regulations), one might easily conclude that unless the stairs or
ladder are actually aboard a ship, they do not fit the regulation
(Ex. 254).

    Using the longstanding industrial term ``ship stairs'' does not
mean that this final rule applies to any industry sectors or workplaces
beyond general industry, or working conditions regulated by other
agencies. As mentioned in Sec.  1910.21, OSHA considers ``ship stairs''
to be a term of art for a type of stairway used when standard stairs
are not feasible. OSHA recognizes that, historically, vessels used ship
stairs to access different levels in restricted spaces. Today, however,
employers use these stairs in other situations, including general
industry workplaces. OSHA continues to use the term in the final rule
to refer to a particular stair design, and not to designate where
employers install or use them (see discussion of ship stairs in Sec.
1910.21(b)).
    Final paragraph (e)(1), like paragraph (d)(1) of the proposed rule,
requires that employers ensure ship stairs are installed at a slope of
50 to 70 degrees from the horizontal. As A1264.1-2007 indicates, this
slope range is standard

for ship stairs (see Figure 6.4 of A1264.1). OSHA did not receive any
comments on the proposed provision and adopts it as proposed.
    Final paragraph (e)(2), like paragraph (d)(2) of the proposed rule,
addresses risers on ship stairs. First, the provision requires that
employers ensure ship stairs have open risers. The final rule is
consistent with A1264.1-2007 (Section 6.13), which requires that ship,
spiral, and alternating tread-type stairs having a tread depth of less
than 9.5 inches must have open risers. The A1264.1-2007 standard
explains that open risers are necessary for stairs with narrow tread
depth, such as stairs used in restricted space (Sections E6.5 and
E6.13). An open riser gives workers additional space to ensure they are
able to maintain safe footing on treads that have a narrow tread depth
due to the limited space.
    Second, final paragraph (e)(2), like proposed paragraph (d)(3),
requires that employers ensure ship stairs have a vertical rise between
tread surfaces of at least 6.5 inches and not more than 12 inches. For
clarity, OSHA moved the proposed requirement to paragraph (e)(2)
because it also addresses stair risers. OSHA did not receive any
comments on the proposed ship stair requirements for open risers and
acceptable riser height and adopts the provision as proposed.
    Final paragraph (e)(3), like proposed paragraph (d)(3), requires
that employers ensure ship stairs have a minimum tread depth of 4
inches. Employers must apply final paragraph (e)(3) in combination with
paragraph (e)(2). Although the required 4-inch minimum tread depth for
ship stairs is less than the 9.5-inch minimum tread depth required for
standard stairs (final paragraph (c)(3)), nevertheless, OSHA believes
the tread depth is adequate to ensure that workers have a safe stepping
area because final paragraph (e)(2) requires that ship stairs have open
risers. As discussed, open risers give workers additional space to
maintain safe footing on ship stairs. Also, together the riser and
tread requirements in final paragraphs (e)(2) and (3), respectively,
set the necessary framework for employers to achieve the required 50-
to 70-degree angle range for ship stairs. OSHA did not receive any
comments on the proposed provision and adopts the provision as
discussed.
    Final paragraph (e)(4), like proposed paragraph (d)(3), requires
that employers ensure ship stairs have a minimum tread width of 18
inches. Although the required tread width for ship stairs is 4 inches
less than that specified in final paragraph (c)(4), OSHA believes this
width is adequate for stairs that employers may use only in certain
limited situations, such as in restricted spaces where it is not
feasible to use standard stairs. OSHA notes that the final rule makes
the tread-width requirement a stand-alone provision, which makes
paragraph (e)(4) consistent with the other tread-width provisions in
Sec.  1910.25. The Agency did not receive any comments on the proposed
tread width provision and adopted it as proposed.
Paragraph (f)--Alternating Tread-Type Stairs
    Final paragraph (f), like proposed paragraph (e), establishes
specific requirements for those situations in which employers may use
alternating tread-type stairs. The requirements in final paragraph (f)
apply in addition to the general requirements in final paragraph (b).
The Agency based the requirements on OSHA Instruction STD 01-01-011 and
three national consensus standards (A1264.1-2007, NFPA 101-2012, and
IBC-2012).
    Final paragraph (f)(1), like proposed paragraph (e)(1), requires
that employers ensure the series of treads installed in alternating
tread-type stairs have a slope of 50 and 70 degrees from the
horizontal. As A1264.1-2007 indicates, this slope range is standard for
alternating tread-type stairs (see Figure 6.4). Final (f)(1) also is
consistent with OSHA Instruction STD 01-01-011, which specifies that
alternating tread-type stairs must have a slope angle of 70 degrees or
less. OSHA did not receive any comments on the proposed requirement and
adopts the provision as proposed.
    Final paragraph (f)(2), like proposed paragraph (e)(2) and proposed
Sec.  1910.28(b)(11)(iii), specifies the required horizontal distance
between handrails. It requires that employers ensure the distance
between the handrails on alternating tread-type stairs is not less than
17 inches and not more than 24 inches.
    OSHA Instruction STD 01-01-011, which allows employers to use
alternating tread-type stairs, does not specify a minimum width between
handrails. The existing (Sec.  1910.24(d)), proposed (proposed
paragraph (b)(4)), and final rules (final paragraph (c)(4)) require
that employers ensure standards stairs have a minimum 22-inch tread
width between vertical barriers (i.e., handrails). Similarly, A1264.1-
2007 (Section 6.3) requires that all fixed stairs have a minimum
``clear width'' of 22 inches, which, in other words, means that the
distance between handrails must be at least 22 inches.
    OSHA believes the handrail distance requirement in the final rule
better effectuates the purposes of the OSH Act than A1264.1-2007.
First, alternating tread-type stairs can pose unique issues. OSHA
believes the 17- to 24-inch handrail distance is appropriate and
provides needed flexibility to address those issues. For example, as
A1264.1-2007 (Section E6.1.1) points out, some alternating tread-type
stairs are built so that workers need to descend facing away from the
stairs, which makes three-point contact ``a necessity.'' For those
stairs, OSHA believes that the distance between handrails may need to
be adjusted so workers are able to maintain critical three-point
contact while they are descending the stairs.
    Second, the final 17- to 24-inch handrail distance requirement is
established specifically for the alternating tread-type stairs. By
contrast, the 22-inch width requirement in A1264.1-2007 applies to all
fixed stairs and does not take into consideration the issues and
limitations involved with alternating tread-type stairs. Therefore,
OSHA believes the flexibility that final paragraph (f)(2) provides,
combined with its specific consideration of the issues involving
alternating tread-type stairs, ensures that the final rule will provide
appropriate protection.
    Finally, adopting a 17- to 24-inch handrail distance is consistent
with the NFPA 101-2012 requirement for alternating tread-type stairs
(Section <IP_ADDRESS>). Unlike A1264.1-2007, the NFPA 101 standard
establishes handrail width requirements specific to alternating tread-
type stairs and the unique issues and limitations those stairs involve.
OSHA is therefore following the NFPA 101-2012 standard in accordance
with section 6(b)(8) of the OSH Act (29 U.S.C. 655(b)(8)).
    OSHA notes that since 1986, OSHA Instruction STD 01-01-011 has
required that alternating tread-type stairs ``be equipped with a
handrail on each side'' to assist workers using the stairs. Final
paragraph (f)(2) (i.e., ``between handrails'') is consistent with that
instruction. OSHA did not receive any comments on proposed paragraph
(f)(2) and adopts as discussed.
    Final paragraphs (f)(3) and (f)(4) address tread depth for
alternating tread-type stairs. Final paragraph (f)(3), like proposed
paragraph (e)(3), requires that employers ensure alternating tread-type
stairs have a tread depth of at least 8.5 inches. However, if the tread
depth is less than 9.5 inches, final paragraph (f)(4), like proposed
paragraph (e)(4), requires that employers ensure alternating tread-type
stairs have open risers. The A1264.1-2007 standard

contains the same requirement (Section 6.13), explaining that open
risers are necessary on stairs with narrow treads (Section E6.13). OSHA
did not receive any comments on the proposed provisions, which the
final rule adopts with only minor editorial changes.
    Final paragraph (f)(5), like proposed paragraph (e)(5), requires
that employers ensure that each tread has a minimum width of 7 inches
measured at the leading edge (nosing) of the tread. The measurement is
taken at the leading edge of the tread because treads on many of these
types of stairs narrow at the back of the tread. This requirement is
based on a requirement in the IBC-2012 (Sec.  1009.13.2). OSHA did not
receive any comments on the proposed requirements and adopts the
provisions as proposed.
Section 1910.26--Dockboards
    Section 1910.26 of the final rule establishes requirements for the
design, performance, and use of dockboards. The final rule updates the
existing requirements for dockboards (existing Sec.  1910.30(a)).\29\
For example, the final rule deletes the existing requirement that the
design and construction of powered dockboards conform to the 1961
Department of Commerce (DOC) Industrial Lifts and Hinged Loading Ramps
Commercial Standard (CS202-56). ANSI/ITSDF B56.1 (2012) and other
recently updated national consensus standards supersede the DOC
standard. These standards include:
---------------------------------------------------------------------------

    \29\ The final rule also deletes the existing requirements for
forging machine areas and veneer machinery in existing Sec.
1910.30(b) and (c), respectively. OSHA believes these requirements
are not necessary because Sec.  1910.22(b) of the final rule, as
well as other general industry standards (e.g., 29 CFR part 1910,
subpart O (Machinery and Machine Guarding)) already address those
hazards. For example, subpart O includes standards on forging
machines (Sec.  1910.218).
---------------------------------------------------------------------------

     American National Standards Institute (ANSI)/Industrial
Truck Standards Development Foundation (ITSDF) B56.1-2012, Trucks, Low
and High Lift, Safety Standard (B56.1-2012) (Ex. 384);
     ASME/ANSI MH14.1-1987, Loading Dock Levelers and
Dockboards (MH14.1-1987) (Ex. 371);
     ANSI MH30.1-2007, National Standard for the Safety
Performance, and Testing of Dock Loading Devices (MH30.1-2007) (Ex.
372); and
     ANSI MH30.2-2005, Portable Dock Loading Devices:
Standards, Performance, and Testing (MH30.2-2005) (Ex. 20).
    Both the proposed and final rules adopted provisions that generally
are consistent with these national consensus standards. Final Sec.
1910.26 applies to all dockboards unless a provision states otherwise.
    The final rule (final Sec.  1910.12(b)) defines a dockboard as a
portable or fixed device used to span a gap or compensate for a
difference in height between a loading platform and a transport
vehicle. Dockboards may be powered or manual, and include, but are not
limited to, bridge plates, dock levelers, and dock plates.
    ``Loading platforms,'' as used in the definition of dockboards,
include loading docks, interior floors, driveways or other walking or
working surfaces. ``Transport vehicles,'' as used in the definition and
in the final rule, are cargo-carrying vehicles that workers may enter
or walk onto to load or unload cargo and materials. Transport vehicles
include, but are not limited to, trucks, trailers, semi-trailers and
rail cars. Employers primarily use transfer vehicles on dockboards in
order to move cargo and materials on and off transport vehicles.
``Transfer vehicles,'' which are mechanical powered or non-powered
devices to move a payload, include, but are not limited to, powered
industrial trucks, powered pallet movers, manual forklifts, hand carts,
hand trucks, and other types of material-handling equipment. Transfer
vehicles include all mechanical handling equipment that 29 CFR part
1910, subpart N, covers.
    These descriptions of transport vehicles and transfer vehicles are
consistent with the definitions of those terms in the MH30.1-2007 and
MH 30.2-2005 consensus standards. In proposed Sec.  1910.26(d), OSHA
used the term ``equipment'' to reference all types of transfer
vehicles. OSHA believes the term ``transport vehicle'' more accurately
describes the types of equipment OSHA intends to cover in final Sec.
1910.26.
    Paragraph (a) of the final rule, like proposed paragraph (a),
requires that employers ensure that the dockboards are capable of
supporting their maximum intended load. Section 1910.21(b) of the final
rule defines ``maximum intended load'' as the total load (weight and
force) of all workers, equipment, vehicles, tools, materials, and other
loads that the employer ``reasonably anticipates'' to be applied to a
walking-working surface at any one time. OSHA recognizes that not all
dockboards are equal, and some employers may have multiple dockboards
with different capacities. Some dockboards are made of lightweight
materials, such as aluminum, designed to support lighter loads such as
those that typically occur with manual material handling methods. Other
dockboards, such as those made of steel, are typically designed to
accommodate a heavier load, such as a laden powered industrial truck.
Additionally, portable dockboards may be carried on transport vehicles
for use at various loading platforms and subjected to a wide range of
anticipated loads.
    The final rule differs from existing Sec.  1910.30(a)(1) in that
the existing rule requires dockboards to be strong enough to carry the
load imposed on them. As OSHA explains in the discussion of final Sec.
1910.21(b), the term ``maximum intended load'' applies not only to
total loads currently applied to a walking-working surface, such as a
dockboard, but also to total loads that the employer has a reasonable
anticipation will be placed on the walking-working surface.
    The provision for loads in final Sec.  1910.22(b) requires that
employers ensure all walking-working surfaces are capable of supporting
the maximum intended load that will be applied to that surface. OSHA
believes it is important for clarity to include this performance-based
requirement in Sec.  1910.26. OSHA included the provision in final
Sec.  1910.26(a) to emphasize that the final rule revised the load
criteria in the existing rule from ``load imposed'' to ``maximum
intended load.'' Also, OSHA included the load requirement in this
section to emphasize that it applies to all dockboards that workers
use, regardless of whether the employer or some other entity owns or
provides the dockboard; whether the dockboard is portable, fixed,
powered, or manual; or whether the employer uses the dockboard as a
bridge to a transport vehicle. Finally, OSHA included the requirement
in this section to stress that, consistent with MH14.1-1987 (Section
2), the design and construction of all load-supporting parts of the
dockboard must ensure that the dockboard unit as a whole, when under
load, is capable of supporting the maximum intended load.
    The national consensus standards also provide guidance to help
employers comply with final paragraph (a). For example, MH14.1-1987 and
MH30.2-2005 identify factors and circumstances employers should
consider when ensuring their dockboards meet the load requirement in
final paragraph (a): ``In selecting dock leveling devices, it is
important [for employers/owners] to consider not only present
requirements but also future plans or adverse environments'' (MH14.1-
1987 (Section 3.1(j) and MH30.2-2005 (Section 6.2.9))).
    The MH14.1-1987 standard requires that load-supporting parts of
dockboards, including structural steels

