[Federal Register: January 18, 2006 (Volume 71, Number 11)][Rules and Regulations] [Page 2879-2885]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr18ja06-5]
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DEPARTMENT OF LABOR
Occupational Safety and Health Administration
29 CFR Part 1926
RIN 1218-AC14
[Docket No. S-775 A]
Steel Erection; Slip Resistance of Skeletal Structural Steel
AGENCY: Occupational Safety and Health Administration (OSHA), Labor.
ACTION: Final rule.
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SUMMARY: This document revokes a provision within the Steel Erection
Standard which addresses slip resistance of skeletal structural steel.
The Agency received comments that suggest there has been no significant
progress regarding the suitability of the test methods referenced in
the provision for testing slip resistance or the availability of
coatings that would meet the slip resistant requirements of the
provision. Most significantly, there is a high probability that the
test methods will not be validated through statements of precision and
bias by the effective date and that ASTM, an industry standards
association, is likely to withdraw them shortly thereafter. As a result
employers will be unable to comply with the provision. Therefore, the
Agency has decided to revoke it.
DATES: This final rule is effective January 18, 2006.
ADDRESSES: In compliance with 28 U.S.C. 2112(a), OSHA designates the
Associate Solicitor for Occupational Safety and Health, Office of the
Solicitor, Room S-4004, U.S. Department of Labor, 200 Constitution
Avenue, NW., Washington, DC 20210, telephone (202) 693-5445, as the
recipient of petitions for review of the final standard.
FOR FURTHER INFORMATION CONTACT: For general information and press
inquiries, contact Kevin Ropp, OSHA Office of Communications, Room N-
3647, OSHA, U.S. Department of Labor, 200 Constitution Avenue, NW.,
Washington, DC 20210; telephone (202) 693-1999. For technical
inquiries, contact Tressi Cordaro, Office of Construction Standards and
Guidance, Directorate of Construction, Room N-3468, OSHA, U.S.
Department of Labor, 200 Constitution Avenue, NW., Washington, DC
20210; telephone (202) 693-2020.
For additional copies of this notice, contact OSHA's Office of
Publications, U.S. Department of Labor, Room N-3101, 200 Constitution
Avenue, NW., Washington, DC 20210; telephone (202) 693-1888. Electronic
copies of this notice, as well as news releases and other relevant
documents, are available on OSHA's Web site at http://www.osha.gov.
SUPPLEMENTARY INFORMATION: References: References to documents and
materials are found throughout this Federal Register document.
Materials in the docket of this rulemaking are identified by their
exhibit numbers, as follows: ``Exhibit 2-1'' means exhibit number 2-1
and ``Exhibit 2-1-1'' means number exhibit 2-1, attachment 1 in Docket
S-775A. A list of exhibits is available in the OSHA Docket Office, 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), and on OSHA's Web site at http://www.osha.gov.
References to the Code of Federal Regulations are identified as
follows: ``29 CFR 1926.750'' means chapter 29 of the Code of Federal
Regulations, section 750 of part 1926.
I. Background
On January 18, 2001, OSHA published a new construction standard for
steel erection work, 29 Code of Federal Regulation Subpart R (Sections
1926.750 through 1926.761 and Appendices A through H) (``2001 final
rule'') (66 FR 5196). It was developed through negotiated rulemaking,
together with notice and comment under section 6(b) of the Occupational
Safety and Health Act of 1970 (OSH Act) (29 U.S.C. 655) and section 107
of the Contract Work Hours and Safety Standards Act (Construction
Safety Act) (40 U.S.C. 3704). In the course of that rulemaking, OSHA
received evidence that workers were slipping and falling when working
on painted or coated structural steel surfaces that were wet from rain
or condensation. The Agency decided that requiring such coatings to be
slip-resistant would help to address the falling hazard. During the
rulemaking, OSHA received evidence both in support of and in opposition
to the technical feasibility of such a requirement.
The relevant provisions of the 2001 final rule are 29 CFR
1926.754(c)(3) and appendix B of subpart R of part 1926. Paragraph
(c)(3) of Sec. 1926.754 establishes a slip-resistance requirement for
the painted and coated top walking surface of any structural steel
member installed after July 18, 2006.
Appendix B to subpart R is entitled ``Acceptable Test Methods for
Testing Slip-Resistance of Walking/Working Surfaces (Sec.
1926.754(c)(3)). Non-Mandatory Guidelines for Complying with Sec.
1926.754(c)(3).'' The Appendix lists two acceptable test methods:
Standard Test Method for Using a Portable Inclineable Articulated Strut
Slip Tester (PIAST) (ASTM F1677-96); and Standard Test Method for Using
a Variable Incidence Tribometer (VIT) (ASTM F1679-96).
