, p. 166).

Prowler LLC and Ocean Prowler LLC, as well as American Seafoods
Company, stated:

    We agree with OSHA that comprehensive energy control procedures
are important and support OSHA in applying the `cornerstone' part of
the rules to ship repair, however we believe that there is much in
the OSHA standard that is not `cornerstone' material. OSHA should
minimize the requirements that are not performance oriented energy
control procedures to allow employer's real flexibility in creating
effective lockout programs, as well as training programs, that
achieve full energy control (Exs. 100; 105.1).

    Several of the commercial vessel operators and owners at the
Seattle public hearing described their current hazardous-energy-control
procedures. Dave Fraser of FV Muir Milach stated:

    We have remote starts on the bridge for the engine that we use
to drive the hydraulics. So if the chief was going to work on that,
you know, service it, he'd come up, and he'd take a piece of, if
nothing else, duct tape, put it over the starter switch and write on
it, `Do not start. I'm working on the generator' (Ex. 199, p. 62).

    Supreme Alaska Seafoods described how its Sec.  1910.147 lockout/
tagout program is not meeting its needs:

    We have basically a full-blown lockout/tagout program [modeled
after Sec.  1910.147]

onboard the boat. * * * It doesn't take into consideration the
ship's systems. Some areas you can't access it. We have--electrical
is my biggest problem right now. I have panels that weren't designed
with that in mind. When this vessel was designed, it was considered
adequate enough to shut the breaker off and put a little tag or
something on it, and everybody was supposed to know better. It's no
longer acceptable. So it won't take a blockout device. * * * So
[Sec.  1910.147] doesn't meet our needs, all right? And the thing
is--the first thing someone says is, well, can you change it? Yeah,
we can change it. But there's so much of this throughout the boat *
* * to do it in one blanket-type process (Ex. 199, pp. 161-163).

    Amy Duz of iWork Wise testified: ``I don't know of any vessel
that's following 1910 a hundred percent, not even one. And the
reasons--the first reason is probably that they just can't physically
lock everything out, so it gets more complicated'' (Ex. 199, p. 166).
Icicle Seafoods, Inc., testified:

    At Icicle we have a lockout/tagout program on every vessel and
every land plant. I guess before you ask specifically, it's loosely
modeled after 1910. I wish I could say that we're actually a hundred
percent compliant, and every single time a situation arises we're
doing exactly what we need to do. That doesn't happen. We're not in
compliance with 1910, and we can't be (Ex. 199, p. 231).

    OSHA also received comments and testimony from shipyard employers
who had concerns over using the general industry lockout/tagout
standard as an industry-wide approach. Manitowoc Marine Group explained
that, on landside, it is using the Sec.  1910 lockout/tagout standard.
However, it commented that vessels present special circumstances:

    [J]ust with the different vessels that come in, ranging [from]
very, very old vessels--I mean, we are talking vessels that were
built in the `20s and `30s that are actually still operational--it
is a little more difficult, but we do try to use safe practices and
develop a procedure that will protect them from energy sources (Ex.
168, pp. 84-85).

    OSHA maintains that the shipyard industry needs a comprehensive
hazardous-energy control program, for landside facilities as well as
vessels and vessel sections. However, it is apparent from the comments
made by large and small employers that applying the general industry
lockout/tagout standard verbatim would present many challenges for this
industry. The comments and testimony, which the Agency carefully
reviewed and considered, convinced OSHA that a modified version of the
general industry standard is necessary to protect workers who confront
the unique conditions and complex situations of shipyard employment.
    OSHA is adopting lockout/tags-plus requirements for shipyard
employment due to the complexity of the worksite; the large number of
workers involved in the work force; the involvement of multiple
employers; and the vast array of machinery, equipment, and systems that
employees may be servicing. These requirements build on the general
industry lockout/tagout standard, but offer shipyard employers some
flexibility in choosing the best method to control hazardous energy,
given their special circumstances. The American Shipbuilding
Association (ASA) argued that due to the complexity of shipboard system
operations, the imposition of traditional general industry standards
would increase an employee's risk exposure (Ex. 168, pp. 194-195). OSHA
agrees with this and other similar comments, and revised the final rule
to address the industry's concerns while ensuring that shipyard
employees working under Sec.  1915.89 are protected at least as well as
their counterparts in general industry working under Sec.  1910.147.
    The change from lockout/tagout to lockout/tags-plus is one of
clarification. Currently, Sec.  1910.147 requires that, when an
employer uses a tagout system on an energy-isolating device that is
capable of being locked out, the tagout system must provide full
employee protection. That full-employee protection provision requires
that an additional safety measure be used in conjunction with all of
the tagout requirements: essentially, a tags-plus system requires an
additional safety measure. This final rule simplifies and clarifies
that requirement by changing the definition and more explicitly
specifying those particular requirements. In addition, when possible,
OSHA has revised the language in the provisions to clarify the
requirements, without changing the substantive requirements of
Sec. Sec.  1910.147 and 1910.269. For example, Sec.  1910.147(c)(3) has
two requirements written into one paragraph. Without changing the
substantive provisions, Sec.  1915.89(c)(6) separates those
requirements into two paragraphs, and adds additional clarifying
language. The Agency believes that the maritime industry will embrace
the clarified language in the provisions, and be better able to
understand and comply with the provisions in this section.
    Due to the number of regulatory text changes that OSHA made from
the proposed rule, this section of the preamble will explain the final
regulatory text language, rather than track subsequent changes from the
proposal, as is typically done in OSHA preamble discussions. OSHA will
explain how the changes came about, and provide explanations and
examples, when appropriate, for specific provisions. OSHA believes that
this approach will assist employers in understanding the requirements
in the final standard. In addition, this preamble references two tables
that list the specific provisions OSHA revised between the proposed and
final rules. Table 2 of this preamble (see below) is a side-by-side
listing of sections and headings in both the final standard and the
proposal. Table 3, found at Ex. 215, is a side-by-side table that
compares the final regulatory language to the language in the proposal
for the revised provisions. (The purpose of Table 3 is to assist the
regulated community in understanding the revisions made to these
provisions, and is not to be relied upon for regulatory language.)

