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SUMMARY: OSHA is reopening the rulemaking record on the proposed revisions to Walking and Working Surfaces and Personal Protective Equipment (Fall Protection Systems) to gather data and information concerning advances in technology and industry practice and updated consensus standards issued since the proposals were published. OSHA also is seeking comments from interested persons on specific issues concerning each proposal. The Agency will be publishing, in the future, a revised economic analysis (containing a revised regulatory flexibility analysis if necessary) for public comment. After OSHA analyzes the record from the two reopenings, the Agency will determine what other steps, if any, are necessary to finalize the rulemakings on subparts D and I.OSHA has included the regulatory text and appendices from the 1990 proposed rule as an appendix to this limited reopening notice. This appendix may serve as an aid for stakeholders who respond to questions in this limited reopening regarding issues referencing the 1990 proposed rule.DATES: Written comments must be submitted by the following dates:Hard copy: Your comments must be submitted (postmarked or sent) by July 31, 2003.Facsimile and electronic transmissions: Your comments must be sent by July 31, 2003.ADDRESSES: Regular mail, express delivery, hand-delivery and messenger service: You must submit three copies of your comments and attachments to the OSHA Docket Office, Docket No. S-029, Room N-2625, U.S. Department of Labor, 200 Constitution Avenue, NW., Washington, DC 20210; telephone (202) 693-2350 (OSHA's TTY number is (877) 889-5627). OSHA Docket Office and Department of Labor hours of operation are 8:15 a.m. to 4:45 p.m., EST.Facsimile: If your comments, including any attachments, are 10 pages or fewer, you may fax them to the OSHA Docket Office at (202) 693-1648. You must include the docket number of this notice, Docket No. S-029, in your comments.Electronic: You may submit comments but not attachments through the Internet at (See the SUPPLEMENTARY INFORMATION section below for additional information on submitting comments.)FOR FURTHER INFORMATION CONTACT: General and technical information -- Mr. Terence Smith, OSHA, Directorate of Standards and Guidance, Room N-3609, U.S. Department of Labor, 200 Constitution Avenue, NW., Washington DC 20210; telephone (202) 693-2222.For additional copies of this Federal Register notice, contact OSHA, Office of Publications, Room N-3101, U.S. Department of Labor, 200 Constitution Avenue, NW., Washington, DC 20210; telephone (202) 693-1888. Electronic copies of this Federal Register notice, as well as news releases and other relevant documents, are available at OSHA's Web page on the Internet at SUPPLEMENTARY INFORMATION:Table of ContentsI. Submission of Comments on This Notice and Internet Access to Comments and SubmissionsII. BackgroundIII. Need for Revisions to Subparts D and IIV. Request for Comments, Data and InformationA. Subpart D1. Rolling Stock and self-propelled, motorized mobile equipment2. Qualified Climbers3. Rung Width for Fixed Ladders4. Hierarchy of Fall Protection Controls5. Scaffolds and Controlled Descent Devices6. Anchors for Suspended WorkB. Subpart I -- Personal Protective Equipment for Fall Protection1. General Fall Protection Requirement2. Body Belts for Fall Arrest3. Additional Proposed Amendments of General Industry StandardsC. Other Issues1. New and Updated National Consensus Standards2. Incorporation of Other Rulemaking DocketsD. Updating Economic Analysis and Impact on Small BusinessesV. Authority and SignatureI. Submission of Comments on This Notice and Internet Access to Comments and SubmissionsYou may submit comments in response to this document by (1) hard copy, or (2) FAX transmission (facsimile), or (3) electronically through the OSHA Webpage. Please note that you cannot attach materials, such as studies or journal articles, to electronic comments. If you wish to submit additional materials, you must submit three hard copies of them to the OSHA Docket Office at the address above. The additional materials must clearly identify your electronic comments by name, date, subject and docket number so we can attach them to your comments.Because of security-related problems there may be a significant delay in the receipt of comments by regular mail. Please contact the OSHA Docket Office at (202) 693-2350 (TTY (877) 889-5627) for information about security procedures concerning the delivery of materials by express delivery, hand delivery and messenger service.All comments and submissions will be available for inspection and copying at the OSHA Docket Office at the address above. Comments and submissions posted on OSHA's Webpage are available at OSHA cautions you about submitting personal information such as social security numbers and birth dates. Contact the OSHA Docket Office at (202) 693-2350 ( TTY (877) 889-5627) for information about materials not available through the OSHA Webpage and for assistance in using the Webpage to locate docket submissions.II. BackgroundSubpart D of 29 CFR part 1910, Walking and Working Surfaces, sets forth general industry requirements for employers to protect employees from slips, trips and falls that may cause serious or fatal injuries. Subpart I of 29 CFR part 1910, Personal Protective Equipment, contains general requirements covering the use and maintenance of personal protective equipment (PPE), as well as specific provisions on the use, design and performance requirements