The crux of the slip resistance requirement in Sec. 1926.754(c)(3)
is that the coating used on the structural steel walking surface must
have achieved a minimum average slip resistance of 0.50 (when wet) when
measured by an English XL tribometer or by another test device's
equivalent value, using an appropriate ASTM standard test method. In
the preamble to the final rule, OSHA noted that the two ASTM standard
test methods listed in Appendix B (ASTM F1677-96 and ASTM F1679-96) had
not yet been validated through statements of precision and bias. (A
precision and bias statement is documentation that the test method, in
laboratory tests, has been shown to have an acceptable degree of
repeatability and reproducibility). In addition, representatives of the
coatings industry indicated that it would take time to develop new
coatings to meet the requirement. For these reasons, the Agency delayed
the provision's effective date until July 18, 2006, because the
evidence in the record indicated that it was reasonable to expect these
developments to be completed by that date (66 FR 5216-5218).
The slip-resistance provision was challenged in the U. S. Court of
Appeals for the D.C. Circuit by the Steel Coalition and the Resilient
Floor Covering Institute. On April 3, 2003, OSHA entered into a
settlement agreement with those petitioners. In that agreement, OSHA
agreed to provide the petitioners and other interested parties with a
further opportunity to present evidence on the progress that has been
made on slip resistant coatings and test methods. OSHA agreed to then
evaluate the evidence in the expanded record on these topics and, based
on the entire rulemaking record issue a final rule, not later than
January 18, 2006, reaffirming, amending, or revoking the requirements
in Sec. 1926.754(c)(3).
Pursuant to the terms of the settlement agreement, on July 15, 2004
(69 FR 42379), OSHA published a notice announcing a limited reopening
of the record for Sec. 1926.754(c)(3). This reopening specifically
sought information regarding:
(1) Whether the test methods identified in Sec. 1926.754(c)(3) and
Appendix B to subpart R--or any other test methods that are available,
or reasonably can be expected to be available by July 18, 2006--are
suitable and appropriate to evaluate the slip resistance of wetted,
coated skeletal structural steel surfaces on which workers may be
expected to walk in connection with steel erection activities; and
(2) Whether skeletal structural steel coatings that comply with the
slip resistance criterion of the Standard when tested under the
identified method(s) are commercially available--or reasonably can be
expected to be commercially available--by July 18, 2006, and whether
the use of such coatings will be economically feasible.
The record closed on October 13, 2004. During the reopening of the
record, a total of 18 comments were submitted. Comments were received
from DOW Chemical Company; the Associated General Contractors of
America (AGC); the American Society of Safety Engineers (ASSE);
International Association of Bridge, Structural, Ornamental and
Reinforcing Iron Workers; Ironworker Employers Association; Resilient
Floor Covering Institute (RFCI); the OSHA/SENRAC Steel Coalition; the
Society for Protective Coatings (SSPC) co-signed by the American
Institute of Steel Construction, Metal Building Manufacturers
Association, National Paint and Coatings Association, Paint &
Decorating Contractors of America and the Steel Joist Institute; as
well as individual members of the public.
II. Reasons for Withdrawal/Revocation of 1926.754(c)(3)
In the original rulemaking, the Agency agreed with the Steel
Erection Negotiated Rulemaking Advisory Committee's (SENRAC)
recommendation to address slippery walking, working and climbing
surfaces on skeletal structural steel (66 FR 5214). The purpose of
Sec. 1926.754(c)(3) is to help prevent falls by reducing the chance of
slipping on coated structural steel surfaces when wet. This provision
was designed to augment other requirements in Subpart R that
collectively form a strategy for reducing fatalities and injuries due
to falls. For example, there are fall protection requirements (e.g.,
personal fall arrest) (Sec. 1926.760), and structural steel stability
requirements (Sec. 1926.754-.758). The slip resistance provision was
not intended to be the sole or primary means of protecting workers from
fall hazards. The record as a whole now demonstrates that it is
unrealistic to expect that employers will be able to comply with Sec.
1926.754(c)(3).
As mentioned, in the rulemaking for subpart R, the Agency decided
to delay the effective date of Sec. 1926.754(c)(3) for five years.
This delayed effective date was to serve two purposes: (1) To permit
time for precision and bias statements to be developed and approved for
the ASTM standards referenced in the provision, and (2) to provide time
for the industry to develop coatings that complied with the
requirements of the provision. Comments in the original rulemaking
record suggested that five years would be a reasonably sufficient time
to achieve these advancements (66 FR 5216-5217).