      Table 2--Control of Hazardous Energy Side-by-Side Comparison
------------------------------------------------------------------------
         Final regulatory text               Proposed regulatory text
------------------------------------------------------------------------
(a) Scope and application..............  (a) Scope
    (1) Scope..........................     (1) Scope
    (2) Application....................     (2) Application
    (4) Exceptions.....................     (3) Purpose
(b) Lockout/tags-plus program..........  (b) General
(c) General requirements...............     (1) Energy control program
    (6) Full employee protection.......     (2) Lockout/tagout
    (7) Lockout/tags-plus coordination.     (3) Full employee protection
(d) Lockout/tags-plus written               (4) Energy control
 procedures.                                 procedures
(e) Procedures for shutdown and             (5) Protective materials/
 isolation.                                  hardware
(f) Procedures for applying lockout/        (6) Periodic inspection
 tags-plus systems.

(g) Procedures for verification of          (7) Training
 deenergization and isolation.
(h) Procedures for testing.............     (8) Energy isolation
(i) Procedures for removal of lockout/      (9) Employee notification
 tags-plus systems.
(j) Procedures for startup.............  (c) Application of control
(k) Procedures for group lockout/tags-      (1) Preparation
 plus.
    (1) Primary authorized employee....     (2) Shutdown
    (2) Authorized employees...........     (3) Isolation
(l) Procedures for multi-employer           (4) LLOTO application
 worksites.
    (2) Host employer responsibilities.     (5) Stored energy
    (3) Contract employer                   (6) Verification
     responsibilities.
(m) Procedures for shift or personnel    (d) Release from lockout/tagout
 changes.
(n) Lockout/tags-plus materials and         (1) Machine/equip./system
 hardware.
    (i) Durable........................     (2) Employees
    (ii) Standardized..................     (3) Lockout/tagout removal
    (iii) Substantial..................  (e) Additional requirements
    (iv) Identifiable..................     (1) Testing
(o) Information and training...........     (2) Outside personnel
    (1) Initial training...............     (3) Group lockout/tagout
    (2) General training content.......     (4) Shift change
    (3) Additional training
     requirements for affected
     employees.
    (4) Additional training
     requirements for authorized
     employees.
    (5) Additional training for lockout/
     tags-plus coordinator.
    (6) Employee retraining............
(p) Incident investigation.............
(q) Program audits.....................
(r) Recordkeeping......................
(s) Appendices.........................
------------------------------------------------------------------------

    Special provisions apply to repairs to Navy vessels. When the Navy
conducts repairs on its vessels, the Navy ship's force maintains
control of the vessels' machinery, equipment, and systems, and performs
the procedures for controlling hazardous energy. To a large extent, the
Navy's system is consistent with OSHA's final rule on lockout/tags-
plus. However, differences between the Navy's system and the final rule
required the agencies to work together to craft exceptions to the final
rule to accommodate the operational needs of the Navy regarding its
ships that are under repair.
    OSHA recognizes that Navy vessels and vessel systems undergoing
repair may have to become operational quickly for purposes of national
security. Furthermore, in its comments to the proposal (Ex. 132.2), the
Navy described how its energy-control system is applied to vessel
systems that are uniquely complex:

    The Navy vessels' expert based tags plus system under the
control of the ship Commanding Officer provides the Commanding
Officer ultimate control of what is happening aboard his/her ship in
accordance with U.S. Navy Regulations.* * * Our group Tags Plus
expert-based hazardous energy control program involves an
interaction of expert systems operators [the ship's force] and
shipyard maintenance personnel. Maintenance is used differently in
shipyards it should be changed to repair or remove it altogether
here!
    * * *
    The Navy has developed shipboard energy control process
requirements codified in formal Naval Instructions. These
instructions were specifically designed to provide for work safety
when dealing with energy control of complex systems which require
specialized system qualification, knowledge and experience as well
as multi-layered technical reviews to ensure proper isolation of
work areas is established. Work isolation is often directly linked
to maintaining combat system requirements and ship safety (fire
protection, list, trim, buoyancy, should be: hotel systems,
ventilation, lighting etc.) on combat ships with redundant systems.
This required the development of an energy control process that
utilizes system experts and trained work control professionals. * *
* Placing responsibility for adequate isolation and system
conditions in the hands of personnel performing work [shipyard
maintenance personnel] is unsafe when the equipment and systems are
so complicated that workers could not be reasonably expected to
correctly determine safe isolation or it's affect [sic] on critical
ship systems.

    Because of these factors, the Navy ship's force always maintains
control over vessels and vessel systems undergoing repair, and
exercises control of hazardous energy in these vessels and vessel
systems, even when private-sector contract employers provide the
workforce that performs the servicing operations. The Navy asserts that
its hazardous-energy control program provides employees, including
contractor employees, with a sufficient level of protection from
hazardous energy, while permitting it to retain control of the vessels
under repair should operational needs arise. For these reasons, OSHA
provided several exceptions to the provisions of its lockout/tags-plus
standard (see the notes to paragraphs (c)(4), (c)(6), (c)(7), (e), (f),
(h), (i), (j), (k)(2), and (l) of this section); the preamble below
discusses these exceptions more fully. OSHA believes that contractors
performing servicing operations onboard U.S. Navy-owned and -operated
vessels already are coordinating with the Navy ship's force during
these operations, as required by these notes. Thus, the notes codify
practices that already exist in situations when the Navy has control
over its vessels and the vessel's machinery, equipment, and systems
during servicing operations. These notes also apply to the servicing of
machinery, equipment, or systems that takes place during new
construction of naval vessels once the ship's force takes control of
those machines, equipment, or systems. While these exceptions to the
final lockout/tags-plus requirements accommodate the Navy's need to
exercise control over the machinery, equipment, and systems of its
vessels that are undergoing repair, OSHA nevertheless continues to
exercise authority over private-sector employers, under contract with
the Navy, performing repair work on Navy vessels. Those employers still
must protect their employees to the full extent required by