and other materials, when under load, conform to American Society for
Testing and Materials (ASTM) standards, and that all welded connections
on dockboards comply with American Institute of Steel Construction
standards (Sections 2(a) and (b)). Similarly, the MH30.1-2007 standard
recommends that owners and employers never use dockboards outside the
manufacturer's rated capacity (Section 5.4.10). OSHA believes the
guidance these national consensus standards provide will help employers
ensure that dockboards are able to carry, and do not exceed, the
maximum intended load. OSHA did not receive any comments on the
proposed provision and adopts it with editorial revisions.
    Final paragraph (b)(1), like the proposed rule, requires employers
to ensure that dockboards put into initial service on or after the
effective date of the final rule, January 17, 2017, are designed,
constructed, and maintained to prevent transfer vehicles from running
off the dockboard edge. In other words, dockboards put into service for
the first time starting on the effective date of the final rule must
have run-off protection, guards, or curbs. A ``run-off guard,'' as
defined in the MH14.1-1987 standard, is ``a vertical projection running
parallel with the normal traffic flow at each side extremity of the
dockboard. Its intent is to avoid accidental side exit'' (Section 1.3;
see also MH30.1-2007 (Section 1.2.16) and MH30.2-2005 (Section 2.9))).
For example, run-off protection on many dockboards is simply a lip on
the side of the dockboard that is bent 90 degrees from the horizontal
portion of the dockboard. The existing rule does not include a similar
requirement.
    OSHA believes this provision is necessary to protect workers. A
transfer vehicle that runs off the side of a dockboard could kill or
injure employees working on or near it. For example, forklifts used to
load items onto a transport vehicle could seriously injure or kill the
operator and nearby workers if the forklift runs off the side of the
dockboard. In addition, workers using hand trucks to load and unload
materials from a truck could lose their balance and fall if there is no
run-off guard to prevent the hand truck from running off the side of
the dockboard.
    Final paragraph (b)(1) is a performance-based version of the run-
off protection requirements in national consensus standards. To
illustrate, the MH14.1-1987 standard specifies:

    Run-off guards shall be used for units that bridge an opening in
excess of 36 in. (910 mm) from the face of the dock. The minimum
run-off guard height shall be 2\3/4\ in (70 mm) above the plate
surface. Ends of run-off guards shall be contoured both horizontally
and vertically to permit a smooth transition to minimize damage to
the tires of handling equipment. (Section 3.2(a); see also Sections
3.4(c), 3.5, 3.6.)

    The MH30.1-2007 and MH30.2-2005 standards also contain similar
specifications (MH30.1-2007 (Sections 5.3.2, 5.3.3) and MH30.2-2005
(Section 6.1.4)) to prevent transfer equipment from accidentally
running off the side of the dockboard. OSHA will deem employers that
comply with the run-off protection specifications in MH14.1-1987,
MH30.1-2007, or MH30.2-2005 as being in compliance with final paragraph
(b)(1). OSHA also will consider employers that follow a different
approach, or use dockboards with run-off guards of a different height,
to be in compliance with the final rule, provided the run-off guards
they use are effective in preventing transfer vehicle from running off
the dockboard side.
    OSHA made several revisions to proposed paragraph (b) in the final
rule. First, final paragraph (b)(1) clarifies that this provision is
prospective only, that is, it only applies to dockboards put into
``initial service'' on or after the effective date of the final rule.
The final rule grandfathers existing dockboards (75 FR 29009-10),
meaning employers do not have to replace or retrofit dockboards
currently in use.
    Second, OSHA revised the compliance deadline for this provision.
The effective date specified by the proposed rule was 90 days after the
effective date of the final rule. After reviewing the record, OSHA does
not believe that the longer proposed compliance phase-in period is
necessary because the national consensus standards on which OSHA based
final paragraph (b) have been in place for many years. As such, OSHA
believes many dockboards currently in use, and virtually all dockboards
manufactured today, already have run-off guards. Therefore, OSHA does
not believe the compliance date in final paragraph (b) will impose an
undue burden on employers.
    Third, OSHA added an exception (final paragraph (b)(2)) in response
to a comment the Agency received on the proposed provision. The
American Trucking Associations, Inc., (ATA) (Ex. 187) said the proposed
rule was ``very broad'' and opposed the requirement that all dockboards
have run-off protection:

    To load or to unload, the driver of the commercial motor vehicle
backs up to the dock slowly and does not stop until contacting the
dock or the installed dock bumper blocks. In most cases, the gap
between the vehicle and the loading dock is no more than a few
inches. Either a dock leveler or portable dockboard is used to
reduce even this minimal amount of space. There is insufficient
space between the terminal and the truck to permit a powered
industrial truck loading or unloading freight to fall to the ground.
    OSHA's proposed requirement that portable dockboards and dock
plates be provided with edging and curbing is ill-conceived.
Moreover, there is no space between the side of the truck and the
edge of dock bay opening to allow for a forklift truck to run off of
the edge to cause death or injury to the employee.
    Further, this requirement actually would reduce safety for
employees in the trucking industry, as providing curbing on dock
plates would create a tripping hazard for employees walking on the
plates (Ex. 187).

    Accordingly, ATA recommended that OSHA revise paragraph (b) to
specify:

    [C]urbing on dockplates to prevent a vehicle from running off
the edge of a ramp or bridging device is not required where there is
insufficient space for a vehicle using the device to run off the
edge and drop to the ground. Any requirement for curbing on the
edges of ramps and bridging devices should be limited to those
working environments where a true fall-off hazard exists (Ex. 187).

    The Agency agrees with ATA that run-off protection is not necessary
when there is insufficient space for equipment to run off the side of
the dockboard. Accordingly, OSHA added an exception to final paragraph
(b)(1) specifying that employers do not have to use dockboards equipped
with run-off guards if there is no fall hazard to guard against. This
exception is consistent with MH14.1-1987, MH30.1-2007, and MH30.2-2005,
which only require run-off guards when the opening the dockboard
bridges exceeds 36 inches (MH14.1-1987 (Sections 3.2(a), 3.4(c), 3.5,
3.6) and MH30.2-2005 (Section 6.1.4)). Unlike the national consensus
standards, final paragraph (b)(1) does not specify what size of opening
on the dockboard constitutes a run-off hazard. In some circumstances,
an opening of less than 36 inches may pose a fall hazard. As such, OSHA
believes the most effective way to determine whether a hazard exists is
for employers to evaluate whether a particular opening poses a hazard,
including considering factors such as the type and size of transfer
vehicle the worker is using.
    Paragraph (c) of the final rule, like existing Sec.  1910.30(a) and
the proposed rule, requires employers to secure portable dockboards by
anchoring them in place or using equipment or devices to prevent the
dockboard from moving out of a safe position. The final rule also
specifies that, when the employer can demonstrate that it is not
feasible to

secure the dockboard, the employer must ensure that there is sufficient
contact between the dockboard and the surface to prevent the dockboard
from moving out of a safe position.
    OSHA believes this provision is necessary to protect workers from
injury or death. If the employer does not securely anchor the dockboard
or equip it with a device that prevents movement, it could slide or
drop off of the loading platform or transport vehicle, and the worker
could fall. Workers also could fall if the dockboard moves or slides
while they are on it. In addition, failure to secure a dockboard could
expose workers to crush or caught-in hazards if the dockboard moves,
and pins or strikes the worker, or causes the load the worker is moving
to shift or fall against the worker.
    Final paragraph (c) is consistent with B56.1-2012. That standard
also requires anchoring or equipping portable dockboards with devices
that prevent the dockboards from slipping (Section 4.13.2). B56.1-2012
does not include any requirements for employers to follow when
anchoring or equipping portable dockboards from slipping is not
feasible. It does require, like final paragraph (c), dockboards of all
types be designed and maintained so the ends have ``substantial
contact'' with the dock and transport vehicle to prevent the dockboard
from ``rocking or sliding'' (Section 4.13.5). Similarly, MH14.1-1987
(Section 3.7(b)), MH30.1-2007 (Section 5.1.7), and MH30.2-2005 (Section
6.2.2) require at least 4-inch overlap between the edge of a dockboard
and the edge of the supporting surface (e.g., dock, platform, trailer
track bed). OSHA did not incorporate a specific minimum overlap in the
final rule because it believes that what constitutes an adequate
overlap may involve a number of factors that employers need to
determine on a case-by-case basis. OSHA did not receive any comments on
proposed paragraph (c) and finalized the paragraph as discussed.
    Final paragraph (d), like the proposed rule, requires that
employers provide and use measures (e.g., wheel chocks, sand shoes) to
prevent transport vehicles from moving while dockboards are in place
and workers are using them. OSHA believes it is necessary to prevent
transport vehicles from moving in order to protect workers from falling
when they work on dockboards. If a transport vehicle moves when a
worker is on the dockboard, the sudden movement may cause the worker to
fall off the dockboard or the dockboard may be displaced and fall to
the ground along with the worker.
    The proposed and final rules expand the existing rule (Sec.
1910.30(a)(5)), which only requires that employers prevent ``rail
cars'' from moving when workers are using dockboards to load/unload
cargo. However, workers also are exposed to fall hazards when they use
dockboards to load/unload other types of transport vehicles. As a
result, OSHA expanded the existing rule to ensure that workers are
protected whenever they use dockboards, regardless of the type of
transport vehicle workers are loading/unloading.
    The final rule gives employers flexibility in selecting measures to
prevent the transport vehicle from moving. Employers must ensure
whatever measures they use are effective in preventing movement,
regardless of the type of transport vehicle the employer is loading/
unloading. For example, for wheel chocks, which are one of the most
frequently used measures to prevent transport vehicles from moving, the
size of the transport vehicle wheel determines the size of the wheel
chock that will be effective to prevent the vehicle from moving.
    OSHA received one comment on the proposed rule. ATA said the
requirement is both unnecessary and conflicts with section (4)(b)(1) of
the OSH Act (29 U.S.C. 653(b)(1)):

    FMCSA's [Federal Motor Carrier Safety Administration] brake
regulations address this condition and preclude OSHA's wheel
chocking requirements. Jurisdiction in this matter was asserted in a
2001 letter from then FMCSA Acting Deputy Administrator Julie
Cirillo to OSHA officials. The letter clearly asserts FMCSA's
exclusive jurisdiction over the immobilization of parked vehicles in
stating that FMCSA's parking brake regulations were ``written
specifically to protect truck drivers and anyone else who might be
injured by inadvertent movement of a parked commercial motor
vehicle.'' . . . We believe [FMCSA] brake regulations constitute an
`exercise of statutory authority' to prescribe or enforce standards
or regulations affecting occupational safety or health (Ex. 187).

    Department of Transportation (DOT) regulates interstate
transportation of ``commercial motor vehicles'' (CMV) traveling on
public roads, thus, pursuant to section 4(b)(1) of the OSH Act, OSHA is
preempted. DOT regulations define a CMV, in part, as a self-propelled
or towed vehicle used on the highways in interstate commerce, if the
vehicle:
     Has a gross vehicle weight rating or gross vehicle weight
of at least 10,001 pounds, whichever is greater; or
     Is used in transporting materials found by the Secretary
of Transportation to be hazardous as defined by DOT regulations and
transported in a quantity requiring placarding under DOT regulations
(49 U.S.C. 31132).
    DOT regulations do not apply to transport vehicles that do not meet
the definition of CMV, do not operate in interstate transportation, or
are not used on public roads. OSHA continues to have authority over:
     Transport vehicles that do not meet the definition of CMV;
and
     CMVs not operated in interstate commerce, which includes
CMVs that transport materials on private roads or within a work
establishment.
    OSHA has the authority to enforce chocking requirements in these
situations, which the Agency outlined in two letters of interpretation
(Letter to Mr. Turner, November 8, 2005 \30\ and letter to Mr. Cole,
March 7, 2011 \31\). Thus, to the extent that FMCSA covers the specific
vehicle, final paragraph (d) does not apply. That said, OSHA believes
final paragraph (d) is necessary because not all transport vehicles are
CMVs or used on public roads. Employers use transport vehicles to move
material and equipment within their facilities. In addition, most
transport vehicles are loaded and unloaded off public roads. Therefore,
OSHA adopted proposed paragraph (d) with editorial revisions.
---------------------------------------------------------------------------

    \30\ OSHA letter to Mr. Turner available at: http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_id=25161.
    \31\ OSHA letter to Mr. Cole available at: http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_id=28121.
---------------------------------------------------------------------------