for various types of PPE such as eye, face, head and respiratory protection.The standards currently in subparts D and I were part of the initial package of standards OSHA promulgated in 1971 under section 6(a) of the Occupational Safety and Health Act of 1970 (the Act) (29 U.S.C. 655). Section 6(a) directed the Secretary, within two years of the effective date of the Act, to adopt as OSHA safety and health standards any national consensus standards, and established Federal standards that were issued under other statutes.Soon after OSHA adopted subpart D, the Agency initiated efforts to revise the standard. In September 1973, OSHA published a proposed revision of subpart D in the Federal Register (38 FR 24300, September 6, 1973). In April 1976, however, OSHA withdrew the 1973 proposal (41 FR 17227, April 23, 1976) because, in the Agency's view, it had become outdated and did not reflect current industry practices. Concurrently, OSHA published a notice requesting further information from interested parties about revising Subpart D (41 FR 17102, April 23, 1976). OSHA also conducted several informal public meetings to allow interested parties to present their views on issues related to subpart D. Based on the comments submitted in response to the notice and the public meetings, OSHA determined that a more thorough scientific and technical research effort was necessary to obtain objective information needed to develop a revised subpart D. Thereafter, OSHA accumulated a wide variety of technical information and studies from sources such as the National Bureau of Standards (now the National Institute of Standards and Technology) and the American National Standards Institute, which the Agency used to develop the proposed revisions to subparts D and I.On April 10, 1990, OSHA published proposals for revising the standards for subparts D (55 FR 13360) and I (55 FR 13423). The two proposals were published together because of the interdependent nature of the hazards and working conditions they address. Proposed subpart D included, among other things, revised provisions for the use of personal fall protection systems while proposed subpart I added specific design and performance criteria that various personal fall protection systems, such as body belts and harnesses, would have to meet. OSHA received 788 comments on proposed subpart D and 56 on proposed subpart I during the comment period, including several requests for an informal public hearing.On July 18, 1990, OSHA extended the comment period for written comments on the proposed standards until August 22, 1990, and scheduled an informal public hearing (55 FR 29224).The informal public hearing was held on September 11-14, and 17-18, 1990, in Washington, DC. Fifty-one parties presented testimony, and fifty-nine post-hearing comments were received through December 1990.The record was closed and certified on April 20, 1992.A. Proposed Revisions of Subpart DThe proposed rule for subpart D updated many requirements in the existing standards and proposed changes to consolidate and simplify requirements and to eliminate ambiguities and redundancies. OSHA also proposed to add a number of provisions that were not addressed in the existing standards. For example, the proposal would have added provisions allowing employers to use alternative means to protect employees from fall hazards (e.g., designated areas, personal fall protection equipment, safety nets) when guardrails and physical barriers are not feasible. The proposal also added provisions addressing walking and working surfaces such as step bolts, manhole steps and industrial truck platforms. In addition, OSHA proposed that the revised requirements would apply only prospectively, that is, the proposal would allow workplaces and equipment meeting existing subpart D requirements to be "grandfathered in" and limited application of the revised requirements to new installations and renovations.B. Proposed Revisions of Subpart IAs noted above, subpart I contains general requirements to provide PPE as well as use, design and performance requirements for various types of PPE. Subpart I, however, currently does not contain specific design or performance requirements for personal fall protection systems.OSHA proposed to add provisions to subpart I specifying the strength and performance requirements that all personal fall protection systems would have to meet whenever their use was required by a part 1910 standard. The proposal included design and performance criteria for several types of personal fall protection systems, including lifelines, lanyards, body belts and harnesses, work positioning systems (called "positioning device systems" in 1926 subpart M, Fall Protection in the Construction Industry), travel restricting systems and climbing device systems. In addition, OSHA proposed to add a non- mandatory appendix (Appendix C) to provide a number of test methods and procedures that employers and manufacturers could use to determine whether their systems were in compliance with the proposed design and performance requirements for fall protection systems. The primary purpose of the design criteria and test methods was to ensure that employers would use fall protection systems that are strong enough to provide the necessary fall protection, but that do not stop falls with a level of force that could exceed human injury tolerance and injure employees.Other OSHA standards covering specific types of workplaces and equipment in general industry currently include provisions that require employers