the remainder of the lockout/tags-plus rule. For example, paragraph (q)
addresses program audits. Even those employers who service vessels and
vessel systems that are under the control of Navy ships' force are
required to conduct audits. OSHA does not require or expect the
employer to audit the Navy's lockout/tags-plus system. However, during
the audit of its own participation in the Navy's program, the employer
may identify deficiencies in the implementation of the program or may
identify ways that a procedure could be improved. In those instances,
the employer should coordinate with the Navy to address such concerns.
    Finally, the exceptions in Sec.  1915.89 that apply to Navy vessels
do not amend the requirements of any other OSHA standard that regulates
the control of hazardous energy.
 Paragraph (a)--Scope and Application
Paragraph (a)(1)--Scope
    Paragraph (a)(1) specifies that the lockout/tags-plus section
covers the servicing of machinery, equipment, and systems when an
employee could be injured if the machinery, equipment, or system is
energized, is started up, or releases hazardous energy. The scope of
the final rule is the same as the proposed rule with minor
clarifications and streamlining to address stakeholder comments that
the language should be more self-explanatory and less confusing (Ex.
121.1).
    As mentioned in the discussion to Sec.  1915.80, OSHA made changes
to two terms in paragraph (a) of this section. First, to streamline
paragraph (a)(1), OSHA states that the lockout/tags-plus section covers
``servicing'' operations, instead of using the ``servicing and
maintenance'' terminology from the proposed rule. The definition of
``servicing'' includes the maintenance, as well as the construction,
installation, adjustment, inspection, modification, testing, repairing,
and servicing, of machines, equipment, or systems. (See definitions,
Sec.  1915.80(b)(26).) Thus, there is no need to pair the term
``maintenance'' with ``servicing.''
    Second, OSHA replaced ``release of stored energy'' with ``release
of hazardous energy,'' a term that covers all energy that could be
released, not just stored energy. In response to stakeholder comments
(Exs. 121.1; 199, p. 152), OSHA also added a definition of ``hazardous
energy'' to the final rule (see definitions, Sec.  1915.80(b)(8)). OSHA
defines ``hazardous energy'' as ``[a]ny energy source, including
mechanical (for example, power transmission apparatus, counterbalances,
springs, pressure, gravity), pneumatic, hydraulic, electrical,
chemical, and thermal (for example, high or low temperature) energies,
that could cause injury to employees.'' Forms of hazardous energy
include active, residual, and stored energy. This definition is
consistent with the one OSHA uses in general industry (CPL 02-00-147,
2/1/2001). As such, many shipyard employers will be familiar with the
definition because they have implemented the general industry lockout/
tagout standard in their landside facilities, and some have used a form
of the general industry standards on vessels (see preamble discussion
above). Adopting this definition both clarifies and emphasizes that
many servicing operations in shipyard employment involve multiple types
and sources of energy, and that the lockout/tags-plus section covers
all of those types and sources of energy when the energization or
startup of machinery, equipment, or systems, or the release of energy,
may occur. Requiring that all releases of hazardous energy be
controlled will provide more protection to workers than if they were
simply protected from the release of stored energy.
    Paragraph (a)(2)--Application
    After considering all the comments received in response to OSHA's
questions in the preamble to the proposed standard (72 FR 72452, 72498,
Dec. 20, 2007), and analyzing the record, the Agency determined that
the record supports changing the application of the lockout/tags-plus
section. The final standard is a complete standard for all shipyard
employment.
    Paragraph (a)(2) of the final rule applies the lockout/tags-plus
section to any servicing operation that is performed:
     In any landside facility that performs shipyard employment
work; and
     On any vessel or vessel section.

In addition, if such servicing is conducted on a vessel, the standard
applies to any employee on a vessel, including, but not limited to, the
ship's officers and crew, unless such application is preempted by the
regulations of another federal agency.
    The proposal would have required employers to control hazardous
energy by complying with the following provisions: Section 1915.89 when
servicing machinery, equipment, and systems on vessels and vessel
sections (proposed paragraph (a)(2)(i)); and Sec.  1910.147 for
``inherently general industry operations'' performed aboard vessels,
such as fish processing (proposed paragraph (a)(2)(iii)(C)) (72 FR
72452, 72489-93, Dec. 20, 2007).
    OSHA received many concerns from stakeholders describing the unique
situations in shipyard employment in which the application of different
standards for controlling hazardous energy in shipyard work would be
impracticable (Exs. 100.1; 101.1; 124; 126; 128; 130.1; 168, pp. 368-
369; 199, pp. 149-150). Some stakeholders (Prowler LLC and Ocean
Prowler LLC; American Seafoods Company; and the U.S. Navy) said OSHA
should apply the general industry lockout/tagout standard (Sec.
1910.147) to landside facilities (Exs. 100.1; 105.1; 132.2). Other
commenters referred to the 2004 National Shipbuilding Research Program
(NSRP) report, ``Review of Current and Best Practices for Hazardous
Energy Control (Tagout) in Shipyards,'' which stated that shipyards
have, in most cases, adopted Sec.  1910.147 for land-based operations
(Ex. 105.2). For example, American Seafoods Company, citing the NSRP
report, commented that land-based servicing operations at shipyards
were conducive to the general industry standard because, compared to
shipboard servicing jobs, land-based jobs are usually of shorter
duration and involve a single authorized employee, have means of
isolation that generally can be readily identified, and have employees
who perform servicing are capable of identifying the energy sources and
applying energy-control devices (Ex. 105.1). In addition, a number of
stakeholders said they have implemented the general industry standard
in their landside operations (Exs. 116.2; 120.1; 132.2).
    In contrast to the commenters mentioned above, Northrop Grumman--
Newport News expressed a preference for one hazardous-energy control
standard that applies to all servicing operations, on landside and on
vessels and vessel sections (Ex. 168, pp. 263-264). Northrop Grumman
stated that it favored a single hazardous-energy control standard in
part because its employees work both aboard vessels and in landside
shops:

    [Employees] do go onboard and often the workload shifts, we will
bring work into the shops and we will work in the shops, and we will
take it back [on the vessel] and reinstall it, so there is some
movement back and forth between shop and ship (Ex. 168, pp. 221-
222).