    Final paragraph (e), like existing Sec.  1910.30(a)(4) and the
proposed rule, requires that employers equip portable dockboards with
handholds or other means that permit workers to safely handle the
dockboard. Handholds and other means of gripping are necessary so
workers are able to move and place dockboards without injuring
themselves or others. If workers cannot handle or grip a dockboard
safely, they could drop it on their feet, crush their fingers while
putting the dockboard into place, or fall. Handholds also make it
possible to place dockboards into the proper position (e.g., adequate
overlap, secure position) so the dockboards will be safe for workers to
use.
    Final paragraph (e) is essentially the same as existing Sec.
1910.30(a)(4) and is consistent with B56.1-2012 (Section 4.13.3),
MH14.1-1987 (Section 3.2.(b)), MH30.1-2007 (Section 5.2.1), and MH30.2-
2005 (Section 6.1.6). OSHA notes that these national consensus
standards also specify that, when handling a portable dockboard

mechanically, employers must provide forklift loops, lugs, or other
effective means to move or place the dockboard. There were no comments
on the provision and OSHA adopted the provision with minor editorial
revisions.
Section 1910.27--Scaffolds and Rope Descent Systems
    Final Sec.  1910.27, like the proposed rule, addresses scaffolds
and rope descent systems (RDS) used in general industry. The purpose of
Sec.  1910.27 is to protect workers whose duties require them to work
at elevation, whether on scaffolds or RDS. The existing standards
(Sec. Sec.  1910.28 and 1910.29) address scaffolds, but not RDS. Prior
to the final rule, OSHA regulated the use of RDS under the general duty
clause (29 U.S.C. 654(a)(1)) and through written policy statements that
established minimum expectations for employers who use RDS.
    For two reasons, OSHA divided the final rule into separate
paragraphs for scaffolds and RDS. First, the record shows that the
hazards involved in working on scaffolds are different from the hazards
associated with using an RDS (Exs. 66; 122; 221). Second, based on
comments received in the record, OSHA believes that the final rule
should not regulate RDS as a type of suspended scaffold. Uniformly,
commenters said RDS are not suspended scaffolds (Exs. 122; 163; 205).
For example, Mr. Matt Adams, with Rescue Response Gear, stated: ``Rope
descent systems are described in this document as representing a
variation of the single-point adjustable suspension scaffold. This is a
terribly antiquated view of what rope work really is, and does not
adequately acknowledge the extreme versatility and safety record of
rope access'' (Ex. 122). The Society of Professional Access Technicians
(SPRAT) had similar concerns, noting:

    Permitting rope descent systems to be regulated as suspended
scaffolds is potentially hazardous in that this does not adequately
address the versatility, safety, and training required to achieve
safety while working suspended on rope. The hazards associated with
suspended scaffolds do not in any way emulate the hazards associated
with roped access work, and as a result the mitigation measures,
training, and equipment requirements also differ (Ex. 205).

    For the reasons discussed above, OSHA also revised the title of
this section of the final rule to ``Scaffolds and Rope Descent
Systems'' from the proposed ``Scaffolds (including rope descent
systems).'' OSHA agrees with commenters that the proposed title may
mistakenly imply that RDS are a type of scaffold (Exs. 122; 221). The
only purpose of the proposed title was to indicate that RDS, like
scaffolds, involve working at elevated work locations.
    OSHA notes that a number of stakeholders who commented on various
provisions of proposed Sec.  1910.27 submitted almost identical
comments. OSHA does not cite to all of these comments when discussing
each provision of the final rule. Instead, OSHA cites to samplings of
those comments when addressing an issue.
    OSHA drew the rope descent system requirements in the final rule
from the following sources:
     1991 OSHA memorandum to regional administrators allowing
the use of RDS when employers follow all of the provisions outlined
therein (Ex. OSHA-S029-2006-0062-0019);
     American National Standards Institute/American Society of
Safety Engineers ANSI/ASSE Z359.4-2012 Safety Requirements for
Assisted-Rescue and Self-Rescue Systems, Subsystems and Components
(ANSI/ASSE Z359.4-2012) (Ex. 387); and
     American National Standards Institute/International Window
Cleaning Association I-14.1-2001--Window Cleaning Safety (I-14.1-2001)
(Ex. 14).\32\
---------------------------------------------------------------------------

    \32\ After the rulemaking record was closed and certified on
June 13, 2011, ANSI administratively withdrew ANSI/IWCA I-14.1-2001,
Window Cleaning Safety, on October 23, 2011, because the standard
had not been revised or reaffirmed by the deadline required. ANSI
Essential Requirements (www.ansi.org/essentialrequirements) specify
all that ANSI national consensus standard must be revised or
reaffirmed within 10 years from their approval as an American
National Standard or the standard is automatically withdrawn
(Section 4.7 Maintenance of American National Standards).
    SEIU Local 32BJ objected to OSHA's reliance on I-14.1-2001,
arguing that the ANSI/IWCA I-14 committee did not operate by
consensus and misrepresented votes (Ex. 316, 324, Ex. 329 (1/19/
2011), pgs. 5-8). The Local submitted a number of documents
purportedly substantiating this claim (see Ex. 316-320). However,
ANSI has due process requirements that standards developers must
follow. Because the I-14 committee was accredited by ANSI and the I-
14.1-2001 standard was approved by ANSI, OSHA presumes those
requirements were followed. ANSI's requirements include procedures
for dealing with the sort of objections Local 32BJ has made, and
nothing in these documents show that Local 32BJ presented its claims
to ANSI, through an appeal or otherwise. OSHA is unable to ascertain
from the Local's documents that the I-14 committee did not follow
the ANSI rules.
---------------------------------------------------------------------------

Paragraph (a)--Scaffolds
    Final paragraph (a), like the proposed rule, requires that
employers ensure scaffolds used in general industry meet the
requirements in the construction scaffold standards (29 CFR 1926,
subpart L (Scaffolds)), and, as a result, the final rule deletes the
existing general industry scaffold requirements (existing Sec. Sec.
1910.28 and 1910.29). The construction scaffold standards, which OSHA
updated on August 30, 1996 (61 FR 46104; 61 FR 46107; 61 FR 46116)),
are more current than the general industry standards, which OSHA first
adopted in 1974 (39 FR 23502), and last updated in 1988 (53 FR 12121
(4/12/1988)).
    The final rule, similar to the proposed and construction scaffold
rules, defines scaffold as a ``temporary elevated or suspended platform
and its supporting structure, including anchorage points, used to
support employees, equipment, materials, and other items'' (Sec.
1910.21(b)). For the purposes of final subpart D, scaffolds do not
include crane-suspended or derrick-suspended personnel platforms or
RDS. OSHA's standard on powered platforms for building maintenance
(Sec.  1910.66) addresses personnel platforms used in general industry.
    Commenters supported making OSHA's general industry and
construction standards consistent. For example, Mr. Bill Kojola with
the AFL-CIO, said: ``We believe that it is important to have consistent
standards that address scaffolds so that all workers, regardless of the
industry in which they work, have equal or equivalent protection from
the hazards that are associated with scaffolds'' (Ex. 172). At the
hearing on the proposed rule, Mr. Kojola added:

    OSHA is proposing that general industry comply with the
construction industry's scaffold standards in 29 CFR 1926(L). . . .
By requiring employers in general industry to comply with the
construction scaffold standards, consistency will be achieved as
well as a decrease in any confusion that . . . would likely arise if
the standards were different between these two industries (Ex. 329
(1/20/2011, p. 222)).

Mr. Mark Damon, president of Damon, Inc., observed: ``My experience is
that people in general industry are sometimes involved in the erection
of scaffolds. I believe . . . similar protection should be afforded to
workers in general industry'' (Ex. 251).
    OSHA believes that the final rule will ensure consistent
application of the general industry and construction standards, and
increase understanding of, and compliance with, the final rule by
employers who perform both general industry and construction work. The
record indicates that many general industry employers who use scaffolds
also perform construction work on scaffolds; therefore, they already
are familiar with the construction scaffolds standards. OSHA believes
that having those employers comply with a single set of requirements
will facilitate

compliance and, thus, provide greater worker protection. In addition,
these employers will not have to change their current practices to meet
the requirements of the final rule. OSHA also believes that other
general industry employers should not have difficulty complying with
the final rule. The construction scaffold standards include all 21
types of scaffolds the existing general industry standards regulate.
Therefore, OSHA finalizes paragraph (a) as discussed.
Paragraph (b)--Rope Descent Systems
    Final paragraph (b), similar to the proposed rule, establishes
requirements for rope descent systems (RDS) when employers use them.
The final rule defines an RDS as a ``suspension system that supports an
employee in a chair (seat board) and allows the employee to descend in
a controlled manner and, as needed, stop at any point during the
descent'' (Sec.  1910.21(b)). An RDS, sometimes referred to as
controlled descent equipment or apparatus, usually consists of a roof
anchorage, support rope, descent device, carabiner(s) or shackle(s),
and a chair (seat board) (Sec.  1910.21(b)). The final rule definition
also expressly states that an RDS does not include industrial rope
access systems.
    The use of RDS is prevalent in the United States today. Employers
frequently use RDS in building cleaning (including window cleaning),
maintenance, and inspection operations. As far back as 1990, OSHA noted
that, according to some estimates, 60 percent of all window cleaning
operations used RDS (55 FR 92226). In 2010, Valcourt Building Services
(Valcourt) stated that about 70 percent of all window cleaning
operations in high-rise buildings in the United States used RDS (Ex.
147).
    OSHA's existing general industry and construction standards do not
address the use of RDS.\33\ In the 1990 proposed rule, OSHA requested
comments on whether OSHA should allow or prohibit the use of RDS (55 FR
29224, 29226 (7/18/1990)). Although OSHA did not finalize the 1990
proposal, in 1991 the Agency issued a memorandum allowing the use of
RDS when employers follow all of the provisions outlined in that
memorandum (hereafter, ``1991 RDS memorandum'') (Ex. OSHA-S029-0662-
0019).\34\
---------------------------------------------------------------------------

    \33\ The existing general industry rule only covers boatswain's
chairs (29 CFR 1910.28(j).
    \34\ 1991 RDS Memorandum is available from OSHA's Web site at:
http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_id=22722.
---------------------------------------------------------------------------

    The 1991 RDS memorandum specified that employers must use RDS in
accordance with the instruction, warnings, and design limitations that
the manufacturer or distributor sets. In addition, the 1991 RDS
memorandum specified that employers must implement procedures and
precautions including employee training; equipment inspection; proper
rigging; separate fall arrest systems; equipment strength requirements;
prompt employee rescue; padding of ropes; and stabilization. OSHA based
the proposed rule on the provisions in the 1991 RDS memorandum. OSHA
notes that the International Window Cleaning Association (IWCA) also
based its standard, ANSI/IWCA I-14.1-2001--Window Cleaning Safety (I-
14.1-2001), on the 1991 RDS memorandum. Commenters overwhelmingly
supported, and already comply with, the requirements in that memorandum
and I-14.1-2001 (Exs. 138; 147; 163; 184; 221; 242).
    OSHA received many comments on RDS, most of which supported
allowing employers to use those systems (Exs. 138; 151; 153; 205; 219;
221; 222; 227; 241; 243). First, many commenters said RDS are safe and,
as a number of commenters claimed, safer than using suspended
scaffolding (Exs. 163; 184; 221; 227; 242; 243; 329 (1/19/2011, pgs.
326-329)). Mr. Stephan Bright, with IWCA and chair of the I-14.1
committee, said that RDS are safe, particularly when used in accordance
with the I-14.1-2001 standard, which has established ``accepted safe
practices'' for using RDS (Ex. 329 (1/19/2011, p. 466)). He also
indicated that OSHA must believe RDS are safe to use because the Agency
``has been referencing this standard since its publication and has used
this standard as a guideline to enforce rope descent system safety in
over 100 citations against window cleaning contractors in the last 10
years'' (Ex. 329 (1/19/2011, p. 466)). Mr. Bright said that the
decreases in injuries and fatalities associated with RDS use since the
IWCA issued the I-14.1-2001 standard ``clearly reveal that RDS is a
safe and viable means to use when the eight provisions of OSHA's
memorandum and the I-14 Standard are met. Enforcement of the same by
OSHA only increases the level of safety'' (Ex. 329 (1/19/2011, p.
467)).
    Mr. Sam Terry, owner and president of Sparkling Clean Window
Company (Sparkling Clean), said his analysis of more than 350 incidents
(125 involving window cleaning) showed that RDS are safer than
suspended scaffolding (Exs. 163; 329 (1/19/2011, pgs. 326-329)). In
particular, he said the analysis indicated that the RDS provisions of
the proposed rule would prevent almost every RDS incident, while more
than 80 percent of the suspended scaffolding incidents resulted from
equipment failure that was ``beyond the control'' of the employer or
workers using the equipment (Exs. 163; 329 (1/19/2011, pgs. 326-329)).
    Commenters also said RDS are safer than suspended scaffolds because
they said RDS do not involve the ``ergonomic consequences'' that
suspended scaffolding does (Exs. 163; 184; 221; 242). These commenters
pointed out that, in many cases, moving and assembling suspended
scaffolding components requires lifting heavy weights, such as davit
masts (weighing up to 160 pounds), davit bases (weighing up to 145
pounds), and davit booms (weighing up to 98 pounds).
    Second, some commenters supported allowing RDS because RDS give
employers greater control over the safety of workers and the public
than suspended scaffolding (Exs. 163; 227; 243). With regard to worker
safety, Mr. Terry said workers using RDS are able to descend to the
ground or ``get themselves and their equipment out of harm's way'' more
quickly than workers using suspended scaffolding (Exs. 163). Commenters
said this advantage is particularly important if sudden or unexpected
dangerous weather hazards appear (Exs. 138; 163; 184; 221; 242).
Sparkling Clean said:

[A] worker can stop and be on the ground in a matter of minutes . .
. . [O]f the 65 incidents and 31 fatalities which occurred by users
of RDS in the window cleaning industry since 1995, not one occurred
as a result of . . . using the equipment during wind gusts, micro
bursts or tunneling wind currents (Ex. 163).