In the July 15, 2004, reopening notice, the Agency noted that, ``if
this determination were to be in error, it would need to revise the
slip-resistance provision in some respects, or possibly even to revoke
it'' (69 FR 42380). From the comments provided during the limited
reopening of the record it appears that the determination was in fact
premature. To date, the test methods referenced in Sec. 1926.754(c)(3)
have not been validated, meaning they lack precision and bias
statements and there is a high probability that they will not be
validated by the effective date of the provision. Moreover, it now
appears that ASTM intends to withdraw the test methods shortly after
the effective date. Without the ASTM test methods, employers will not
be able to comply with the provision. In addition, while some compliant
coatings appear to be available, some manufacturers are uncertain as to
how to develop coatings that comply with the provision without
validated test methods. Further, the durability of such coatings in
terms of protecting steel from corrosion in the variety of environments
in which they would be used remains unknown.
Testing
ASTM Standard (Testing Method) Development
Section 1926.754(c)(3) requires that coatings be tested for slip
resistance using an ASTM standard test method (F1677 or F1679). At the
time the final rule was issued, ASTM had developed testing methods for
two testing machines; however, under ASTM rules, these standards were
provisional, pending the completion of precision and bias statements
for each. As noted above, a precision and bias statement is
documentation that the test method, in laboratory tests, has been shown
to have an acceptable degree of repeatability and reproducibility. OSHA
believes that completion of the precision and bias statements is
critical; as the Agency stated in the settlement agreement, ``there is
a need to have these test methods validated before they can be deemed
acceptable for measuring slip resistance under the Standard.''
When OSHA enacted Sec. 1926.754(c)(3), the Agency believed there
was a high probability that precision and bias statements would be
approved for these two testing methods by the provision's effective
date. This belief was based largely on data suggesting that the devices
had the requisite accuracy and reliability. In this regard, in the
preamble to the Steel Erection Standard, OSHA stated that the record
showed F1677 and F1679 were ``sufficiently accurate and yield
sufficiently reproducible results'' for use in testing whether coatings
comply with the Standard (66 FR 5216). OSHA pointed out that the
``English II study'' (William English, Dr. David Underwood and Keith E.
Vidal, ``Investigation of Means of Enhancing Footwear Traction for
Ironworkers Working at Heights'' (November 1998)) showed the English XL
tribometer (F1679) had ``achieved satisfactory precision and bias,'' in
accordance with ASTM standard practice for conducting interlaboratory
studies to determine test method precision (ASTM E691-92) (66 FR 5216).
However, currently there are no approved precision and bias
statements for either ASTM method. (See Exhibits 2-4, 2-7, 2-8, 2-9, 2-
11, 2-14). In fact, in 2004, the ASTM Committee on
Standards (COS) expressed concerns about not only the lack of precision
and bias statements but the proprietary (i.e., brand/model specific)
nature of both F1677 and F1679. (See Exhibit 2-4 or 2-6). In a letter
from Mr. Childs, Chairman of COS, to Mr. DiPilla, Chairman of ASTM
Committee F-13, Mr. Childs notes that the lack of precision and bias
statements in F1677 and F1679 violates ASTM Form and Style
requirements. Mr. Childs also notes that the proprietary nature of the
ASTM standards violates section 15 of the Regulations Governing ASTM
Technical Committees. Further, the COS notes that the F-13 committee
``is working towards the development of methods that are not apparatus-
specific, and expects that these standards will be developed by
September 30, 2006'' (Exhibit 2-14-3). The letter concludes that COS
intends to withdraw the two test methods if the committee has not
completed action on developing methods that are not apparatus specific
by September 2006.
Additional comments (Exhibits 2-2, 2-4, 2-7, 2-8, 2-11, 2-14) also
suggest that ASTM will be withdrawing F1677 and F1679 in the near
future. There are indications that it is unlikely that the F-13
committee will complete development of non-proprietary test methods by
the September 2006 time frame. Evidence in the record suggests that in
order for the F-13 committee to develop a non-proprietary standard,
research would be necessary to ``develop a suite of standard reference
materials that * * * would become the accepted reference value,
allowing validation of individual tribometers.'' (Exhibit 2-4).
Information in the record indicates that completion of such research
could take considerable time (Exhibits 2-7, 2-8). In addition, the F-13
committee had to raise money ($45,000) to fund that research, and there
is no indication in the record that the funds had been secured and the
research begun (Exhibit 2-4).
Therefore, from the record, it appears that ASTM standards F1677
and F1679 will not be validated with precision and bias statements by
July 18, 2006 and that ASTM will withdraw the standards shortly
thereafter. It is also unlikely that a new, non-proprietary standard
will be drafted and finalized by the July 18, 2006, effective date
(Exhibits 2-8, 2-11). In addition, any particular machine for which the
ASTM method is used would have to have a precision and bias statement,
and from the record this also seems unlikely to occur by the July 18,
2006, effective date in Sec. 1926.754(c)(3). Resilient Floor Covering
Institute (RFCI) said their experience is that it takes three to four
years for ASTM to approve standards once they are developed (Exhibit.