    Northrop Grumman also said that having a single hazardous-energy
control standard for landside and vessel-servicing operations would
make it easier for the company to move employees between Northrop

Grumman's shipyards without having to retrain them (Ex. 168, pp. 222).
    The International Association of Drilling Contractors (IADC) noted
that problems could arise when a vessel in active operation is
undergoing repairs by both the ship's crew and shipyard workers because
the two groups could potentially be working under different standards
for controlling hazardous energy:

    It is IADC's view that the lockout/tagout program on a vessel
should generally be administered by the vessel's owner (represented
by the ship's Chief Engineer)--this is particularly the case on a
vessel that remains in active operation while undergoing repairs or
when repairs are being undertaken concurrently by ship's crew and
`shipyard workers.'* * * The shipyard lockout/tagout program must be
subordinate to that of the ship's lockout/tagout program when the
ship remains in service (Ex. 103.1).

    Amy Duz of iWorkWise testified about the value of having shipyard
employees and a ship's crew using one standard for controlling
hazardous energy:

    The proposed two-standard approach creates more questions and
problems than it attempts to solve. One hazardous energy control
standard should be applied to the fishing industry * * * [T]hese
vessels will be in shipyards and ships and shipyard personnel need
to interface. This interface will be more seamless, making people
safer if everyone is accustomed to using the same standard (Ex. 168,
p. 373).

    Based on its analysis of the record, OSHA believes that applying a
single lockout/tags-plus rule to all servicing operations, both
landside and on vessels and vessel sections, will ensure that employers
have a cohesive strategy to protect employees from hazardous energy. A
single standard responds to the comments of Northrop Grumman--Newport
News and the IADC. It will require shipyard workers to have knowledge
of only one hazardous-energy standard, whether the employees are
working on vessels or in a landside facility, and regardless of the
shipyard involved. In addition, it ensures that a ships' crew follow
the same rules as shipyard workers, thereby avoiding conflict or
confusion when repairs to a vessel's equipment are being conducted by
both groups. In sum, OSHA believes that having one standard will
facilitate employer implementation and maintenance of an effective
lockout/tags-plus program, and will ensure that employees understand
and follow the program.
    OSHA added language to paragraph (a)(2)(i)(A) to clarify that the
final lockout/tags-plus section only applies to servicing equipment at
landside facilities that ``perform shipyard employment work,'' that is,
those facilities that perform shipbuilding, ship repair, shipbreaking,
or other related employment. OSHA added this language to clarify the
limited scope of this regulation with regard to the two industry
sectors. First, the final lockout/tags-plus section, as in the proposed
rule, does not apply to servicing equipment at facilities that
manufacture components and parts used in shipyard employment when these
manufacturers do not perform shipyard employment work at these
facilities. These manufacturers are covered by the general industry
lockout/tagout standard. (See, also, summary and explanation of Sec.
1915.80, Scope, application, and definitions.) Second, the final rule
does not extend to landside fish-processing facilities. Fish processing
at landside factories is general industry manufacturing, not shipyard
employment. This position is consistent with OSHA policy that fish
processors on land must follow the general industry lockout/tagout
standard (see CPL 02-01-047, 2/22/2010); thus, the general industry
lockout/tagout standard continues to apply to servicing operations on
equipment at land-based fish-processing facilities.
    OSHA also deleted the exemption in proposed paragraph (a)(2)(ii)
for ``normal production operations,'' defined at Sec.  1915.80(b)(20)
as ``the use of machinery or equipment, including, but not limited to,
punch presses, bending presses, shears, lathes, keel press rollers, and
automated burning machines, to perform a shipyard-employment production
process.'' The proposal exempted servicing that takes place during
``normal production operations'' unless an employee would be required
to (a) remove or bypass a guard or other safety device, or (b) place
any part of his or her body into an area on a machine, piece of
equipment, or system where work is actually performed upon the material
being processed, or where an associated danger zone exists during an
operating cycle. OSHA believes that deleting the exemption for ``normal
production operations,'' including the exceptions to the exemption,
clarifies that the lockout/tags-plus standard for shipyard employment
applies to all servicing operations on any machine, equipment, or
system that is used in shipyard employment, whether at a landside
location, or on a vessel or vessel section. This application is
consistent with other subparts of Sec.  1915, which apply a single
standard for vessels and vessel sections, and on landside operations,
regardless of where the work is performed. (See 29 CFR part 1915,
subpart B, Confined and Enclosed Spaces and Other Dangerous Atmospheres
in Shipyard Employment; 29 CFR part 1915, subpart I, Personal
Protective Equipment; and 29 CFR part 1915, subpart P, Fire Protection
in Shipyard Employment.)
    Paragraph (a)(2)(i)(B) of the final rule specifies that the
lockout/tags-plus section applies to servicing of all machinery,
equipment, and systems on vessels and vessel sections. This application
includes servicing shipboard equipment that is used for processing
fish. Proposed Sec.  1915.89 would have applied to servicing ships'
systems (i.e., systems and equipment that are ``an inherent and
permanent part of the vessel'') (72 FR 72542, 72489, Dec. 20, 2007),
while Sec.  1910.147 would have applied to the servicing of
``inherently general industry equipment such as fish-processing
equipment'' (Id.). In the proposed rule, OSHA acknowledged that this
approach would not result in a completely uniform application of
standards onboard vessels. Nevertheless, OSHA preliminarily concluded
that the proposed approach was appropriate under the assumption that
equipment such as fish-processing equipment is not a core component of
vessels, and that activities involving such equipment are more closely
associated with general industry manufacturing operations than with
shipbuilding, ship repair, shipbreaking, and related employment. Id.
Further, the Agency opined that servicing such equipment aboard vessels
is performed by production employees, and not by employees who service
ships' systems. Id.
    Stakeholders uniformly opposed OSHA's proposed two-standard
approach (Exs. 100; 101.1; 104.1; 105.2; 107.1; 121.1; 123; 124; 126;
128; 130.1; 132.2; 168, pp. 194-195, 309-313), expressing their concern
that applying two different standards for controlling hazardous energy
on vessels would cause confusion (Exs. 130.1; 132.2). Icicle Seafoods
Inc., stated:

    The proposed standards approach to lock and tagout will be
confusing * * * Having to flip flop between two standards will only
breed indifference and non-compliance. Asking an engineer to first
determine what system he's working on before he's deciding how it
should be locked out is asking too much. This is like asking my
grandmother to follow one set of traffic laws on the weekend, and
drive by a completely different set of laws during the week (Ex.
199, pp. 213-214).