    Moreover, Sparkling Clean maintained that the adverse weather does
not affect using RDS any more than using suspended scaffolding (Ex.
163).
    With regard to protecting the safety of the public and other
workers on the ground, commenters indicated that RDS are safer because
suspended scaffolding requires assembling components, often done on
narrow ledges without fall protection, and these components could fall
and strike individuals below (Exs. 163; 184; 221; 242).
    Third, commenters supported allowing employers to use RDS because
acceptance of RDS increased over the last 20 years since OSHA issued
the 1991 RDS memorandum and the IWCA adopted its I-14.1 standard, which
addresses RDS (Ex. 147). As noted earlier, Mr. Bruce Lapham, of
Valcourt, mentioned that, nationally, about 70 percent of all window
cleaning operations in high-rise buildings use

RDS (Ex. 147). IWCA also said that the use of RDS by their member
companies has grown since it issued the I-14.1-2001 standard (Ex. 329
(1/19/2011, p. 483)). Mr. Lapham said that, although the IWCA standard
made window cleaning safer, he had concerns that without ``clear cut
regulations'' on RDS, misuse of that equipment could occur (Ex. 147).
    Finally, several commenters urged OSHA to allow employers to use
RDS because they are less expensive than suspended scaffolding (Exs.
163; 184; 221; 242). Some commenters said that using suspended
scaffolding can cost as much as 30 percent more than using RDS (Ex. 329
(1/19/2011, pgs. 209, 314)). Other commenters said using RDS was less
costly even if the building has an existing suspended scaffold system
(Exs. 163; 184; 221; 242). Mr. Terry explained:

    The time involved in setting up a powered platform system and
riding the scaffold up and down at 30 feet per minute is typically
much slower than using [RDS]. The largest cost we incur in providing
our services is labor by a significant percentage. Therefore, in
many cases, it is actually less expensive to access the side of the
building using [RDS] . . . (Ex. 163).

    Commenters also said OSHA should allow employers to use RDS even if
the design of the building or structure permits the use of other means
and methods to perform window cleaning or other maintenance activities
(Exs. 163; 184; 221; 242).
    OSHA notes that many commenters provided support for the use of
RDS, saying that OSHA should allow employers to use RDS, but only if
employers follow all of the provisions in OSHA's 1991 RDS memorandum,
as well as those in I-14.1-2001, including the 300-foot RDS height
limit (Exs. 138; 147; 215; 245; 331).
    A number of commenters, primarily workers and worker organizations,
opposed allowing employers to use RDS (Exs. 311; 313; 316; 329 (1/19/
2011, pgs. 5-8, 17-19)); 329 (1/20/2011, p. 222)). For example, the
Service Employees International Union (SEIU) Local 32BJ members opposed
allowing RDS because they said RDS were not safe (Exs. 224; 311; 313;
316; Ex. 329 (1/19/2011, pgs. 5-8)). At the hearing, Mr. John Stager,
former SEIU Local 32BJ president, said:

    I wonder whether OSHA has seriously studied the hazards and
evaluated the history of this rulemaking; and if so, I do not
understand how OSHA could have decided that unrestricted use of RDS
is compatible with OSHA's mission of adopting fully protective
safety standards. I understand that OSHA's [1991 RDS memorandum] was
much less than a fully protective standard; rather, it was the way
that OSHA deals with hazards for which no standards exist. We
disagreed with the terms of the [1991 RDS memorandum] then, and
still do today . . . . But, to incorporate the terms of [the 1991
RDS memorandum], or terms like them, in a permanent standard is
completely inadequate and flawed. In fact, it flies in the face of
the Supreme Court's decision that OSHA must place pre-eminent value
on assuring employees a safe and healthful working environment
limited only by the feasibility of achieving such an environment
(Ex. 329 (1/19/2011, pgs. 5-6)).

Mr. McEneaney, another SEIU Local 32BJ member, added:

    My comparisons and recommendations will ultimately show that
even if these proposed safety standards are adopted, controlled
descent devices cannot adequately ensure worker safety to the same
extent as scaffolding. A major difference between scaffolding and
rope descent systems is the type of rope used. The wire rope
utilized in scaffolds is never subject to failure due to abrasions;
unlike RDS ropes that are constantly at risk of abrasion once it
goes past the entry point. There was also no reliable mechanism for
protecting RDS rope from abrasion points between the point of entry
and the ground; for example, cornices and signs, et cetera (Ex. 329
(1/19/2011, pgs. 17-19)).

Mr. Jesus Rosario, a SEIU Local 32BJ member, and window cleaner since
1989, called RDS ``a very dangerous system'' (Ex. 311). He explained
his personal experience with RDS as a way to substantiate his
contention:

    The protection gap [for RDS] increases with the length of the
rope. The more rope, the more movement. The wind can push you around
much more [when using an RDS rather than suspended scaffolding].
When I was about 10 stories, I have swayed as much as 3 windows
apart from sudden wind. And I have been pushed by the wind when I
was as little as 5 or 6 stories down.
    Once, I was working by myself, and the rope below me got caught
in a fan. I had to climb down the lifeline rope to get out of the
[RDS]--about three stories. . . . Entry over the side [of the roof]
is very dangerous. Sometimes, I have even had to jump with my chair
to the edge of the building, and then over the side, which could
crack the chair (Ex. 311).

Mr. Rosario summed up:

    Please do not allow the contractors and the building owners to
use RDS. Sure, sometimes there will be places where you just cannot
hang a scaffold. But if there is any way to safely hang a scaffold,
it is so much safer that there is no good reason to allow [RDS]. I
know it's cheaper for the building owner. But so what--isn't my life
worth something too (Ex. 311)?

    Mr. Hector Figueroa, SEIU Local 32BJ secretary-treasurer, mentioned
the New York regulation prohibiting RDS use on buildings above 75 feet
as the best proof that RDS are dangerous, and that OSHA should not
allow their use (Ex. 224). SEIU also urged that federal OSHA allow the
New York regulation to continue without federal preemption, because
they believed it is far more protective than the proposed standard.
(See the discussion of the preemption issue in the Federalism section.)
    OSHA disagrees with Local 32BJ, and has decided against banning all
RDS use. The record shows that RDS is a useful method of accessing the
sides of building and necessary, at least in certain circumstances.
Further, the record shows that RDS use can be conducted safely if
proper precautions are followed.
    For more than 20 years OSHA has permitted employers to use RDS,
provided that employers follow all of the requirements in the 1991 RDS
memorandum. Stefan Bright, with IWCA, provided evidence supporting the
inference that the 1991 RDS memorandum protects workers:

    A survey of IWCA membership was conducted in 1996 and it
revealed the following facts: . . . that approximately 800 systems
were being used on a day to day basis with an average of 8,000
descents a day and over the course of that nine-month season, which
fluctuates because [in] the warmer states, it's 12 months, the
states like here in the North are about nine, 800 workers performed
1,584,000 descents in 1996. In 1996, there was one fatality by a
window cleaner using a rope descent system.
    In 1991, OSHA published the infamous eight-step RDS memorandum.
In the six years prior to this publication, 1985 to 1991, there were
19 fatalities by window cleaners using RDS to perform an estimated
nine million descents using the previous information. In the six
years after the memorandum was published, 1991 to 1996, only 11
fatalities occurred when window cleaners were using RDS to perform
the same number of descents. So that was a significant drop, almost
50 percent reduction (Ex. 329 (1/19/2011, pgs. 463-465)).

Further, as discussed in the FEA, OSHA conducted an analysis of 36
incidents in which one or more deaths were caused by a fall from an RDS
between 1995 and 2001. It found that all of the 21 of these incidents
caused by the mishandling or malfunction of RDS system or lifelines
would be prevented by compliance with one or more provisions of the
final rule. OSHA is not aware of any fatalities involving RDS that have
occurred when all of the requirements of the final rule were followed.
    The final rule incorporates all of the requirements in the 1991 RDS
memorandum. In addition, the final rule adopts additional requirements,
including anchorage requirements, a 300-foot RDS height limit,
prohibition

on RDS use in hazardous weather, securing equipment, and protecting
ropes from hazardous exposures. OSHA believes these requirements
enhance the protection of workers provided by the 1991 RDS memorandum.
Moreover, OSHA believes that the additional protections address a
number of the safety concerns SEIU Local 32BJ raised. Accordingly, the
final rule continues to allow the use of RDS for suspended work that is
not greater than 300 feet above grade.
    In the final rule, OSHA added language to the definition of RDS
expressly specifying that RDS do not include industrial rope access
systems (IRAS) (Sec.  1910.21(b)). As such, final Sec.  1910.27 does
not cover or apply to IRAS. However, other sections of the final rule,
including Sec.  1910.28, do cover IRAS.
    OSHA agrees with commenters who said IRAS and RDS are different
(Exs. 69; 129; 205). For example, Ms. Loui McCurley, of SPRAT, said:

    I would like to point out that rope access is not the same thing
as controlled descent, rope descent systems, any other big bucket
that you might want to put it in. Rope access systems and rope
access technicians vary greatly from just a controlled descent or a
rope descent system (Ex. 329 (1/19/2011, pgs. 135-138)).

    Commenters also pointed out other differences between the two
systems. Global Ascent said that IRAS use a two-rope system (Ex. 129).
They stated the two-rope system consists of a working line and a safety
line, whereas RDS use only a working line (Ex. 129). Accordingly,
Global Ascent noted that IRAS have built-in fall arrest by virtue of
the dual-ropes (Ex. 129). Several commenters also said that the
training requirements necessary for IRAS use and RDS use are much
different (Exs. 78; 129; 205). They also said IRAS users need more
training than RDS users. Based on these comments, OSHA concluded that
IRAS differ significantly from RDS and did not include them in the RDS
requirements in final Sec.  1910.27(b).
    Final paragraph (b)(1) adds new requirements for anchorages to
secure RDS. The final rule defines anchorage as a secure point of
attachment for equipment such as lifelines, lanyards, deceleration
devices, and rope descent systems (final Sec.  1910.21(b)). The
proposal would have required that employers use ``sound anchorages,''
and OSHA noted that they are ``essential to the safety of RDS''
(proposed Sec.  1910.27(b)(2)(iv); 75 FR 28886). OSHA also noted that
the 1991 RDS memorandum required that employers rig RDS properly,
including having ``sound anchorages'' (75 FR 28869). Although the
proposed rule did not include specific requirements on anchorages for
RDS, proposed Sec.  1910.140(c)(12) contained a requirement for a
separate anchorage for personal fall arrest systems. The Agency
requested comment on whether its proposed approach was sufficient to
ensure the safety of anchorages.
    OSHA also noted in the proposed rule that the Agency raised the
issue of anchorages, and also requested comments in the 1990 proposal
(55 FR 29224 (7/18/1990)). At that time, IWCA and window cleaning
companies told OSHA that there often were no anchorages on building
rooftops (75 FR 28869; OSHA-S041-2006-0666-0543; OSHA-S041-2006-0666-
1252; OSHA-S041-2006-0666-1253). Since the companies did not own or
have control over the building, they had no control over whether or
where building owners would place anchorages. Therefore, they urged
OSHA to require building owners to install anchorages and test,
inspect, maintain, and certify that the anchorages are capable of
holding the RDS, worker, and all equipment. As noted, OSHA did not
finalize the 1990 proposed rule.
    Today, OSHA continues to believe anchorage requirements are
necessary because, as the Final Economic Analysis indicates, anchorage
failure is one of the primary causes of window cleaning accidents
involving RDS. Data that Mr. Terry, president of Sparkling Clean,
compiled and analyzed also showed that lack of sound anchorages
accounted for 65 (more than 50 percent) of the 125 window cleaning
incidents involving RDS (Ex. 163). Mr. Stefan Bright, with the IWCA,
said their analysis of window cleaning fatalities revealed that 95
percent were due to lack of sound anchorages (Ex. 329 (1/19/2011, p.
465)). In addition, commenters uniformly supported adding specific
requirements on anchorages to the final rule (Exs. 163; 184; 221; 242).
    Final paragraph (b)(1)(i) requires that, before the employer uses
any rope descent system, the building owner informs the employer in
writing that the building owner has identified, tested, certified, and
maintained each anchorage so it is capable of supporting at least 5,000
pounds in any direction, for each worker attached. The final rule also
requires that the building owner base the information provided to the
employer on:
     An annual inspection; and
     A certification of each anchorage, as necessary, and at
least every 10 years.
    The building owner must ensure that a ``qualified'' person conducts
both the inspection and certification. The final rule defines qualified
as a person who, by possession of a recognized degree, certificate, or
professional standing, or who by extensive knowledge, training, and
experience has successfully demonstrated the ability to solve or
resolve problems relating to the subject matter, the work, or the
project (Sec.  1910.21(b)).
    For the purposes of final paragraph (b)(1)(i), the term ``as
necessary'' means when the building owner knows or has reason to
believe that recertification of the anchorage is needed. The final rule
gives building owners flexibility in determining when anchorage
recertification is necessary. Factors or conditions indicating that
recertification may be necessary include, but are not limited to, an
accident involving a worker using an RDS, a report of damage to the
anchorage, major alteration to the building, exposure of the anchorage
to destructive industrial substances, and location of the building in
an area of high rainfall or exposure to sea air and humidity that might
accelerate corrosion.
    OSHA requested comment on adding more provisions ensuring the
safety of anchorages in the final rule. In particular, the Agency asked
whether it should adopt the information disclosure requirements of
Sec.  1910.66.
     Paragraph (c)(1) of Sec.  1910.66 requires that building
owners of new installations inform employers in writing that
installations meet the requirements of paragraphs (e)(1) and (f)(1) of
that section and additional design criteria contained in the other
provisions of paragraphs (e) and (f).
     Paragraph (c)(2) of Sec.  1910.66 requires that building
owners base the information required in paragraph (c)(1) on the results
of a field test of the installation before being placed into service
and following any major alteration to an existing installation, and on
all other relevant available information, including, but not limited
to, test data, equipment specification, and verification by a
registered professional engineer.
     Paragraph (c)(3) of Sec.  1910.66 requires that building
owners of all installations, new and existing, inform employers in
writing that the installation has been inspected, tested, and
maintained in compliance with the requirements of paragraphs (g)
(inspection, tests, and certification) and (h) (maintenance) of the
section and that all protection anchorages meet the requirements of
paragraph (I)(c)(10) of appendix C (fall protection anchorages must be
capable of supporting 5,000 pounds).