2-14, p. 7). In the meantime, COS has given no indication that it will
delay withdrawing F1677 and F1679 during the approval process for a new
test method. If there are no ASTM test methods it will not be possible
for employers to comply with the Standard. Collectively, these comments
indicate that it is unlikely that there will be completed ASTM
standards (with precision and bias statements) for use by the scheduled
effective date of the provision. Moreover, there is too much
uncertainty about whether and when there will be a validated ASTM test
method to justify delaying the effective date any further.
Reliability of Testing Methods/Devices
Another concern has been the reliability of the testing devices for
which ASTM had developed standards. Some of the comments provide
evidence that the English XL and Brungraber Mark II tribometers are
reliable indicators of slip resistance.
For example, the American Society of Safety Engineers (ASSE) and
the National Forensic Engineers, Inc. (Exhibits 2-5, 2-9) both point
out that the testing of the English XL tribometer, conducted in ASTM F-
13 workshops in 1998, 2000, and a 2002 interlaboratory test study, have
shown precision results higher than any other standardized testing
device or method. As a basis to support ASSE's position that these
testers are reliable they also noted that there have been court cases
where, they assert, the English XL machine has been accepted as a
legitimate scientific instrument.
ASSE's comment includes an article by Brian C. Greiser, Timothy P.
Rhoades and Raina J. Shah published in the June 2002 issue of
Professional Safety, which addresses the suitability of the Brungraber
Mark II and English XL machines for wet testing. This article describes
a study, conducted by the authors, which compared the Brungraber and
English machines. The study found the results generally comparable, so
long as a particular test ``foot'' was used with the Brungraber machine
(Exhibit 2-9).
The President of High Safety Consulting Services (Exhibit 3-2),
Steven High, supports the use of ASTM F1679 and F1677 methodology and
attached an analysis of a 1995 study (``English I''), which showed a
positive correlation of wet testing results between the English XL and
Brungraber Mark II tribometers.
Dr. Robert Smith of the National Forensic Engineers, Inc.,
submitted a 2003 ASTM paper he wrote, titled ``Assessing Testing Bias
in Two Walkway-Safety Tribometers'' which was published in ASTM's
Journal of Testing and Evaluation. His paper addresses calibration of
English XL and Brungraber Mark II tribometers to eliminate bias
(Exhibit 2-5). Specifically, Dr. Smith used graphical data criterion
developed by M. Marpet to analyze testing data from a 1999 study
(Powers, C.M., Kulig, K., Flynne, J., and Brault, J.R., ``Repeatability
and Bias of Two Walkway Safety Tribometers,'' Journal of Testing and
Evaluation JTEVA, Vol. 27) and finds that the results indicate bias in
the English XL tribometer at higher angle settings when using the
Neolite test foot material on a smooth surface (Exhibit 2-5-4). Dr.
Smith's paper provides quantified data which, he suggests, validates
the bias and allows for calibration of the English XL tribometer to
eliminate the bias for wet testing.
Finally, some commenters stated that continued use of the English
XL machine by experts in the field demonstrated its reliability (see,
e.g., exhibits 2-3, 2-5, 3-1).
In addition to comments supporting the reliability of the testing
devices, comments were submitted arguing that they are unreliable.
Three comments (Society for Protective Coatings, OSHA/SENRAC Steel
Coalition, and Resilient Floor Covering Institute, Exhibits 2-7, 2-8,
2-14) discuss the reliability of the English XL and Brungraber
tribometers and find them to be insufficiently reliable to use in
testing coated structural steel when using the ASTM test methods. The
Resilient Floor Covering Institute (RFCI) states, ``English XL
generates results that are so imprecise and variable that no precision
and bias statements have ever been approved for this test method''
(Exhibit 2-14). Additional concerns of these commenters are the test
``foot'' material, which they believe can vary from batch to batch in
its production, as well as the ability of atmospheric conditions such
as temperature and humidity to significantly affect the results of the
tests.
The Society for Protective Coatings (SSPC) (Exhibit 2-7), said the
ASTM F1677 and F1679 methods were not reliable because of the
variability in the measured slip results, therefore making the methods
[testers] unreliable. SSPC appended additional materials, including a
study conducted by Dr. Bernard Appleman, which attempted to develop
reference panels, to determine slip properties of coatings intended for
erected steel (Exhibit 2-7-3). The study identifies four possible
sources of variation in the Appleman test results, which brings those
results into question. The study was not successful in developing reference
panels, which SSPC argues is in part due to the inconsistent slip readings when
using the test methods.