    Prowler LLC and Ocean Prowler LLC also agreed that the two-standard
approach would be confusing for

employees working on fish-processing vessels: ``It would mean that part
1910 standards would apply when [fish-processing employees] process
fish and operate the equipment for production, but proposed 1915.89
would apply when they clean up or perform maintenance work on that same
equipment'' (Ex. 100).
    iWorkwise also commented that OSHA's approach was confusing: ``This
approach can be summed up as follows: * * * 1915.89 applies to all the
people, but only to part of the equipment and only for some of the
time, but to all of the equipment for the rest of the time'' (Ex.
130.1). iWorkwise elaborated on this issue at the informal public
hearing:

    Two [lockout/tagout] standards will not make a single person
more safe. It will introduce confusion and burden that will very
likely make people less safe. Not a single vessel or fleet owner
that I am aware of support this two-standard approach. * * * The
two-standard approach begins by asking the impossible. * * * For
example, when a ship's hydraulic system powers both processing and
fishing equipment, where will one standard end and the other begin,
or if processing equipment, such as a grinder sump pump is critical
to keeping the ship afloat, is that ship's equipment or processing
equipment, or when panels provide power for engineering and
processing needs, what standard will be followed? (Ex. 168, pp. 368-
369).

Prowler LLC and Ocean Prowler LLC raised the same concerns, saying that
OSHA's proposed two-standard approach is confusing and arbitrary (Ex.
100). American Seafood Company agreed: ``Application of general
industry rules to one part of the ship, some of the time is folly. As
is switching between two different standards for the same maintenance
on the same equipment'' (Ex. 105.1).
    A number of stakeholders said the reasons OSHA provided in support
of the two-standard approach were based on faulty assumptions about
fish-processing operations. For example, several stakeholders said OSHA
was incorrect in saying that fish-processing equipment is not ``an
inherent and permanent part of the vessel,'' in the way that, for
instance, propulsion or navigation systems are (Ex. 168, pp. 369-370).
American Seafood Company commented:

    The ship's purpose is processing, therefore processing is an
essential ship function; the equipment is as essential to the ship's
purpose as a dredge is to a dredging ship. We find the division of
ship and ship's equipment on fish processing vessels by OSHA
arbitrary (Ex. 105.1).

    Stakeholders also said that OSHA's determination that most
employers replace the fish-processing equipment on vessels at the end
of each fishing season was inaccurate. At the informal public hearing,
OSHA heard testimony from iWorkwise, stating that only a ``minority of
vessels change out their processing equipment between seasons'' (Ex.
168, pp. 371-372). Although Trident Seafood Corporation said that their
vessels replace processing equipment each season, the company added
that they only replace some components, not the entire fish-processing
system (Ex. 199, pp. 172-173). Trident Seafood Corporation also stated
that the new equipment is plugged into the same electrical or hydraulic
power sources that power the rest of the vessel (Ex. 199, p. 173).
    Some stakeholders pointed out that OSHA was incorrect in stating
that employees who service fish-processing equipment on a vessel do not
service the ship's systems and vice versa (Exs. 104.1; 107.1; 168, p.
371; 199, pp.176-178). For example, Trident Seafoods Corporation
commented, ``Electricians, engineers and other technicians can and do
work in various areas throughout the vessel'' (Ex. 107.1). iWorkwise
concurred, saying:

    In the vast majority of cases, [maintenance of fish-processing
equipment] is done by the [ship's] engineer. It is a ship--the
person works on everything. On some vessels, they will have factory
technicians who will handle, for instance, a filet machine, but they
will also help out the ship's engineer and engineering when they are
not busy watching their machine (Ex. 168, p. 410).

Supreme Alaska Seafoods agreed:

    All personnel onboard ship are sailors first and foremost.
Regardless of department, rank, or time at sea, all personnel are
responsible for maintaining the ship. The term ship encompasses her
hull, all machinery and its cargo. Some sailors are more skilled
than others, but those of less skill will be used as helpers on the
same machinery or systems. Furthermore, personnel from different
departments will be called upon to work in other spaces on other
machinery, or transferred to other departments as the needs of the
ship dictate. This practice is not exclusive to the fishing
industry, but it is standard and common practice in the maritime
world (Ex. 199, pp. 148-149).

    FV Muir Milach said that interchanging jobs between servicing
ships' systems and fish-processing equipment is also prevalent on small
vessels: ``[E]verybody, including the engineer, is going to spend the
majority of their time on the fishing end of things'' (Ex. 199, p. 61).
FV Muir Milach added that interchanging jobs is particularly prevalent
when the vessel is at sea: ``Our fishing seasons are fairly lengthy and
discrete. * * * So from the vessel owner's perspective, the duties of
crew are as broad as their skills'' (Ex. 199, pp. 64-65).
    After considering stakeholder comments and testimony, as well as
analyzing the record as a whole, OSHA is convinced that having a single
standard for vessels will best protect employees from injury due to
energization, startup, or the release of hazardous energy anywhere on a
vessel. Accordingly, OSHA incorporated that change into paragraph
(a)(2)(i), and deleted proposed paragraph (a)(2)(iii)(C), which would
have excluded servicing fish-processing machinery, equipment, or
systems on vessels from the lockout/tags-plus section. Thus, Sec.
1915.89 will apply to servicing fish-processing equipment aboard
vessels. However, as noted above, the general industry lockout/tagout
standard (Sec.  1910.147) continues to apply to servicing operations at
landside fish-processing facilities, which is consistent with the
similarity of those plants to other general industry facilities,
current practice in the landside fish-processing industry, and OSHA
policy (CPL 02-01-047).
    Paragraph (a)(2)(ii) applies the final lockout/tags-plus section to
any employee, including ships' officers and crew, who services
equipment used during shipyard employment, unless the application of
the lockout/tags-plus standard is preempted by the regulations of
another federal agency. The proposed lockout/tagout section contained a
similar provision (proposed Sec.  1915.89(a)(2)(i)(A)).
    The language in paragraph (a)(2)(ii) clarifies longstanding OSHA
policy that part 1915 applies whenever a ship's crew performs ship-
repairing operations. OSHA included this issue in this rulemaking to
address concerns that some courts have raised about the scope and
coverage provisions in part 1915, subpart A, General Provisions.
Although Sec.  1910.15(a) specifies that part 1915 applies to ``every
employment and place of employment of every employee engaged in ship
repairing, shipbreaking, and shipbuilding, or related employment,''
some language in part 1915 suggests that the part does not cover
certain shipyard employment activities or employees. Specifically,
Sec.  1915.4(d) implies that part 1915 does not apply to some employees
who perform shipyard employment activities:

    The term employee means any person engaged in ship repairing,
shipbuilding, shipbreaking or related employments.* * * other than
the master, ship's officers, crew of the vessel, or any person
engaged by the master to repair any vessel under 18 net tons.

    Section 1915.4 was taken from the Longshore and Harbor Workers'
Compensation Act (LHWCA) (33 U.S.C. 901 et seq.), which, along with the
OSH Act, provides OSHA with rulemaking authority over shipyard
employment. Prior to enactment of the OSH Act, the Secretary of Labor,
pursuant to authority under the LHWCA, promulgated occupational safety
and health standards for shipbuilding to protect the life, health, and
safety of shipyard employees (33 CFR 941(a)).
    When Congress enacted the OSH Act in 1970, it authorized OSHA,
within the first two years after the effective date of the Act, to
promulgate as occupational safety and health standards any established
Federal standard without following normal rulemaking requirements (29
U.S.C. 655(a)). Pursuant to this authority, OSHA adopted all
established Federal workplace safety and health standards in effect as
of April 28, 1971, that pertained to employers, employees, and
employment covered by the OSH Act (29 CFR 1910.11(a); 36 FR 10466, May
29, 1971), including the safety and health standards enacted under the
LHWCA.
    OSH Act coverage, which extends to employers engaged in a business
affecting interstate commerce, is broader than LHWCA coverage. As such,
OSHA has consistently asserted that the Agency is not bound by the
coverage limitations in the LHWCA standards. To clarify this position,
OSHA issued an interpretive rule amending its incorporation of
established Federal standards (37 FR 26008, Dec. 7, 1972).
Specifically, OSHA added paragraph (b) to Sec.  1910.11 specifying that
the Agency was incorporating ``only substantive rules affecting safety
and health'' from established Federal standards. Id. ``The
incorporations by reference of Parts 1915, 1916, 1917, 1918 * * * are
not intended to include the discussion in those parts of the coverage
of the Longshoremen's and Harbor Workers' Compensation Act * * * ''
(Sec.  1910.11(b)). OSHA explained that when it adopted the LHWCA
safety and health rules, the Agency had ``no intention of incorporating
[into OSHA rules] * * * any other rules having special applicability
under the laws under which the `established Federal standards' were
initially adopted'' (37 FR 26008).
    OSHA has taken this position before the Occupational Safety and
Health Review Commission (OSHRC) and the Federal courts of appeal.
OSHRC accepted OSHA's approach as delineated in Sec.  1910.11(b) (Dravo
Corporation, 7 O.S.H. Cas. (BNA) 2089 (1980)), but this provision has
not been universally accepted. See Dravo Corp.v. OSHRC, 613 F.2d 1227
(3rd Cir. 1980).
    In Dravo, the court said that, notwithstanding Sec.  1910.11(b),
OSHA would be held to the plain-language meaning of its part 1915
standards, including the coverage standards carried over from the
LHWCA. Dravo, 613 F.2d at 1232-33. The language at issue in Dravo
concerned the location of covered shipyard employment activities, that
is, whether part 1915 covered shipbuilding activities performed at a
waterfront fabrication shop on an island in the Ohio River. The court
looked to the definitions of ``employer'' and ``employee'' in Sec.
1915.4, which indicate that the terms are limited to persons engaged in
shipyard employment ``on the navigable waters of the United States,
including dry docks, graving docks and marine railways'' (Sec.
1915.4(c) and (d)). The court said the plain meaning of the definitions
did not include fabrication shops (``they include only waters, docks,
and marine railways,'' Dravo, 613 F.2d at 1232), and declined to
construe the definitions more broadly.
    The Dravo court concluded that if OSHA intends a different coverage
scheme, the Agency must amend part 1915 through rulemaking. Id. Thus,
in accord with the Dravo court and to avoid confusion, OSHA proposed to
change the coverage of Sec.  1915.89 to apply to servicing performed by
any employee, including ships' officers and crew of the vessel
(proposed Sec.  1915.89(a)(2)(i)(A)). OSHA did not receive any comments
opposing this language. As OSHA said in the proposed rule, this change
should not come as a surprise to employers, since OSHA has consistently
applied part 1915 whenever a ship's crew performs shipyard employment
work (Ex. 81; see also CPL 02-01-047). OSHA believes that this
provision will reduce any confusion related to the split in the courts
and the language in Sec.  1915.4.
    To address a question posed by the International Association of
Drilling Contractors (Ex. 103.1), OSHA is clarifying that the final
lockout/tags-plus section also applies, in certain circumstances, to
seamen who perform servicing operations on vessels. CPL 02-01-047
outlines OSHA's authority over seamen. The Coast Guard exercises full
authority over the safety and health of seamen onboard inspected
vessels; therefore, with the exception of OSHA recordkeeping
requirements (29 CFR part 1904), OSHA may not enforce the OSH Act with
respect to the working conditions of seamen on those vessels.
    On commercial uninspected fishing industry vessels and other
uninspected vessels, however, OSHA has authority over the working
conditions of seamen that are not addressed by Coast Guard regulations.
Chao v. Mallard Bay Drilling, Inc., 534 U.S. 235 (2002). The Coast
Guard has not regulated the hazards addressed by Sec.  1915.89 on
uninspected vessels. Accordingly, the final lockout/tags-plus section
applies to seamen performing servicing operations on commercial
uninspected fishing-industry vessels and other uninspected vessels.
However, as paragraph (a)(2)(ii) states, the lockout/tags-plus standard
is not applicable if such application is preempted by the regulations
of another federal agency. Thus, the standard does not apply to the
working conditions of seamen aboard inspected vessels since the Coast
Guard regulates that area.
    Paragraph (a)(3) adopts the proposed requirement that when other
standards in part 1915, or applicable standards in part 1910, require
the use of a lock or tag, employers shall follow those requirements and
supplement them with the procedural and training requirements specified
by final Sec.  1915.89, Control of hazardous energy (lockout/tags-
plus).
    Part 1910 standards that currently contain lockout/tagout related
requirements that may apply, with some exceptions, to shipyards
include: Sec.  1910.178 Power Industrial Trucks; Sec.  1910.179
Overhead and Gantry Cranes; Sec.  1910.181 Derricks; Sec.  1910.213
Woodworking Machinery; Sec.  1910.217 Mechanical Power Presses; Sec.
1910.218 Forging Machines; Sec.  1910.252 Welding, Cutting and Brazing;
and Sec.  1910.305 Electrical. The part 1915 standards that contain
requirements for locks or tags include Sec.  1915.162 Ship's Boilers;
Sec.  1915.163 Ship's Piping Systems; Sec.  1915.164 Ship's Propulsion
Machinery; and Sec.  1915.181 Electrical circuits and distribution
boards. The regulatory language for the 1915 standards has been
modified to incorporate the requirements of this final rule, which
modifications have been carried over from the proposal with minor
changes for purposes of clarification and consistency. OSHA received no
comments on these proposed modifications. Therefore, the Agency is
retaining the proposed revisions, which it believes will bring
consistency to the lockout/tags-plus requirements across the various
sections of part 1915 and will afford employees increased protection
compared to the existing requirements.
    For example, an employee working on a ship's main engine, engaging
the electrically driven jacking gear,