    Paragraph (e) of that rule specifies that structural supports, tie-
downs, tie-in guides and affected parts of the building included in the
installation shall be designed by or under the direction of a
registered professional engineer experienced in such design (Sec.
1910.66(e)(1)(i)).
    In addition, the I-14.1-2001 standard requires that building owners
provide window cleaning contractors with the following written
information:
     The installation or structure has been inspected, tested
and maintained in compliance with the requirements of I-14.1-2001;
     All equipment dedicated to the building meets the
requirements in Part B (i.e., equipment and building design
requirements, such as the requirement that anchorages support a 5,000
pound load in any direction (9.1.11) and that certifications and re-
certifications of anchorages be conducted under the supervision of a
registered professional engineer (Section 9.1.10);
     Specified load ratings, intended use and limitations to
fixtures permanently dedicated to buildings; and
     Manufacturer's instructions for installations, anchorages
and fixtures permanently dedicated to the building (Section 1.6.2 (a)-
(d)).
    Overwhelmingly, commenters supported requiring that building owners
identify, test, and maintain anchorages, and certify that those
anchorages are capable of supporting 5,000 pounds in each direction for
each attached worker.
    Many commenters said the anchorage provision is necessary because
the lack of ``sound anchorages'' was the leading cause of fatalities
and incidents involving RDS (Exs. 138; 163; 184; 221; 222; 243).
Valcourt said:

    [W]orkers that use Rope Descent Systems deserve a safe place to
work. . . . There is no greater contributing factor to having a safe
workplace in which to use an [RDS] than having identified and
certified anchorage points in which to tie to. In its 26-year
existence, Valcourt has seen both building owners and window
cleaners come to a greater understanding of this fact, leading to
much safer working conditions (Ex. 147).

    Another commenter, 20/20 Window Cleaning of NC, said the new
anchorage requirement would prevent accidents and save lives (Ex. 153).
IWCA noted that, without the new provision, workers using RDS would not
have an equivalent level of protection than do workers who use
permanent powered platforms (Ex. 138).
    Commenters also said the anchorage requirement is necessary because
many building owners do not provide certified anchorages, even though
IWCA issued the I-14.1-2001 standard more than 10 years ago (Exs. 147;
163; 245; 329 (1/19/2011, pgs. 218-219)). Valcourt said about 75
percent of the buildings they service do not have certified anchorages,
while LWC Services said less than 5 percent of the buildings they
service have them (Exs. 147; 245). LWC Services also estimated that
seven percent of mid- and high-rise buildings have certified anchorages
(Ex. 245). Finally, LWC Services said their most significant problem is
finding anchorage points to allow suspension of equipment, and they
questioned how they could install anchorages when they only work at a
particular location for a couple of days per year, inferring
infeasibility (Ex. 245).
    Most commenters said they think permanent anchorages are the
responsibility of building owners, and they urged OSHA to require that
building owners provide anchorages, and to inspect, test, certify, and
maintain them (Exs. 138; 147; 163; 184; 193; 221; 242; 329 (1/19/2011;
pgs. 378-388)). Valcourt said OSHA needed to mandate that building
owners provide anchorages because building owners will not provide and
certify anchorages if it is voluntary:

    If OSHA . . . [omits] the requirement of building owners to have
their roof anchorage systems initially certified . . . and inspected
by a qualified person annually, many building owners will simply
state that it is not a requirement of OSHA and not [do it]. This
would make the marketplace more dangerous and be a regression of 20
years in window cleaning safety for both the window cleaning and
building owner industries (Ex. 147; 329 (1/19/2011, pgs. 378-388)).

Commenters uniformly agreed that OSHA should require that anchorages be
capable of supporting 5,000 pounds in all directions for each worker
attached, which is consistent with I-14.1-2001 (Section 9.1.1) (Exs.
163; 184; 221; 242; 243). Clean & Polish suggested that OSHA require
that anchorages sustain a 5,000 pound load or at least have a 4-to-1
safety factor when using an RDS (Ex. 242). They also supported applying
this requirement to tie-backs (Ex. 242).
    Commenters were about evenly divided on whether OSHA should codify
the language in Sec.  1910.66(c) or the I-14.1-2001 standard. Regarding
his support for following the approach in Sec.  1910.66, Mr. Terry, of
Sparkling Clean, said:

    I agree that building owners should provide employers with the
same information required by 1910.66; a certificate of inspection,
testing, and maintenance of anchorages for rope access and suspended
scaffolding used in building maintenance, and that an existing
certificate for powered platform anchorages would suffice for the
same anchorages to be used for rope access. This would allow for
rope access to be utilized on buildings with systems or anchorages
originally designed for suspended scaffold use without any new
requirements or expenses on the building owner (Ex. 329 (1/19/2011,
pgs. 224-226)).

    Commenters provided recommendations for specific language and items
the final requirement on anchorages should contain. For example, Penta
Engineering said OSHA should require load testing of all anchorages and
davits (Ex. 193). Martin's Window Cleaning (Martin's) said OSHA should
require that employers ask for and obtain verification of anchorage
certification (Ex. 65).
    Several commenters recommended specific timelines for anchorage
inspection and certification. Martin's recommended inspections every
year, and certifications every 10 years (Ex. 65). Penta Engineering
Group agreed, and recommended that OSHA also require anchorage
recertification after building owners install new roof systems (Ex.
193).
    One commenter urged OSHA to require that building owners ensure
qualified persons conduct the annual inspections and certifications
(Ex. 204). Other commenters said that professional engineers should
perform those tasks (Exs. 65; 193; 329 (1/19/2011, pgs. 378-388)). LJB
Inc., noted that it may be a violation of local and state building
codes to have anyone other than a professional engineer certify
anchorages (Ex. 204). OSHA notes that, under the final provision and
the final definition of qualified, building owners are free to use
professional engineers to inspect and certify anchorages.
    OSHA did not receive any comments opposing an anchorage
requirement. OSHA notes that the Building Owners and Managers
Association (BOMA) did not submit any comments on the proposed rule or
testify at the rulemaking hearing, but they did oppose the requirement
in the 1990 proposed rule that building owners provide anchorages. OSHA
also notes BOMA was a member of the I-14.1-2001 committee that approved
the national consensus standard, which includes anchorage requirements
building owners must meet. OSHA agrees with many of the comments and
recommendations submitted to the record, and incorporated many of them
into the final rule. For example, given that outside contractors
generally perform building maintenance (such as window cleaning), and
that these

outside contractors usually have no control over the building
anchorages and are at particular buildings for only a few days, OSHA
determined that inspecting, testing, certifying, and maintaining
anchorages and providing information about the anchorages must be the
responsibility of building owners. Only when building owners take
responsibility for anchorages and provide written information to
employers and contractors, can there be adequate assurance that workers
will be safe when they use RDS.
    Final paragraph (b)(1)(ii) establishes a new provision that
requires employers to ensure that no employee uses any anchorage before
the employer obtains written information from the building owner that
the anchorage meets the requirements of final paragraph (b)(1)(i). In
other words, the final rule requires that employers ensure no employee
uses an RDS until the employer obtains written information that the
building owner identified, tested, certified, and maintained each
anchorage so it is capable of supporting at least 5,000 pounds in any
direction for each worker attached. The final rule also requires that
the employer keep the written information from the building owner for
the duration of the job.
    OSHA's powered platforms standard contains a requirement similar to
the final rule (Sec.  1910.66(c)(4)). Also, the I-14.1-2001 standard
requires that employers (i.e., window cleaning contractors) and
building owners not allow suspended work to occur unless the building
owner provides, identifies, and certifies anchorages (Section 3.9).
    OSHA believes the final rule will ensure that each anchorage to
which workers attach an RDS meets the inspection, testing,
certification, and maintenance requirements of the final rule before
workers attach to it. Under the final rule, employers are not to allow
workers to attach to an anchorage and begin work if the employer did
not receive written certification that the anchorage is capable of
supporting 5,000 pounds. Specifically, final paragraph (b)(1)(ii)
prohibits employers, when there are no certified anchorages, from
``making do'' or attaching RDS to alternative structures, making the
assumption that these structures are capable of supporting 5,000
pounds.
    OSHA acknowledges that employers currently attach RDS to other
structures if there are no certified anchorages available. For example,
Mr. Charles Adkins, of Corporate Cleaning Services (Corporate
Cleaning), explained what his company does at the 30 to 40 percent of
the buildings they service that don't have certified anchorages:

    They go up and they select it with the assistance of the foreman
who is--we have--we've heard some mention of supervision here and we
totally agree that that's a very important fact and that's why we
have four salaried foremen, plus an operations manager, who focus
exclusively on supervision.
    They go up and select them. There are a number of alternatives.
They can attach them to the permanent part of the building. They can
use parapet clamps if they have a way to properly attach the tieback
and the safety line to it and just about every building is
different. Sometimes we can use weights to keep them from--to help
hold the ropes (Ex. 329 (1/19/2011, pgs. 218-219)).

    Finally, OSHA believes that the written information on anchorages
that building owners must provide to employers will be helpful for
employers throughout the job. Employers can use the information to keep
workers continuously informed about which anchorages have proper
certification. The information also will be helpful if there are work
shift-related changes in personnel, if the employer brings new workers
to the job, or if there is a change in site supervisors. Therefore, the
final rule is requiring employers to retain the written information on
anchorages they obtained from building owners for the duration of the
job at that building.
    In final paragraph (b)(1)(iii), OSHA provides employers and
building owners with additional time to implement the requirements in
final paragraphs (b)(1)(i) and (ii). The final rule gives employers and
building owners one year from November 18, 2016 to meet the new
requirements in final paragraphs (b)(1)(i) and (ii). This means that
building owners must identify, inspect, test, certify, and maintain
each anchorage by the compliance date.
    OSHA believes the additional compliance time is necessary because a
number of commenters said most buildings where they use RDS do not have
certified anchorages (Exs. 147). For example, Mr. Lapham, of Valcourt,
said that their company services 3,850 buildings in 14 states (Ex.
147). Of the buildings Valcourt cleans, Mr. Lapham said almost 75
percent did not have certified anchorages, more than 20 years after
OSHA issued the final Powered Platforms standard (Sec.  1910.66) (Ex.
147).
    Mr. Charles Adkins, of Corporate Cleaning Services, the largest
window cleaning company in the Chicago area, said that they perform
window cleaning services on more than 1,200 buildings (Ex. 329 (1/19/
2011, p. 201)). He estimates that about 60 to 70 percent of those
buildings already have certified anchorages (Ex. 329 (1/19/2011, pgs.
218-219)).
    In the 1990 rulemaking, BOMA objected to requiring building owners
to provide anchorages, but agreed that new buildings completed two to
five years after the effective date of the final rule should have
anchorages (75 FR 28862, 28879; Ex. OSHA-S041-2006-0666-1212).
    It is now 24 years since OSHA first proposed a rule addressing RDS,
and 23 years since OSHA's 1991 RDS memorandum allowed the use of RDS
provided they have ``sound anchorages.'' OSHA does not believe building
owners, at this late date, need another two to five years to identify,
inspect, test, certify, and maintain anchorages in new or existing
buildings. OSHA believes that giving building owners an additional year
to meet the requirements of final paragraph (b)(1)(i) is adequate.
    Final paragraph (b)(2) establishes RDS design and work-practice
requirements that employers must follow to ensure their workers' safety
when using an RDS. OSHA drew most of the requirements from the 1991 RDS
memorandum and the I-14.1-2001 national consensus standard. Many
commenters who supported allowing the use of RDS also supported
requiring employers to comply with all of the provisions in the 1991
RDS memorandum and I-14.1-2001 (Exs. 138; 151; 219).
    Final paragraph (b)(2)(i), like proposed paragraph (b)(1) and the
I-14.1 standard (Section 5.7.12), requires that employers ensure no RDS
is used at heights greater than 300 feet (91 m) above grade. The final
rule includes two exceptions to the 300-foot height limit, discussed
extensively below.
    Many stakeholders supported the proposed 300-foot height limit
(Exs. 138; 147; 168; 206; 215; 300; 329 (1/19/2011, pgs. 253-254, 401);
329 (1/21/2011, pgs. 98, 474, 477); 331). They said using an RDS at
heights above 300 feet was dangerous for workers, and establishing a
height limit was an important ``safety issue'' (Exs. 147; 215). Mr.
John Capon, of Valcourt, said, ``I think anything above 300 feet is
preposterous, to be honest with you. The risks associated with it, just
the height, all the conditions, are just overly-dramatic at that
height'' (Ex. 329 (1/19/2011, p. 401)). Mr. LaRue Coleman, of JOBS
Building Services (JOBS), also said worker safety mandated that
employers not use RDS over 300 feet, noting: ``Contractors will always
use the excuse that an area cannot be accessed in any other manner
[than RDS] to save the building money. This is a safety issue and
should not be left up to an individual employer or

employee to make an onsite decision of this nature'' (Ex. 215). Mr.
Coleman also suggested that OSHA adopt a height limit of 130 feet,
which California OSHA \35\ uses (Ex. 215). Not only would a 130-foot
height limit significantly reduce the dangers to workers who use RDS,
but Mr. Coleman said it also would eliminate stabilization issues and
requirements (Ex. 215). OSHA notes that the State of California also
requires all buildings over 130 feet to be equipped with a powered
platform.
---------------------------------------------------------------------------

    \35\ California Code of Regulations, Title 8 Chapter 4,
Subchapter 7 Article 5, Sec.  3286.
---------------------------------------------------------------------------

    Mr. Lapham, of Valcourt, said their experience indicated that the
following factors necessitated limiting RDS use to a maximum of 300
feet:
     The significant increased effect of wind at heights above
300 feet;
     The significant increased length and weight of ropes
required for using RDS above 300 feet; and
     The increased potential that moving the weightier ropes
will ``literally pull a window cleaner over the edge of the building''
roof (Ex. 147).
    Other commenters agreed with Valcourt's analysis. Ms. Kelley
Streeter, of Vertical Access, said ropes longer than 300 feet are heavy
and moving or working with such lengths can be hazardous and strenuous
for workers (Ex. 329 (1/21/2011, p. 98)). Mr. Brian Gartner, of
Weatherguard Service, Inc. (Weatherguard), agreed, and identified
additional factors that contributed to the danger of using RDS above
300 feet:

    In my opinion, based on testing and evaluation and basic
engineering concepts, 300 feet is at the high end of the safe use
range. Suspensions over 225 feet start responding to the effects of
wind on the ropes and the worker. The longer the rope, the more
surface area is exposed to the wind. The wind effect is variable.
The lower the worker is from the roof, there is more rope above him
or her that can be subjected to the wind, thus the higher the
suspension, the more the worker is free to move.
    The longer the suspension the greater the ``spring'' in the
suspension and safety ropes. This springiness is in all synthetic
ropes that are in the diameter ranges that are used for this purpose
whether they are static type ropes or other rope types. There are
many other factors that contribute to the dangers of rope descents
above 300 feet. For every foot of increased suspension, the dynamics
and conditions change and become more problematic (Exs. 329 (1/19/
2011, pgs. 253-254); 331).