SSPC also appended minutes to an ASTM F-13.10 Subcommittee meeting
held on June 3, 2002 which include a description of tests done on both
the F1677 and F1679 methods. According to the minutes, stability
testing on F1677 (the ASTM standard for the Brungraber Mark II device)
had begun, and would need to be a continuing process to assess whether
the individual machine was stable over time and use. The minutes also
note that it is unknown whether changes in the results of the stability
testing would be due to the machine, the Neolite test foot or some
other factor. The minutes further describe ruggedness testing done on
F1679 (the ASTM standard for the English XL device) and a summary of
the results is included, which showed, among other things, that with a
Neolite test foot, temperature influenced slip index readings and
humidity had no effect on wet slip index readings.
RFCI (Exhibit 2-14) references a 2003 article by Bowman, et al.
published in ASTM International, which indicates that the English XL
has ``certain consistent biases and high variability,'' which makes it
difficult to compare results with other tribometers. This study also
indicates that the English XL tribometer and Brungraber Mark II are
significantly affected by temperature and humidity.
RFCI also appended a study by Michael A. Sapienza conducted in June
of 1998. The test attempted to establish consistent readings for a
Neolite test ``foot'' on various machines for a series of surfaces. The
study claims that the results indicate a high machine bias. A high
machine bias indicates that the results are less likely to be
replicated when a different test machine is used, which calls both the
validity and the comparability of results from different test machines
into question.
In Dr. Smith's paper, ``Assessing Testing Bias in Two Walkway-
Safety Tribometers,'' as discussed above, he found that the Brungraber
tribometer could be numerically calibrated to eliminate bias; however,
the calibration was only possible for dry conditions and only up to a
slip-resistance value of 0.4, below the Standard's 0.5 threshold. Above
0.4, the results were not reliable; thus, he concluded that the
Brungraber test method was not suitable for testing coatings on
structural steel under wet conditions (Exhibit. 2-5, p. 4).
The comments in the record indicate that there is some additional
empirical evidence indicating the two testing devices referenced in the
standard's Appendix B are reliable. However, there continues to be a
debate within the industry on the issue of reliability and this debate
emphasizes the need to have approved precision and bias statements for
the applicable ASTM test methods. The precision and bias statements are
necessary for employers to know with certainty when they are in
compliance with the slip resistant standard--by allowing them to rely
on documentation or certification reflecting the results of testing
using a test method that has been approved or shown to be suitable and
appropriate for measuring the slip resistance of steel. As stated
above, there are poor prospects that completed ASTM methods (with
approved precision and bias statements) will be in place in the
foreseeable future. The Agency had been relying on what appeared to be
reasonable prospects in 2001 that the precision and bias statements
would be completed by the provision's effective date. That would have
completed the ASTM method process for at least these two testing
devices. It now appears that not only will there be no completed
precision and bias statements by July 2006, but that there will be no
applicable ASTM standards in place as of September, 2006. Finally, with
this degree of uncertainty regarding the future of ASTM standards for
such devices, the Agency is unable to make a reasonable estimate for
how much longer it will take beyond July 2006 for that process to be
completed.
Coatings
In the preamble to the Steel Erection Standard, OSHA said record
evidence of the availability of compliant slip resistant coatings was
``conflicting'' (66 FR 5217). Although OSHA found that there were some
slip resistant coatings currently in use for steel erection, their use
was in ``limited specialized applications'' and most had not been
adequately tested to determine whether they comply with the Standard
and meet industry performance needs (66 FR 5217-5218). OSHA
acknowledged that it would take additional time for manufacturers to
develop, test and widely distribute suitable coatings. However, in view
of the fact that there were some coatings on the market and technology
for developing additional coatings was in place, OSHA determined that a
five-year delay in the effective date would provide enough time for the
industry to develop and distribute compliant coatings across the
industry (66 FR 5217).
In determining whether compliant slip resistant coatings are
``available'' (or reasonably can be expected to be available by the
effective date) OSHA examined two issues: (1) whether available slip
resistant coatings comply with the Standard's 0.50 minimum threshold,
and (2) whether available slip resistant coatings are sufficiently
durable for use in the variety of environments in which coatings are
used. It should be noted that durability in this context means the
suitability of the coatings to protect the steel in various settings
from corrosion over time, rather than its ability to retain its slip
resistant character. For example, to be useable by the industry,
coatings for steel members in bridges in the northeast would need to be
protective against road salt, a highly corrosive agent.