currently would follow Sec.  1915.164 that requires that the circuit
controlling the jacking gear be deenergized by tripping the circuit
breaker, opening the switch, or removing the fuse, and then applying a
tag at the breaker, switch, or fuse panel. With this final rule, the
employer will now implement the additional requirements in Sec.
1915.89 to ensure that all employees are protected while servicing
machinery, equipment, or systems. Alternatively, an employee cleaning a
space that has electrical wiring or the fire-suppression system running
through it will not need to follow Sec.  1915.89 since the employee is
not servicing the wiring or fire-suppression system, but is merely
cleaning the space. However, other 29 CFR 1915 standards may apply, and
should be considered when working on machinery, equipment, or systems
on vessels and vessel sections.
Exceptions
    Paragraph (a)(4) lists exceptions from the final lockout/tags-plus
section for two types of operations: Work on electric equipment that is
connected with a cord and plug, and minor servicing activities
performed during normal production operations. OSHA did not receive any
opposition to these two exemptions, which were included in the
proposal. The exceptions for electric plug-in equipment and minor
servicing are the same as the proposal with only minor, non-substantive
editorial revisions.
    The exception in paragraph (a)(4)(i) refers to work on machinery,
equipment, or systems that are connected by a cord and plug. When
equipment is unplugged and under the exclusive control of the employee
performing the servicing, the risk of the equipment starting up or
hazardous energy being released no longer exists.
    In paragraph (a)(4)(ii), OSHA recognizes that some servicing
activities that occur during normal production operations, such as
making fine adjustments to equipment, must be performed with the power
on. This activity may include certain aspects of troubleshooting--for
example, checking to ensure that the source of a production problem has
been corrected. The final lockout/tags-plus rule exempts these
servicing activities during normal production operations, provided
these activities are routine, repetitive, and integral to the use of
the equipment. However, the employer is required to provide employees
with effective means of protection from the energization, startup, or
the release of hazardous energy when they perform these activities. If
employees are conducting other-than-minor servicing, they must follow
the lockout/tags-plus procedures.
Proposed Sec.  1915.89(a) Provisions Not in the Final Rule
    In addition to deleting proposed paragraph (a)(2)(iii)(C), which
would have removed fish-processing on vessels from Sec.  1915.89
coverage, OSHA deleted three other provisions in proposed paragraph
(a). All three provisions were taken from the general industry lockout/
tagout standard.
    OSHA did not include in the final rule the exception specified by
proposed paragraph (a)(2)(ii). This proposed provision exempted
``normal production operations'' from the lockout/tags-plus standard.
As explained in the summary and explanation of paragraph (a)(2)(i)(A),
not including the exception for ``normal production operations''
results in uniform application of the final standard across all
shipyard employment.
    OSHA also excluded from the final rule the proposed paragraph
(a)(2)(iii)(B) exception for hot-tap operations on transmission or
distribution systems for substances such as gas, steam, water, and
petroleum products. Bath Iron Works, Electric Boat Corporation, and the
American Shipbuilding Association said the exemption was not necessary
(Exs. 106.1; 108.2; 117.1). These stakeholders pointed out that Sec.
1915.14 requires marine chemist certification for workers performing
hot work on pipelines that contain or have contained flammable or
combustible materials. Moreover, these stakeholders noted that National
Fire Protection Association's 306 standard for the Control of Hazardous
Gas on Vessels states, ``Marine Chemists are not permitted to authorize
hot tapping except in emergency situations where a vessel is in peril''
(Exs. 106.1; 108.2; 117.1). OSHA agrees with the stakeholders that 29
CFR 1915, subpart B, fully covers hot-tap operations, and that
including language in the final rule about such operations is
unnecessary and may cause confusion.
    Proposed paragraph (a)(3)(i) was not included in the final rule to
simplify the lockout/tags-plus section. The Agency believes that this
provision, which described the purpose of the lockout/tags-plus
section, is unnecessary because paragraph (b) of the final lockout/
tags-plus section provides the same information.
Paragraph (b)--Lockout/Tags-Plus Program
    This final standard requires that the employer establish and
implement a written program and procedures to control hazardous energy
during the servicing of any machinery, equipment, or system. OSHA
separated the requirements into paragraphs (b)(1) through (b)(6). The
written energy-control procedures proposed in paragraph (b)(4) were
moved to paragraph (d), Lockout/tags-plus written procedures, in this
final standard.
    Although the energy-control program applies to all employees, it is
directed primarily at those workers who have the greatest exposure to
hazardous energy, which include authorized and affected employees. The
final standard defines ``authorized employees'' as those employees who
execute the lockout/tags-plus procedures, install the lock or tags-plus
system, or service any machine, equipment, or system under a lockout/
tags-plus application (final Sec.  1915.80(b)(3)). ``Affected
employees'' include employees who normally operate the machinery or
equipment on which service is being performed as well as those
employees whose job duties require them to work in the area where the
servicing is being performed (final Sec.  1915.80(b)(2)). The
definition also specifies that affected employees become authorized
employees when they perform servicing operations on the equipment under
a lockout/tags-plus application.
    Paragraphs (b)(1) through (b)(6) specify the components of the
employer's written lockout/tags-plus program: General procedures for
the use of lockout or tags-plus systems in accordance with paragraph
(c); procedures for protecting employees involved in servicing
operations in accordance with paragraphs (d)-(m); specification for
locks or tagout hardware in accordance with paragraph (n); employee
training procedures in accordance with paragraph (o); incident
investigations procedures in accordance with paragraph (p); and program
audit procedures in accordance with paragraph (q). These procedures are
more fully explained below.
    The employer's program is required to be written. OSHA concludes
that, because the requirements in the lockout/tags-plus standard are
comprehensive, the employer's program must be in writing to assist both
employers and employees in implementing the standard's many provisions,
and to give those groups ready access to all of the requirements. OSHA
believes this is standard industry practice, and that it is essential
for employee safety. No comments were received on the requirement that
the program be in writing. OSHA is