    Mr. Gartner added that there is a marked difference in handling RDS
ropes (support and fall arrest) on buildings less than 300 feet
compared to buildings above 300 feet: ``[T]he differences of how the
winds affect [the ropes] and you, on the roof, and the trouble
discerning what is happening with the ropes will speak volumes
regarding the safety issues of building height and rope descent'' (Ex.
331; see also Ex. 300). For example, he said moving heavier ropes has
the potential of pulling workers over the edge of the building (Ex.
147). In conclusion, he stated: ``Those that minimize, overlook, or
disregard all of these factors, as they are all safety concerns, are
not responsibly or realistically addressing the height issue and
manifesting a disregard to worker and the public's safety'' (Exs. 329
(1/19/2011, pgs. 253-254); 331).
    Some commenters said the 300-foot height limit would not be a
burden on most employers. Mr. Gartner said, ``The [number] of buildings
in the United States taller than 300-feet is miniscule when compared to
the [number] of buildings under 300 feet in height'' (Ex. 331). Mr.
Coleman said that the 300-foot limit would affect only six percent of
office buildings in the 19 largest national markets:

    If you were to take the study out to additional markets the
effect would be even less since smaller/shorter buildings are
typically built in these markets. If you were to add schools,
hospitals and hotels to a study the effect would be even less since
again these types of structures are typically shorter except when
located in a major metropolitan area. Of the 6% of buildings over 11
floors the vast majority of them will have either permanent rigging
or building owned davits and tie-backs thereby reducing the cost
effect of lowering the height (Ex. 215).

    Finally, commenters said OSHA should adopt the 300-foot height
limit because the I-14.1-2001 national consensus standard requires it.
Mr. Lapham, of Valcourt, who was one of the members of I-14.1-2001
committee, said it took ``multiple decades'' for the industry to agree
to the 300-foot limit in the I-14.1-2001 standard, so OSHA should not
eliminate it ``under any circumstance'' (Ex. 147). Mr. Gartner, of
Weatherguard, and also a member of the I-14.1-2001 committee, said that
Ontario, Canada, also adopted the I-14.1-2001 standard's 300-foot limit
for RDS:

    Canada spent much time and money in the establishment of their
Code with respect to the height limit of 300 feet.\36\ They did
studies, hired consultants and deliberated at length. Their Code was
promulgated due to the high death toll of their window cleaners;
they had one fatality a month before the code was enacted (Ex. 331).
---------------------------------------------------------------------------

    \36\ The Ontario window cleaning regulation specifies that
employers must not use controlled descent devices above 90 meters,
which equals 295.276 feet (R.R.O. 1990, Regulation 859 Sec.  28(c)).

    Many commenters opposed the proposed 300-foot RDS height limit for
various reasons (Exs. 126; 151; 163; 178; 184; 205; 218; 219; 221; 222;
242). Most of those commenters said there was no safety-related reason
to impose the height restriction, claiming that using RDS at heights
above 300 feet is safe (Exs. 151; 163; 184; 218; 242). Mr. Terry, of
Sparkling Clean, said using RDS ``at all heights is routinely performed
safely [and] successfully . . . in many parts of the country'' (Ex.
163). He considered using RDS at any height to be so safe that ``I
believe the proposed 1910.27(b) should actually read [that using RDS]
is encouraged at any height'' (Exs. 163; 329 (1/19/2011, p. 330)). He
added that OSHA's final rule also should allow employers to use RDS as
a substitute to the means and methods originally designed into the
building or structure when the design of the building or structure will
safely support the use of the RDS (Ex. 163).
    A number of commenters said their injury data also demonstrated
that RDS are safe to use at any height. These commenters said that they
had no recordable incidents related to using RDS on taller buildings
(Exs. 163; 184; 242). Mr. Terry said his analysis of nine RDS incidents
that involved RDS use over 300-feet indicated that none of the cases
involved the height of the work as the cause of the incident (Ex. 163).
    Many commenters said they considered RDS to be safer than powered
platforms at any height, including above 300 feet, and, thus, there was
no reason for OSHA to impose the 300-foot height limit on their use.
For example, Corporate Cleaning said RDS are safer than powered
platforms at all heights below 700 feet because they are more
maneuverable, and allow workers to descend more quickly in an emergency
(Ex. 126).
    Other commenters disputed the argument that the effects of wind on
RDS used above 300 feet are greater than for suspended scaffolding/
powered platforms. Some commenters said there was no difference in the
effects of wind on RDS use than on powered platforms at any height
(Exs. 163; 205). For instance, Ms. McCurley, of SPRAT, said:

    We . . . find that the height restrictions and the wind exposure
to be. . . unfounded. In practical living and in practical working,
we find that all of these things are a matter of skills, knowledge
and good decision-making. If the wind is too high that day, if there
is ice out there that day, you just don't go. And that's true of
whether you are using a scaffold or a powered platform or a ground-
based system or whatever. You just have to

make the right decision based on the gear that you are using (Ex.
329 (1/19/2011, p. 154)).

    Some commenters who opposed the proposed 300-foot RDS height limit
claimed it was ``arbitrary.'' For instance, Mr. Ken Diebolt, of
Vertical Access, said:

    My primary objection is to the 300-foot limit . . . [is] it
seems to us completely arbitrary. I mean, once you're X number of
feet off the ground, once you're 10 feet off the ground, 50 feet,
100 feet, it doesn't really--you're no safer at 300--at 100 feet
than you are at 300 feet or 500 feet if you're doing the work well.
And I wonder where this came from. It comes from the window washing
industry but I have no history of that and I don't know (Ex. 329 (1/
21/2011, p. 138)).

    Mr. Adkins, of Corporate Cleaning, agreed:

    We urge you not to adopt that limitation, especially as it is
written in your proposals. . . . It appears to be an arbitrary limit
and does not, is not based on any kind of empirical research to
determine that there is a problem in fact with the use of ropes in
excess of 300 feet. In fact, I haven't been able to find any
evidence of any accidents or any serious incidents where the length
of the rope had anything to do with it (Ex. 329 (1/19/2011, p.
204)).

    In addition, several commenters disputed there was consensus
supporting the RDS height limit. For example, Mr. Adkins said:

    [T]here is an implication there's a consensus in this industry
supporting the 300-foot rule. I think a lot of testimony we've had
here today makes it clear that that is not the case. Not only do I
not believe it, not only will you hear from other individuals in the
window washing industry who do not support that, you also heard from
people on the other side, Mr. Stager from the Union who doesn't
believe there's been an effective consensus developed on it (Ex. 329
(1/19/2011, pgs. 203-212)).

    However, Mr. Bright, chair of the I-14.1-2001 committee, said there
was ``broad agreement'' among the committee to include a 300-foot RDS
height limit, which is ANSI's definition of ``consensus'' (Ex. 329 (1/
19/2011), pgs. 244-46).
    Commenters opposing the RDS height restriction also said the IWAC
based the I-14.1-2001 requirement more on emotions and economics than
on safety (Ex. 163; 184; 221; 222; 241). The comment of Mr. Sam Terry,
of Sparkling Clean, was representative of those stakeholders:

    It is my contention that the 300' limitation is based more on
the following two issues:
     The emotions of the untrained observer who thinks [RDS]
looks scary
     The financial benefit to the manufacturer, designer,
installer or equipment associated with suspended scaffolding and the
large window cleaning companies who can limit their competition by
restricting the use of the less expensive option of [RDS] (Ex. 163).

    Mr. Adkins agreed:

    Now like I said, those people worked very hard on it, I don't
dispute that, but the I-14 Committee or 50 percent of them were not
window washers. They are from other industries and they are very
honest, hard-working people of integrity but they have legitimate
business interests to look at enforcing a 300-foot limitation or
eliminating it all together and that has to be considered, I am sure
(Ex. 329 (1/19/2011, pgs. 203-212)).

    Mr. Adkins also said that restricting RDS use would lead to
economic hardship for some window cleaning companies and to higher
unemployment (Ex. 329 (1/19/2011, p. 220), but he did not have
knowledge of any companies that experienced economic hardship by
following the I-14.1-2001 height restriction on RDS use. However,
Diamond Window Cleaning said the RDS height limit would give unfair
competitive advantage to larger companies that have, and only use,
powered platforms or systems installed on buildings (Ex. 219). Some
commenters said using RDS is less costly than using powered platforms,
and requiring companies to use powered platforms would be costly (Ex.
219). Mr. Terry explained:

    Of the buildings in my marketplace, the buildings taller than
300 feet typically do not have permanently-installed powered
platforms for access to the exterior of the building. Most of those
buildings were designed and built in the last five years and do not
have permanently installed powered platforms for access to the
exterior of the building (Ex. 163).

    After reviewing the rulemaking record, OSHA has decided to retain
the proposed requirement that employers not use RDS at heights above
300 feet above grade. OSHA continues to believe that using RDS above
300 feet is hazardous, and that adopting the height limit in the final
rule will help protect workers from injury and death.
    OSHA agrees with commenters who said that there are many factors
that contribute to the dangers of operating RDS above 300 feet. First,
as the proposed preamble and commenters discussed, OSHA believes that
using RDS at greater heights increases the potential effects of wind
(e.g., wind gusts, microbursts, tunneling wind currents) on workers.
OSHA believes that, when working at heights over 300 feet, the effects
of wind on the RDS and the worker are greater in general, and greater
than the effects imposed on heavier powered platforms. OSHA notes that
commenters identified incidents in which workers used RDS in windy
weather, and the wind blew the workers around the side of a building
and 30 feet away from a building (Exs. 163; 168). Moreover, while OSHA
agrees that workers can descend more quickly on RDS if severe weather
suddenly occurs, excessively windy weather can buffet workers
descending from above 300 feet, causing them to swing great distances
during the long descent. Most likely in these situations, workers using
RDS will have only intermittent stabilization (i.e., suction cups) so
they can swing by the ropes and hit the building or other structures
and get seriously injured before they reach the ground.
    Second, using RDS above 300 feet requires the use of longer ropes.
OSHA said in the proposed rule, and IWCA (Ex. 138) agreed, that the
greater the length of rope used for descent, the greater the effect of
winds (e.g., wind gusts, microbursts, tunneling wind currents) (see
also Ex. 300). Longer ropes have a greater possibility of getting
tangled or caught on objects, especially in windy (or gusty) weather,
leaving the worker unable to descend or self-rescue. The compilation of
RDS incidents Mr. Terry submitted included cases in which the ropes got
entangled in equipment lines, an antenna, and other workers' RDS lines,
leaving the worker stuck and unable to descend (Ex. 163). These cases
arise because, as Mr. Bright testified, employers often have a number
of workers (e.g., 5 to 6) descending on the same side of a building at
the same time (Ex. 329 (1/19/2011, pgs. 477, 489-490)).
    Third, OSHA agrees with Mr. Lapham, of Valcourt, and Ms. Streeter,
of Vertical Access, who said that longer ropes needed for RDS use above
300 feet are heavier, and moving them can be hazardous (Ex. 147; 329
(1/21/2011, p. 98)). Taken together, OSHA finds convincing the
arguments that workers are at an increased risk of harm when using RDS
over 300 feet, and that the RDS height limit in the final rule is
necessary to protect them.
    OSHA also retained the RDS height limit in the final rule because
the I-14.1-2001 national consensus standard included the same limit.
The American National Standards Institute (ANSI) approved the I-14.1-
2001 standard, and industry widely uses it. OSHA believes the national
consensus standard reflects industry best practices. Commenters,
including some who were members of the I-14.1 committee, said there was
broad agreement to include the 300-foot RDS height limit in the I-14.1
standard (Ex. 147; 329 (1/19/2011, pgs. 210-211, 253, 267-268)).