Some of the comments addressing the development of slip resistant
coatings emphasize the difficulty of moving forward with the
development of coatings without a reliable testing device. Other
comments indicate that, notwithstanding that problem, the evaluation of
existing coatings and development of prospective coatings that might
meet the standard's criteria is proceeding and that employers can
comply with the provision.
There is some new evidence to suggest that there are coatings
available now and/or that reasonably could be expected to be available
by July 2006, that meet the provision's slip resistance criterion.
Specifically, several commenters (Exhibits 2-3, 2-5, 2-13, 2-15, 3-2)
point to evidence from the original rulemaking--the 1995 and 1998
English studies, the Canadian Pulp Mill project--and to a new July 2003
article, ``The Rough, the Smooth and the Ugly,'' Journal of Protective
Coatings and Linings, (Exhibit 2-7-10) to argue that paints are
available now or that they could be available by the July 18, 2006
effective date with the addition of polybeads. See also Exhibit 2-5,
wet testing study by Dr. Smith produced results that were ``always
above 0.5.''
However, there is no new evidence relative to the durability of
these coatings in terms of protecting steel from corrosion and no
evidence on the extent to which they would be sufficiently durable for
the variety of environments in which they are used. The extent to which
currently available, potentially compliant coatings could satisfy the
variety of environments is unknown since the durability of those
coatings in challenging settings (i.e., where salt or other corrosive
agents are present) has not been established. Also, the durability of coatings
with polybeads has not been established, so the extent to which those
coatings could be used is also unknown.
In addition, there is no new evidence to supplement the original
record (specifically the Canadian Pulp Mill project evidence)
indicating that existing coatings or coatings that could reasonably be
expected to be available (i.e., coatings with polybeads added) are
durable in terms of protecting steel from corrosion. Those commenters
that suggest paints are available now or could reasonably be available
do not focus on the durability of the coatings.
One commenter, S. High (Exhibit 3-2), asserts that a small study he
did indicates that some coatings currently used by fabricators meet the
slip resistance threshold. However, even if a limited number of
existing coatings meet the criteria for some settings, no evidence was
presented to indicate that these coatings are sufficiently durable to
meet the different performance needs of various environments
encountered in steel erection.
Thus, there is insufficient information in the record for the
Agency to be able to establish that either currently available coatings
(which presumably are durable at least in some settings) or coatings
that could reasonably be available would be suitable in terms of
durability in various applications.
The major focus of the paint industry's comment is on the
reliability of the testing devices rather than on the development of
compliant coatings; its main argument is that the availability of
paints is unknown because the test method is neither reliable nor
accurate (SSPC Comment, Exhibit 2-7). SSPC submitted one new study,
performed by KTA-Tator, Inc. titled ``Developing Reference Panels for
Slip Testing of Erected Steel'' (Dr. Bernard Appleman, August 2002)
(Exhibit 2-7). This study focused on the development of coated
reference panels for slip resistance testing. The study attempted to
develop painted surfaces with repeatable slip indexes that could serve
as reference panels for unknown paints. These reference panels would
then ``serve as a bench mark(s) to determine the relative slip index of
coated steel.'' The study started with 12 paints and 3 were ultimately
selected for further evaluation. The study claimed that it was not able
to produce reference panels due to inconsistent slip indexes results.
Other comments were submitted that addressed a variety of issues,
such as economic feasibility and the scope of the phrase ``paint or
similar material.'' For example, one article that was submitted, ``The
Rough, the Smooth and the Ugly,'' Journal of Protective Coatings and
Linings July 2003 article, (Exhibit 2-7-10), addresses economic
feasibility. The article states that minimal additional material costs
were incurred in adding polybeads to the paint. However, citing the
same article, SSPC argues that the conclusion that adding beads does
not significantly increase costs of the coatings is ``very tentative.''
Another commenter (Exhibit 2-16) raises concerns over environmental
restrictions which would possibly prohibit spraying paints (and/or
impose other restrictions). This commenter also noted that compliant
paints available for the ``dipping'' method (typically used for
applying coatings to steel) are still not developed. Several commenters
(Exhibits 2-11, 3-2) note a possible problem meeting both current state
DOT mandated coating requirements and the requirements of Sec.
1926.754(c)(3). One of those commenters (Exhibit 3-2) emphasizes that
this concern is particularly significant because of the time lag
between submitting state job bids and commencement of the actual steel
erection activity. Finally, another commenter (Exhibit 2-12), expresses
concern over the breadth of the provision's coverage (particularly with
regard to galvanized steel) in view of its reference to ``paint or
similar material.''
Irrespective of these other issues, this record indicates that the
availability of paints, which will both comply with the slip resistance
requirement and have sufficient durability for the variety of
applications in which the coated steel will be used, has not been
established.