to provide personal fall protection systems (e.g. 1910.66, Powered platforms for building maintenance; 1910.67, Vehicle-mounted elevated and rotating work platforms; 1910.261, Pulp, paper and paperboard mills; 1910.268, Telecommunications). However, only 1910.66 of the above standards includes requirements on the design and performance criteria for personal fall protection systems. The criteria in 1910.66 only apply to personal fall protection systems required within that standard.Two standards do contain criteria for fall protection equipment. The fall protection standards for the construction industry (subpart M of 29 CFR part 1926), finalized in 1994 (59 FR 40672, August 9, 1994), and the personal fall protection requirements for shipyard employment (29 CFR 1915.159), issued in 1996 (61 FR 26322, May 24, 1996), have design and performance criteria that are similar to those in proposed subpart I. OSHA also notes that both of these standards prohibit the use of body belts for fall arrest. OSHA will also review comments and information received in those rulemakings in determining how to proceed with the rulemakings on Walking and Working Surfaces and Personal Protective Equipment (Fall Protection Systems).III. Need for Revisions to Subparts D and IA review of the information, data and comments in the rulemaking record for subparts D and I as well as information OSHA has received since then, indicate that OSHA does need to revise the requirements in these subparts to address the significant hazards of slips, trips and falls to employees in general industry. Data in the record, as well as data received since the record closed in 1992, show that a significant number of accidents and fatalities in general industry are caused by slip, trip and fall hazards. For example, a 1982 study by the Bureau of Labor Statistics (BLS) showed that during a four-month period 938 employees were injured when they fell on stairs (Docket S-041; Ex. 2- 37). The study was based on a review of workers' compensation data from 24 states. OSHA believes that the injury total would have been significantly higher had data from all the states been included in the study. In 1984 and 1985, BLS reported that more than 300 workers died in fall-related accidents, which represented nine percent of all workplace deaths (Docket S-041; Ex. 2-19).More recent publicly available data also confirm the need for revising subparts D and I. BLS data for 1999 show that employee falls resulted in 721 fatalities and 297,499 injuries involving lost workdays, and a fatality rate of 0.08 per 10,000 employees. BLS data for 2000 shows a slight increase in employee fall fatalities (734), also with a fatality rate of 0.08 per 10,000 employees. This represents a slight increase from the 1992 fatality rate of 0.06 derived from BLS data. A 2002 study by the Liberty Mutual Insurance Company found that falls to a lower level were the fourth leading cause of all workplace injuries, accounting for 9.2% of all workplace injuries and $3.7 billion in direct costs annually (Docket S-029; Ex. 1-17).OSHA believes that revising the standards for subpart D and adding design and performance requirements for personal fall protection equipment in subpart I will substantially reduce the number of fatalities and injuries resulting from slip, trip and fall hazards.IV. Request for Comments, Data and InformationSince publication of the proposed revisions to subparts D and I, many of the resource documents OSHA used to develop the proposed rules have been updated and industry practices and equipment design and performance have improved. OSHA believes that incorporating information and data about these changes and improvements into the revisions of subparts D and I will make the revised subparts more effective in protecting employees from the hazards of slips, trip and falls. Therefore, OSHA is reopening the rulemaking record to add this information and provide the public with an opportunity to review and comment on it.At the same time, OSHA invites comment on a range of specific issues that are related to the proposed revisions. OSHA is particularly interested in receiving comments on the questions listed below. OSHA will carefully review and evaluate data, information and comments received in response to this notice in revising proposed subparts D and I.As previously discussed, OSHA is using this limited reopening to supplement and update the existing rulemaking record for subparts D and I. There is a substantial public record on the proposed standards, including comments, public hearing proceedings, and post-hearing comments. This limited reopening will allow the public to update the record on a few key issues in the proposed rules, as well as to provide input for a revised economic analysis. When this revised analysis is completed, OSHA will reopen the record again to allow the public to comment on the revised analysis and the issues raised by proposed subparts D and I in light of the revised analysis. After that public comment period, OSHA will determine if any other steps are necessary, including issuance of a revised NPRM, before the Agency moves ahead with a final rule for these proposals.To facilitate stakeholders responding to questions in this limited reopening regarding issues referencing the 1990 proposed rule, the regulatory text and appendices as proposed in 1990 have been included as an appendix to this reopening document.A. Subpart D1. Rolling Stock and Self Propelled, Motorized Mobile EquipmentOSHA is requesting additional comment on