    Since IWCA issued the I-14.1-2001 standard, several jurisdictions
have adopted the 300-foot RDS height limit. Minnesota (5205.0730,
Subpart 6(A)) and Washington (WAC-296-878-20005) issued regulations
limiting RDS use to 300 feet, while California now limits RDS use to
130 feet (Cal. Code Regs., Tit. 8, Sec.  3286 (2012)). Additionally,
OSHA believes the experience of Canada (Ontario province) deserves
consideration (R.R.O. 1990, Regulation 859). According to Mr. Brian
Gartner, of Weatherguard Service, who was a member of the I-14.1
committee:

    Canada invested much time and money in the establishment of
their code with respect to the height limit of 300 feet. They did
studies, hired consultants, and deliberated at length. Their code
was promulgated due to the high death toll of their window cleaners.
They had one fatality a month before the code was enacted (Ex. 331).

    With regard to commenters' claims that economics was the basis for
supporting or opposing the RDS height limit in I-14.1-2001 (as well as
OSHA's proposed rule), OSHA notes that commenters on both sides of the
issue claimed that the other side was seeking an economic advantage.
Those commenters who supported the RDS height limit said employers were
using RDS above 300 feet to win bids for window cleaning and save money
(Ex. 215). For example, Mr. Gartner noted: ``RDS is the least expensive
method to service a building, saving the building owner money while
allowing for the largest profit margin for a window cleaning
contractor'' (Ex. 331).
    Commenters who opposed the 300-foot RDS height limit said large
window cleaning companies that use powered platforms instead of RDS
were pushing for the height restriction to gain an ``unfair competitive
advantage.'' Those commenters also said that prohibiting the use of RDS
above 300 feet would result in loss of jobs, higher unemployment, and
loss of income because it costs more to use powered platforms.
    During the rulemaking hearing, OSHA asked Mr. Coleman, of JOBS,
whose company only uses powered platforms, why the company did not
support prohibiting the use of RDS since such a prohibition would be in
his company's best economic interests. He replied: ``Because . . . I
understand the reality that it's here. It's going to be used and so I
understand the importance of some regulation that's definite. Nothing
that leaves a loophole, that leaves it up to the people in the field''
(Ex. 329 (1/19/2011, pgs. 315-316)). Moreover, Mr. Coleman said the
company did not lay off any employees or lose business when they
decided in 1985 to only use suspended scaffolding for suspended work
(Ex. 329 (1/19/2011, p. 313)). Mr. Coleman testified that the company
initially lost income because they did not change their prices even
though using suspended scaffolding cost as much as 30 percent more than
RDS use. He further noted that, the company eventually passed the cost
to customers, ``the building owners did not really flinch when they
understood that we were not going to use a device that there was no
OSHA regulation for. They saw their liability rise. So . . . window
cleaning on a building, if you put it on a chart, probably won't even
measure as a measurable cost for most buildings'' (Ex. 329 (1/19/2011,
p. 314)).
    In conclusion, based on analysis of comments and the record as a
whole, OSHA believes there is substantial evidence to support retaining
the 300-foot height limit for RDS use.
    Mr. Adkins, of Corporate Cleaning Services, recommended that OSHA,
instead of prohibiting the use of RDS for heights greater than 300
feet, limit their use based on wind speeds \37\ (Exs. 297; 360). Mr.
Adkins' model assumes that a 25 mph wind speed and 300-foot rope length
``yields a `safe' horizontal displacement,'' which he calculated to be
5 feet (Ex. 297). According to his model, as the RDS rope length
increases, the permissible wind speed decreases. Thus, for example,
under Mr. Adkins' model when the rope length is 700 feet the
permissible wind speed for RDS use would be 15 mph \38\ (Ex. 297).
---------------------------------------------------------------------------

    \37\ Mr. Adkins said the term ``wind speed'' refers to wind
gusts (``[W]hen I talk about wind speed, I talk about a gust'' Ex.
329 (1/19/2010, p. 234)).
    \38\ Mr. Adkins said 9 mph would be a safe wind speed when the
rope is 700 feet if the maximum speed allowed at 300 feet is 15 mph
(Ex. 297).
---------------------------------------------------------------------------

    The rulemaking record, however, does not support Mr. Adkins' model
or recommendation to replace the 300-foot RDS height limit with wind
speed limits. First, according to a study, ``Wind Effects on a Window
Washer Suspended on a Rope,'' a 250-pound window cleaner hanging 75
feet down from a 300 foot building in a steady 25 mph wind would be
displaced/deflected as much as 40 feet, which is far greater than the 5
feet Mr. Adkins' model predicts (Exs. 300; 352). Moreover, changes in
wind speed (i.e., gusts, stops) when window cleaners are deflected
significantly more than 5 feet could cause them to swing back into the
building resulting in death or serious injury. In fact, the study found
that window cleaners can be knocked over by ``moderate wind speeds''
(i.e., approximately 7 mph at 300 feet) and injured hitting buildings
at a speed of 4 mph, both of which are significantly less than wind
speeds Mr. Adkins says would be safe at 300 feet.
    Second, many stakeholders did not support limiting RDS based on
wind gusts instead of height (e.g., Exs. 138; 147; 168; 206; 215; 300),
or that the wind speeds limits Mr. Adkins recommends for RDS use above
300 feet would be safe (Exs. 153; 163; 184; 298; 317; 329 (1/19/2010,
p. 411); 331; 352). Mr. Craig Schoch, of Tractel, Inc., said OSHA
should reject Mr. Adkins' recommendation because his ``safe'' wind
speeds are based on incorrect deflection assumptions (Ex. 352). Other
stakeholders, including window cleaning contractors and members of the
IWCA I-14.1-2001 committee, said wind speeds of 20--25 mph ``are
excessive'' or ``very dangerous,'' regardless of height (Exs. 317; 329
(1/19/2010, p. 411); 331). Several employers said they discontinue
using RDS when wind speeds are between 15--20 mph and stop cleaning
windows before winds reach 15 mph (Exs. 153; 163; 184; 298). Mr. Terry
said 15 mph is a ``reasonable'' speed limit, but added that his company
stops window cleaning before winds reach that speed (Ex. 163). And
although Mr. Adkins recommended the wind speed alternative, he said:

    Now, in actual fact, I've never had anybody work at 15 mph and
never will because that, in my opinion, is too high for . . . a
boatswain's chair, a swingstage, [and] a scaffold (Ex. 329 (1/19/
2010, p. 213)).

    Thus, OSHA does not believe there is sufficient evidence that Mr.
Adkins' wind speed/rope length alternative would adequately protect of
workers using RDS, and the final rule does not adopt that approach.
    Final paragraph (b)(2)(i) includes two exceptions to the 300-foot
height limit for using RDS. Employers may use RDS above 300 feet when
they demonstrate (1) it is not feasible to access heights above 300
feet by any other means; or (2) other means pose a greater hazard than
using RDS. The proposed rule would have allowed employers to use RDS at
any height when the employer can demonstrate that ``access cannot
otherwise be attained safely and practicably,'' which is consistent
with I-14.1-2001.
    OSHA received a number of comments on the proposed exceptions. Some
commenters opposed the proposed exceptions (Exs. 147; 215; 331). For
example, Valcourt said:

    In no case should a window cleaning contractor be allowed to
determine when RDS is acceptable over 300 feet. . . . The
determination that RDS can be utilized on a per case basis on
descents over 300 feet

should be made by a third party qualified person and/or, likely, a
registered professional engineer experienced in facade access
equipment (Ex. 147).

    Mr. Coleman, of JOBS, agreed with Valcourt, stating, ``This is a
safety issue and should not be left up to an individual employer or
employee to make an onsite decision of this nature'' (Ex. 215).
    Mr. Gartner, of Weatherguard, said OSHA's proposed exception
allowing RDS use above 300 feet when employers cannot attain access
``safely and practicably'' was subjective and difficult to enforce (Ex.
329 (1/19/2011, pgs. 255-256)). He said, ``What is practical for me may
not be practical for you and what I deem to be safely is not
necessarily what you consider safely'' (Ex. 331).
    OSHA agrees with the commenters and revised the language in the
final rule to make it consistent with established legal tests and
defenses under the OSH Act.
    Final paragraph (b)(2)(ii) requires employers to ensure RDS use is:
     In accordance with manufacturer instructions, warnings,
and design limitations (hereafter collectively referred to as
``instructions''), or
     Under the direction of a qualified person.
    The final rule (Sec.  1910.21(b)) defines qualified as someone who,
by possession of a recognized degree, certificate, or professional
standing, or who by extensive knowledge, training, and experience has
successfully demonstrated the ability to solve or resolve problems
relating to the subject matter, the work, or the project.
    The I-14.1-2001 standard also requires that employers use RDS in
accordance with manufacturer's instructions. In addition, the standard
specifies that employers follow design requirements in I-14.1-2001
(Section 5.7.1).
    OSHA believes that following manufacturer's instructions is
critical to ensure the safety of workers who use RDS. To illustrate,
manufacturers may design and sell ropes and equipment rated
appropriately for recreational, but not industrial, use. The final rule
requires that employers ensure they use only equipment that the
manufacturer rated for industrial use. Similarly, under the final rule,
employers must ensure that, if they replace elements of one
manufacturer's RDS with the components of another manufacturer's
system, the instructions specify that the components are compatible.
Using incompatible systems or components could endanger the safety of
workers and result in fatal accidents.
    Proposed paragraph (b)(2)(i)), like the 1991 RDS memorandum, would
have required that employers use RDS in accordance with manufacturer or
distributor instructions, and did not include the qualified person
option. In the preamble to the proposed rule, OSHA requested comment
about whether to allow employers to act in accordance with the
instructions of either the manufacturer or a qualified person, as
defined in Sec.  1910.21(b) (75 FR 28886).
    Commenters overwhelmingly supported adding the qualified person
option and removing distributors (Exs. 138; 150; 153; 163; 184; 221;
220; 241; 242; 243; 245). For instance, Martin's said it was
appropriate to allow employers to rely on qualified persons because
they are ``able to solve relevant problems'' (Ex. 222). Mr. Gene
Donaldson, of Sunlight Building Services (Sunlight), also preferred
qualified persons because they ``must have a recognized degree,
certificate, etc., or extensive experience and ability to solve subject
problems, at the worksite'' (Ex. 227). Mr. Lawrence Green, president of
Clean & Polish, said he supported replacing distributors with qualified
persons ``because distributors primarily sell the product to the end
user and are not responsible for the safety, design and training of the
personnel using them'' (Ex. 242).
    OSHA agrees with the commenters and revised final paragraph
(b)(2)(ii) by adding qualified person and deleting distributor. The
Agency believes the revised language in the final rule provides greater
flexibility for employers, while ensuring that RDS use is at the
direction of a person who is qualified.
    Final paragraph (b)(2)(iii), like proposed paragraph (b)(2)(ii) and
the 1991 RDS memorandum, requires employers to ensure that each worker
who uses an RDS receives training in accordance with Sec.  1910.30.
This requirement means that the employer must train each worker who
uses an RDS in the proper rigging, use, inspection, and storage of an
RDS before the worker uses the RDS. In addition, since the final rule
requires that each worker who uses an RDS also uses an independent
personal fall arrest system (Sec.  1910.27(b)(2)(vi)), the employer
must ensure that each worker receives fall hazard training before that
worker uses an RDS in an area where the worker may be exposed to fall
hazards (Sec.  1910.30(a)(1)). As final Sec.  1910.30 specifies, the
fall hazard training must include the nature and recognition of the
fall hazards in the work area; the procedures to follow to minimize the
hazards; the correct procedures for installing, inspecting,
maintaining, disassembling, and operating the fall protection systems
workers will use, such as proper hook-up, anchoring, and tie-off
techniques; and methods of inspection and storage of the equipment the
manufacturer specifies (Sec.  1910.30(a)(1) and (3)). Moreover, to
ensure that the RDS training meets the requirements of Sec.  1910.30,
employers also must provide retraining when they have reason to believe
the workers do not have the understanding and skill needed to use RDS
safely.
    OSHA notes that the final provision is similar to the I-14.1-2001
standard, which requires that employers train workers who use RDS so
they understand the manufacturer's instructions, inspection of
components, accepted rigging practices, identifying anchorages,
descending, fall arrest requirements, rescue considerations, and safe
working conditions (Section 5.7.2).
    OSHA believes that the final provision is necessary. Evidence in
the record indicates that some employers do not train their workers who
use RDS (Ex. 329 (1/19/2011, pgs. 86, 100)). OSHA believes, and
commenters agreed, that workers are able to safely use RDS only if they
are thoroughly knowledgeable in the equipment and its proper use (Exs.
66; 138; 151; 163; 153; 184; 216; 221; 222; 242; 243; 245; 329 (1/19/
2011, pgs. 22-24, 433)). A number of commenters said proper training is
the most important aspect of using RDS safely (Exs. 163; 184; 221; 242;
329 (1/19/2011, p. 252)). Those commenters also said that proper
training would prevent most, if not all, of RDS incidents they
identified (Exs. 163; 184; 221; 242). Similarly, Mr. Capon, of
Valcourt, credited their training program as the reason their company
did not have a fatality during its 25 years of operation (Ex. 329 (1/
19/2011, pgs. 419-420)). Some commenters recommended that OSHA also
require that employers use professional organizations to train and
certify their workers (Exs. 123; 205). The performance-based approach
in the final rule clearly allows employers to use professional
organizations to provide training, and to require that workers receive
certification to operate RDS. However, the performance-based approach
of the final rule gives employers flexibility to determine how to train
their workers, provided the training and the training contents meet the
requirements of Sec.  1910.30. Accordingly, OSHA does not believe it is
necessary to adopt the commenters'