retaining this requirement in final paragraph (b).
Paragraph (c)--General Requirements
    Paragraph (c)(1), proposed as Sec.  1915.89(b)(2), requires that,
before any authorized employee performs servicing when energization or
startup, or the release of hazardous energy, may occur, all energy
sources be identified and isolated, and the machinery, equipment, or
system rendered inoperative. This requirement means that, prior to
servicing, each source of energy must have a lock or tags-plus system
applied to it. While this is a new paragraph in the final standard, it
is not a new concept in lockout/tags-plus. Failure to identify an
energy source prior to servicing could result in serious injury and
death. For example, in 1999, an employee installing a support cable was
electrocuted when he came into contact with the energized high-voltage
line that he was servicing (Ex. 69). A secondary switch that should
have been locked open to deenergize an electric panel had been left
closed. Procedures to isolate all hazardous-energy sources may have
prevented this accident (72 FR 72452, 72485, Dec. 20, 2007). No
comments were received disputing the fact that machinery, equipment, or
systems need a lock or tagout application before servicing.
    A primary tool for providing protection under the standard is the
energy-isolating device, which is the mechanism that prevents the
transmission or release of energy and to which locks or tags are
attached. The energy-isolating device guards against equipment startup
or reenergization of equipment during servicing. For purposes of this
final standard, there are two types of energy-isolating devices: Those
that are capable of being locked, and those that are not. How energy
must be controlled depends on whether the energy-isolating device can
accommodate a lock.
    The term ``capable of being locked out'' is being retained from the
proposal, and is defined at Sec.  1915.80(b)(4). An energy-isolating
device is considered ``capable of being locked out'' if it: Has a
locking mechanism built into it; has a hasp or other means of
attachment to which, or through which, a lock can be affixed (for
example, a lockable electric disconnect switch); or can be locked
without dismantling, rebuilding, or replacing the energy-isolating
device, or permanently altering its energy-control capability (such as
using a lock/chain assembly on a pipeline valve, a lockable valve
cover, circuit-breaker lockout, or fuse block-out devices).
    As discussed in the major issues section of this preamble, OSHA
recognizes that there are many important elements of any energy-control
program, and that the choice of lockout versus tagout is just one of
these elements. Further, OSHA also acknowledges that, in isolation, the
attachment of a lockout device to an energy-isolating device will
provide greater protection against reactivation than the attachment of
a tag. Thus, in final paragraph (c)(2), OSHA requires that when an
energy-isolating device is capable of being locked, a lock must be used
unless the employer can demonstrate that the use of a tags-plus system
will provide ``full employee protection'' equivalent to the protection
obtained by using a lock. This requirement was proposed as Sec.
1915.89(b)(2)(ii), and is being included in the final rule.
    During the public hearing for this rulemaking, Amy Duz of iWorkWise
stated: ``I have a general preference for locks, but I realize they
can't always be used'' (Ex. 199, p. 186). When asked whether he would
support locks for fishing vessels, Chris Kline of Icicle Seafoods,
Inc., responded: ``I would absolutely. It's the only real way to
[ensure safety when] you have individuals working around equipment''
(Ex. 199, p. 246). Asked the same question, Alan Davis of American
Seafoods Company stated: ``Yes. When I'm climbing into a piece of
equipment, I want to make sure my lock is on it, because it is a very
sure way of making sure that someone can't activate it without a
willful act of malice'' (Ex. 199, pp. 302-303). Allen Rainsberger of
Puget Sound Shipbuilder's Association agreed: ``Whenever it's capable
of being locked up, that's the preferred method, yes.'' After
considering these employers' comments, OSHA has concluded that applying
a lock will provide workers with the most efficient means of protection
and the highest degree of confidence in their personal safety.
    However, there are also data in the record on programs that
effectively use tags-plus systems. Northrop Grumman--Newport News and
Bath Iron Works stated that they believe their tags-plus systems are
``as effective'' as locks (Ex. 168, p. 340). While OSHA has
historically preferred locks over tags, the Agency will defer to
employers who use the latter, as long as they can demonstrate that
their tags-plus system offers full employee protection equivalent to
that provided by a lock.
    In evaluating whether to implement lockout or tags-plus systems,
the employer should use the following clarifications. First, as a
general rule, lockout must be implemented as part of the overall
energy-control program for machinery, equipment, or systems that are
``capable of being locked out.'' Machinery, equipment, or systems that
have a hasp or other attachment capable of accepting a lock, or that
incorporate a locking mechanism, are obviously considered to be