whether rolling stock and self-propelled, motorized mobile equipment should be covered or excluded from subpart D. Self-propelled, motorized mobile equipment includes tractor trailer trucks, tank trucks, hopper trucks and buses while rolling stock includes covered and uncovered rail cars, hopper cars, tank cars, and trailers.Existing subpart D does not exclude such equipment from coverage and OSHA has issued citations for self-propelled, motorized mobile equipment under this subpart. In the proposed revision of subpart D, however, OSHA proposed to exclude surfaces that were an integral part of "self-propelled, motorized mobile equipment" other than platforms lifted by powered industrial trucks ( 1910.21(a)(1), 55 FR 13396). In the preamble, OSHA said that employee exposure to these types of surfaces was usually brief and sporadic, such as performing periodic maintenance. In addition, there was concern that the surfaces did not contain anchorage points for attaching fall protection equipment.The preamble also included examples of equipment that OSHA intended to exclude from coverage, but did not specify whether rolling stock were included in those examples (55 FR 13365). OSHA received comments saying that all rolling stock should be excluded from coverage (Docket S-041; Ex. 3-46).An OSHA memorandum issued to its Regional Administrators on October 18, 1996, interpreted the proposal as excluding rolling stock from subpart D (Docket S-029; Ex. 1-16-2). In anticipation of a final revised rule, the memorandum directed OSHA inspectors not to cite rolling stock under subpart D. The memorandum also said it would not be appropriate to use the PPE standard (29 CFR 1910.132 (d)) to cite employee exposure to fall hazards on the tops of rolling stock, unless the rolling stock was positioned inside of or contiguous to a building or other structure where the installation of fall protection is feasible. The Agency is asking for additional comment on the following issues that relate to the appropriate scope of subpart D:1. In your establishment and/or industry, how many or what percentage of employees working on top of rolling stock and/or self-propelled, motorized mobile equipment are exposed to fall hazards? How are these employees protected from fall hazards while working on such equipment? If fall protection equipment is used, please provide detailed information on the types and costs of the fall protection used on mobile equipment and please explain how it is used. If fall protection equipment is not used, please explain what technological and/or economic obstacles may be involved. Are there alternative means to protect employees from fall hazards while working on mobile equipment, including rolling stock? Please explain.2. What is your safety experience with fall hazards on rolling stock and self-propelled, motorized mobile equipment?3. Should OSHA exclude rolling stock and self-propelled motorized mobile equipment from coverage under subpart D? Please explain and provide data and information to support your comments.2. Qualified ClimbersOSHA proposed to add a provision to subpart D that would allow employers to use "qualified climbers," in certain limited situations, to climb fixed ladders that are not equipped with fall protection devices (i.e., cages, wells or ladder safety devices) ( 1910.23(a)(2), 55 FR 13398). The proposed provision would be an alternative to the existing subpart D requirement that fixed ladders more than 20 feet (6.1 m) high be equipped with such fall protection devices ( 1910.27(d)). The proposed provision would allow qualified climbers to climb a ladder without fall protection, provided that (1) the employer shows that the process of installing ladder safety devices, cages or wells on the fixed ladder would pose a greater hazard, and (2) the fixed ladder is climbed no more than twice per year ( 1910.23(a)(2), 55 FR 13398). Once qualified climbers reach their work location, however, they must use fall protection.In the proposal, OSHA defined as a qualified climber as "[a]n employee who, by virtue of physical capabilities, training, work experience and job assignment, is authorized by the employer to routinely climb fixed ladders, step bolts or similar climbing devices attached to structures" ( 1910.21(b), 55 FR 13397).OSHA recognizes that accidents involving ladders account for a significant number of workplace injuries and deaths. Indeed, OSHA estimated in its preliminary economic analysis that annually more than 10 percent of work surface injuries (11,025 injuries) and 19 percent of work surface deaths (25 deaths) involved ladders (55 FR 13390). Nonetheless, OSHA proposed the qualified climber alternative, in part, because the Agency believed that hundreds of thousands of fixed ladders were not equipped with the devices subpart D requires and were being climbed without fall protection of any kind. In the proposal, the Agency estimated that the cost of retrofitting all of these ladders to comply with subpart D could exceed $1.5 billion (55 FR 13360).OSHA also proposed the qualified climber concept because the Agency believed that the process of installing, inspecting and maintaining cages, wells or ladder safety devices could, in some cases, substantially increase the period of employee exposure to fall hazards, as compared to the amount of time that qualified climbers would spend actually climbing ladders that did not have such devices.OSHA is seeking comment on several issues concerning qualified climbers:

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