recommendation, and finalizes the provision as discussed.
    Final paragraph (b)(2)(iv), like proposed paragraph (b)(2)(iii),
requires that employers ensure inspection of each RDS at the start of
each workshift in which their workers will use it. Additionally, the
employer must ensure damaged or defective equipment is removed from
service immediately and replaced. The equipment inspection must include
every component of the RDS, including safety devices, ropes, rope
grabs, lanyards, descent devices, harnesses, seat boards, carabiners
and other hardware. When replacing damaged or defective equipment, the
replacement component or system must be compatible, undamaged and not
defective. Overwhelmingly, commenters supported the requirement to
inspect RDS equipment (Exs. 138; 151; 153; 163; 184; 221; 222; 242;
243; 245).
    The final rule revises the proposed paragraph to clarify the
regulatory language. First, OSHA drafted the final provision to specify
that employers must inspect each RDS ``at the start of each workshift
that it is to be used'' rather than ``each day before use'' as in the
proposed rule. Therefore, the final rule specifies that employers must
inspect each RDS before a worker uses it in their workday. Thus, to the
extent that there is more than one workshift in a work day, the RDS
needs to be inspected to ensure it is safe for each worker to use
during their workshift. The inspection of RDS equipment at the start of
each workshift ensures that any damage (such as abrasions and cracks)
that may have occurred when using the RDS during the last workshift is
identified, and appropriate action is taken before another worker uses
the RDS. In addition, employers need only inspect an RDS if a worker
will use it during a workshift, rather than each day. The language in
the final rule clarifies this requirement.
    Second, the final rule requires that employers remove both damaged
and ``defective'' equipment from service, while the proposed rule only
specified removal of damaged equipment. OSHA added ``defective''
because, regardless of whether an inspection reveals that equipment was
damaged during use or defectively manufactured, OSHA considers such
equipment to be unsuitable for continued use.
    Third, OSHA added language to the final rule specifying that
employers remove damaged or defective equipment from service
``immediately.'' This addition is consistent with the I-14.1-2001
standard (Section 5.7.3).
    Finally, the final rule revises the proposed rule to specify that
employers must replace damaged or defective equipment removed from
service. OSHA believes this language clarifies that improvised repairs
are not allowed, consistent with I-14.1-2001 (Section 5.7.3). Replacing
damaged or defective components is necessary to ensure that RDS are
restored to their original condition and capacity. For these reasons,
OSHA adopts the final provision as discussed.
    Final paragraph (b)(2)(v), like proposed paragraph (b)(2)(iv) and
the 1991 RDS memorandum, requires that employers ensure the RDS has
proper rigging, including proper anchorages and tiebacks. The final
rule also requires that employers ensure that RDS rigging emphasizes
providing tiebacks when using counterweights, cornice hooks, or similar
non-permanent anchorage. The I-14.1 standard addresses proper rigging
by requiring that employers train workers in ``correct'' and
``accepted'' rigging practices (Section 5.7.2).
    Proper rigging of RDS equipment is essential to ensure that the
system is safe for workers to use. To ensure proper RDS rigging and
safe use, OSHA believes that employers also must take into
consideration and emphasize the specific conditions present. For
example, OSHA believes that giving particular emphasis to providing
tiebacks when using counterweights, cornice hooks, or similar non-
permanent anchorages is an essential aspect of proper rigging and
necessary to ensure safe work. To illustrate, when tiebacks and
anchorages are not perpendicular to the building face, it may be
necessary for worker safety for employers to install opposing tiebacks
to support and firmly secure the RDS, have at least a 30-degree sag
angle for opposing tiebacks, or ensure that no angle exists on single
tiebacks. In addition, as the final rule specifies, OSHA believes that
employers also must place emphasis on non-permanent anchorages because
of the possibility of damage during transport and installation.
    Finally, some commenters recommended that OSHA include additional
rigging requirements in the final rule. For example, Vannoy &
Associates recommended that OSHA include a requirement for angle of
attachment (Ex. 213). OSHA believes that the term ``proper rigging''
includes the angle of attachment and, therefore, needs no further
elaboration. For the reasons discussed above, OSHA adopts the provision
as discussed.
    Final paragraph (b)(2)(vi), like proposed paragraph (b)(2)(v) and
the 1991 RDS memorandum, requires that each worker uses a separate,
independent personal fall arrest system, when using an RDS. Final Sec.
1910.140(b) defines personal fall arrest system as ``a system used to
arrest an employee in a fall from a walking-working surface.'' A
personal fall arrest system consists of at least an anchorage,
connector, and a body harness, but also may include a lanyard,
deceleration device, lifeline, or suitable combination of these devices
(Sec.  1910.140(b)). The final rule requires that the personal fall
arrest system meets the requirements in 29 CFR part 1910, subpart I,
particularly final Sec.  1910.140. This final rule is consistent with
other existing OSHA standards (e.g., Sec.  1910.66(j), Powered
Platforms for Building Maintenance, Personal Fall Protection; Sec.
1926.451(g), Scaffolds, Fall Protection), as well as the I-14.1
consensus standard (Section 5.7.6).
    OSHA believes the provision is essential to protect workers from
injury or death if a fall occurs. As the 1991 RDS memorandum mentions,
requiring workers to use personal fall arrest systems that are
completely independent of RDS ensures that any failure of the RDS
(e.g., main friction device, seat board, support line, anchorage) does
not affect the ability of the fall arrest system to quickly stop the
worker from falling to a lower level.
    Commenters uniformly supported the proposed provision (Exs. 138;
151; 153; 184; 221; 222; 242; 243). Also, Surface Solutions pointed out
that 91 of 125 RDS incidents they reviewed as far back at 1977 resulted
from the lack of an independent personal fall arrest system (Ex. 184).
OSHA finds the comments and data persuasive and, therefore, adopts the
requirement as proposed with only minor editorial change, for clarity.
    Final paragraph (b)(2)(vii) requires that employers ensure all
components of each RDS, except seat boards, are capable of supporting a
minimum rated load of 5,000 pounds. For seat boards, the final rule
requires that they be capable of sustaining a live load of 300 pounds.
In accordance with section 6(b)(8) of the OSH Act (29 U.S.C.
655(b)(8)), OSHA revised the final provision in three ways to make it
consistent with the I-14.1-2001 national consensus standard.
    First, the final rule revised the proposal (proposed paragraph
(b)(2)(vi)) to require that employers ensure ``all components'' of each
RDS, except seat boards, are capable of supporting a 5,000-pound
minimum rated load. As the final definition of RDS specifies, these
systems usually consist of the following components: Roof anchorage,
support rope, descent device, carabiner(s) or shackle(s), and chair

(seat board) (final Sec.  1910.21(b)).\39\ I-14.1-2001 (Section 14.1.2)
also requires that each RDS must include the same list of components.
The proposed rule (proposed paragraph (b)(2)(vi)) and 1991 RDS
Memorandum, by contrast, only required that ``all lines'' be capable of
sustaining the required load, but was silent on the minimum load
requirements for other RDS components.
---------------------------------------------------------------------------

    \39\ OSHA notes that RDS often include tiebacks, but they are
not a required component of RDS.
---------------------------------------------------------------------------

    However, like I-14.1-2001, OSHA believes that requiring all RDS
components, except seat boards, be capable of supporting the required
minimum rated load is essential to ensure that these systems are safe
for workers to use. It makes no difference if RDS lines and ropes are
capable of supporting the minimum 5,000-pound required load if RDS
connectors, anchorages, and other components cannot sustain such a
load. In other words, all components must be able to support the
required load because RDS are only as strong as their weakest
component. Thus, applying the final load requirement to all RDS
components will ensure that none of the critical components will break
or fail when supporting a significant load. OSHA notes that commenters
overwhelmingly support the minimum 5,000 load requirement as essential
to ensure RDS are safe to use (Exs. 138; 151; 153; 184; 221; 222; 242;
243).
    Second, in final paragraph (b)(2)(vii), consistent with I-14.1-2001
(Section 14.1.4), OSHA does not apply the 5,000-pound rated load
requirement to seat boards. Instead, OSHA incorporates language from I-
14.1-2001 (Section 14.3.1(c)) specifying that seat boards must be
capable of supporting a live load of at least 300 pounds. I-14.1-2001
(Section 14.3.1(a)) specifies that seat boards must be made of ``wood
or other suitable material,'' which cannot and does not need to support
a rated load of 5,000 pounds. OSHA notes that final paragraph
(b)(2)(vi), as mentioned, requires that employers ensure each employee
who uses an RDS also uses a ``separate, independent personal fall
arrest system'' that meets the requirements in final Sec.  1910.140.
    Third, the final rule, consistent with I-14.1-2001 (Section
14.1.4), revises the proposed rule to require that RDS components be
capable of sustaining a minimum ``rated load'' of 5,000 pounds. The
proposed rule specified that RDS lines be able to sustain a minimum
``tensile load'' of 5,000 pounds. OSHA believes that ``rated load'' or
``rated strength'' is the appropriate term to specify the ability of
all RDS components to support a load and is consistent with the I-14.1-
2001 standard. I-14.1-2001 (Section 2) broadly defines ``rated load''
as ``the combined weight of the [workers], tools, equipment, and other
materials which the device is designed and installed to lift.'' Tensile
load, on the other hand, is the maximum stress that material can
withstand while being stretched before breaking or failing. While the
term is appropriate to use for identifying the required strength of
ropes or lines, it is not a standard measure for components that do not
stretch.
    OSHA notes that the final rule does not preclude the use of lines
or ropes that have a knot, swage, or eye splice, which could reduce the
tensile strength of a rope or line. However, under final paragraph
(b)(2)(vii), even if an employer uses a line or rope that has a knot,
swage, or eye split, the rope or line still must be capable of
supporting a minimum rated load of 5,000 pounds. Several commenters
supported this interpretation of the final paragraph (b)(2)(vii).
    In conclusion, OSHA believes that employers should not have
difficulty complying with the final paragraph (b)(2)(vii) as revised.
Virtually all RDS manufactured today meet the design requirements in I-
14.1-2001 (Section 14) (See e.g., Ex. 242). In addition, I-14.1-2001
represents standard industry practice, thus, OSHA believes that the
revisions to final paragraph (b)(2)(vii) will make the final rule
easier to understand and reduce potential for confusion.
    Final paragraph (b)(2)(viii), like proposed paragraph (b)(2)(vii),
requires that employers provide for prompt rescue of each worker in the
event of a fall. The final rule is almost the same as the 1991 RDS
memorandum and Sec.  1910.140(c)(21), and generally consistent with the
I-14.1 standard (Section 5.7.11).
    Like Sec.  1910.140(c)(21), final paragraph (b)(2)(viii)
establishes two fundamental points--(1) employers must provide for the
rescue of workers when a fall occurs, and (2) the rescue must be
prompt. First, providing for rescue means employers need to develop and
put in place a plan or procedures for effective rescue. The plan needs
to include making rescue resources available (i.e., rescue equipment,
personnel) and ensuring that workers understand the plan.
    Appendix C to Sec.  1910.140 provides guidance to employers on
developing a rescue plan (appendix C, Section (h)). For example,
appendix C recommends that employers evaluate the availability of
rescue personnel, ladders, and other rescue equipment, such as
mechanical devices with descent capability that allow for self-rescue
and devices that allow suspended workers to maintain circulation in
their legs while they are awaiting rescue. OSHA's Safety and Health
Information Bulletin on Suspension Trauma/Orthostatic Intolerance
identifies factors that employers should consider in developing and
implementing a rescue plan, including being aware of signs and symptoms
of suspension trauma and factors that can increase the risk of such
trauma, rescuing unconscious workers, monitoring suspended and rescued
workers, and providing first aid for workers showing signs and symptoms
of orthostatic intolerance (SHIB 03-24-2004).\40\
---------------------------------------------------------------------------

    \40\ SHIB 03-24-2006 is available from OSHA's Web site at:
http://www.osha.gov/dts/shib/shib032404.html.
---------------------------------------------------------------------------

    Although an increasing number of employers train workers and
provide devices that allow workers to rescue themselves (Exs. 227;
242), the employer's rescue plan still needs to make provisions for
appropriate rescue personnel and equipment because self-rescue may not
be possible in some situations. For example, unconscious workers will
not be able to move and, therefore, cannot pump their legs to maintain
circulation or relieve pressure on the leg muscles. The same may be
true for seriously injured workers or workers who are in shock. When
RDS ropes get caught on structures or entangled, workers may not be
able to self-rescue (see analysis of RDS and suspended scaffolding
incidents in Ex. 163).
    Second, the final rule requires that employers provide ``prompt''
rescue of workers suspended after a fall. Sunlight Building Services
commented that ``prompt'' is ambiguous, and asked whether OSHA defines
it to mean ``immediately'' or ``quickly'' (Ex. 227). The International
Safety Equipment Association (ISEA) and Capital Safety Group (CSG)
urged OSHA to require that rescue of suspended workers occur
``quickly,'' pointing out the life-threatening dangers of suspension
trauma/orthostatic intolerance (Exs. 185; 198).
    OSHA agrees with ISEA and CSG. OSHA's definition of ``quick'' or
``prompt'' is performance-based. Prompt means that employers must act
quickly enough to ensure that the rescue is effective; that is, to
ensure that the worker is not seriously injured. If the worker is
injured in the fall, the employer must act quickly enough to

mitigate the severity of the injury and increase the survivability of
the worker. OSHA's performance-based definition has consistently
recognized, and taken into account, life-threatening injuries and
dangers (Ex. 22; see also 76 FR 24576 (5/2/2011); Letter to Charles
Brogan, January 16, 2007; Letter to Brian F. Bisland (March 23, 2007)).
For example, OSHA's Safety and Health Information Bulletin (SHIB) on
orthostatic intolerance explains:

    Orthostatic intolerance may be experienced by workers using fall
arrest systems. Following a fall, a worker may remain suspended in a
harness. The sustained immobility may lead to a state of
unconsciousness. Depending on the length of time the suspended
worker is unconscious/immobile and the level of venous pooling, the
resulting orthostatic intolerance may lead to death. . . . Unless
the worker is rescued promptly using established safe procedures,