Suggested Alternatives to Testing Requirements
In addition to comments urging OSHA to reaffirm or revoke the slip
resistance provision, several comments suggested alternatives including
use of alternative testers and delaying the effective date to allow
more time for the testing methods to be approved by the industry. One
commenter (Exhibit 2-2) discusses two alternative testers, the British
Pendulum tester, which is referenced by ASTM E404, and a ``German
Ramp'' test. Specifically this comment notes that the British Pendulum
tester is referenced in several standards in other countries, as well
as in ASTM standards and standards for the International Organization
for Standardization (ISO).
The International Association of Bridge, Structural, Ornamental,
and Reinforcing Iron Workers (Exhibit 2-10) suggests that OSHA extend
the July 18, 2006, deadline for three more years, to allow time to
refine testing methods. In addition, the Associated General Contractors
(AGC) suggests that, assuming OSHA retains the provision, OSHA should
postpone the effective date (Exhibit 2-11).
In addition, one commenter (Exhibit 2-12) suggests that OSHA modify
the standard by adding an exception to Sec. 1926.754(c)(3) where
employees use fall protection at all heights.
The Agency considered the suggested alternatives; however, for
several reasons they are not being adopted. With respect to alternative
testing devices, there is not enough information in the record to
indicate whether the alternative test devices would be acceptable for
measuring slip resistance under the standard. For example, it is
unclear whether ASTM has approved methods and precision and bias
statements for the British Pendulum tester for use in this context (wet
surfaces). As to delaying the effective date of the provision, OSHA has
decided not to extend the effective date for three more years because
the Agency does not believe that doing so will resolve the high degree
of uncertainty that now surrounds the ASTM test methods. The ASTM test
methods will not be validated by the effective date and are likely to
be withdrawn later this year. In addition, there is great uncertainty
whether there will be any approved ASTM test methods in this regard
within the next three years. As discussed, although ASTM's COS expects
the F-13 committee to complete development of a non-proprietary test
method by September 2006, there is no information in the record about
whether this deadline will be met. Moreover, once a standard is
developed, ASTM rules require that it be validated and approved before
it becomes effective. According to RFCI, the approval process alone
could take three or four years to complete (Exhibit 2-14). As a result,
it is doubtful that extending the effective date three years would be
sufficient. For the same reasons, OSHA also rejected extending the
effective date for an even longer period of time. There is too much
uncertainty with the development of the ASTM test methods for the
Agency to make a reasonable estimate of when, if ever, applicable ASTM
test methods will be approved and validated.
The suggestion to provide an exception for workers who are using
100% fall protection at any elevation is rejected for two reasons.
First, the Agency finds that there are technical reasons for revoking
the provision. Second, the suggestion to provide such an exception
raises issues that were addressed in Sec. 1926.760. In the final
rule for Subpart R, the Agency decided to defer to SENRAC's
recommendation on the issue of tying off for fall protection. Since the
scope of this reopening did not include Sec. 1926.760, this
alternative is rejected.
Conclusion
Compliance with the slip resistance provision depends on there
being ASTM methods, that is standards and approved precision and bias
statements, in place for the use of slip testing machines. Submitted
comments indicate that ASTM's continued approval of the F1677 and F1679
methods are in doubt. The uncertainty of those standards' future
undermines a basic assumption that underlies the provision--that there
will be testing machines with ASTM methods in place for use when the
provision goes into effect.
While some new evidence was submitted indicating that the two
machines referenced in Appendix B are reliable, the reliability of the
testing methods will be questioned in the industry until there are
applicable ASTM methods (including approved precision and bias
statements). When that may occur is unclear. Such methods are necessary
for employers to know that a coating complies with the standard.
The question of whether compliant paints are going to be available
by July 2006 cannot be answered with sufficient certainty until there
are completed ASTM testing methods available for evaluating the paints.
As long as that aspect of the problem is unresolved, the question of
paint availability will also be unresolved. Furthermore, durability
testing cannot be completed until the paint industry knows what testing
devices and methods to use to determine which paints to test for
durability. Since the time frame for resolving the ASTM standards
problem is uncertain, the time frame for ascertaining which paints
would be both compliant with the provision and suitable for the
industry is also uncertain.
Because the advancements OSHA anticipated are not likely to occur
by the effective date, and may not occur for a number of years, it will
not be possible for employers to comply with Sec. 1926.754(c)(3) and
for these reasons, the Agency is revoking it.
III. Economic Analysis and Regulatory Flexibility Certification
Analysis
The economic impact and regulatory flexibility analyses for the
final Steel Erection Standard contained detailed information on
economic impacts, including estimated annualized costs to comply with
the slip-resistance provision (66 FR 5253-5263). As a result of the
revocation of this provision its projected $29.5 million annualized
costs for affected establishments, which were anticipated in the
economic analysis for the final rule of Subpart R, will not be
incurred. These projected costs were 38% of the total estimated
increased costs to the industry for compliance with the final rule (66
FR 5257). The revocation of Sec. 1926.754(c)(3) is not an economically
significant regulatory action for the purposes of EO 12866. OSHA also
certifies that this revocation will not have a significant impact on a
substantial number of small entities, for the purposes of the
Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
IV. Environmental Impact Assessment
OSHA has reviewed the final rule in accordance with the
requirements of the National Environmental Policy Act of 1969 (NEPA)(42
U.S.C. 4321 et seq.), the regulations of the Council on Environmental
Quality (40 U.S.C. 1500), and the Department of Labor's NEPA procedures
(29 CFR part 11). As with the existing Steel Erection Standard, the
focus of this final rule is on the reduction and avoidance of accidents
occurring during structural steel erection. Consequently, no major
negative impact is foreseen on air, water or soil quality, plant or
animal life, the use of land, or other aspects of the environment.
V. Unfunded Mandates
OSHA has reviewed the final rule in accordance with the Unfunded
Mandates Reform Act of 1995 (2 U.S.C. 1501 et seq.) and Executive Order
12875. For the reasons stated above and in the notice of proposed
rulemaking (69 FR 42381), OSHA has determined that the final rule is
likely to reduce the regulatory burdens imposed on public and private
employers by the slip resistance provision this final rule revokes.
This final rule would not expand existing regulatory requirements or
increase the number of employers covered by the Steel Erection
Standard. Consequently, the final rule would require no additional
expenditures by either public or private employers and does not mandate
that state, local or tribal governments adopt new, unfunded regulatory
obligations.
VI. Federalism
OSHA has reviewed this final rule in accordance with the Executive
Order on Federalism (Executive Order 13132, 64 FR 43255, August 10,
1999), which requires that agencies, to the extent possible, refrain
from limiting State policy options, consult with States prior to taking
any actions that would restrict State policy options, and take such
actions only when there is clear constitutional authority and the
presence of a problem of national scope. Executive Order 13132 provides
for preemption of State law only if there is a clear congressional
intent for the Agency to do so. Any such preemption is to be limited to
the extent possible.
Section 18 of the OSH Act (29 U.S.C. 651 et seq.) expresses
Congress' intent to preempt State laws where OSHA has promulgated
occupational safety and health standards. Under the OSH Act, a State
can avoid preemption on issues covered by Federal standards only if it
submits, and obtains Federal approval of, a plan for the development of
such standards and their enforcement (State-Plan State). 29 U.S.C. 667.
Occupational safety and health standards developed by such State-Plan
States must, among other things, be at least as effective in providing
safe and healthful employment and places of employment as the Federal
standards. Subject to these requirements, State-Plan States are free to
develop and enforce under State law their own requirements for safety
and health standards.
This final rule complies with Executive Order 13132. As Congress
has expressed a clear intent for OSHA standards to preempt State job
safety and health rules in areas addressed by OSHA standards in States
without OSHA-approved State Plans, this rule limits State policy
options in the same manner as all OSHA standards. In States with OSHA-
approved State Plans, this action does not significantly limit State
policy options.
VII. State Plan States
When Federal OSHA promulgates a new standard or a more stringent
amendment to an existing standard, the 26 States or U.S. Territories
with their own OSHA-approved occupational safety and health plans must
revise their standards to reflect the new standard or amendment, or
show OSHA why there is no need for action, e.g., because an existing
State standard covering this area is already ``at least as effective''
as the new Federal standard or amendment. 29 CFR 1953.5(a). The State
standard must be at least as effective as the final Federal rule, must
be applicable to both the private and public (State and local
government employees) sectors, and should be in place within six months
of the publication date of the final Federal rule. When OSHA
promulgates a new standard or standards amendment which does not impose
additional or more stringent requirements than an existing standard,
States are not required to revise their standards, although OSHA may
encourage them to do so. The 26 States and territories with OSHA-approved
State Plans are: Alaska, Arizona, California, Connecticut (plan covers only
State and local government employees), Hawaii, Indiana, Iowa, Kentucky,
Maryland, Michigan, Minnesota, Nevada, New Mexico, New Jersey (plan covers
only State and local government employees), New York (plan covers only State
and local government employees), North Carolina, Oregon, Puerto Rico, South
Carolina, Tennessee, Utah, Vermont, Virginia, Virgin Islands (plan
covers only State and local government employees), Washington, and
Wyoming.
Since this final rule revokes the slip-resistance provision in the
Steel Erection standard (Subpart R, Sec. 1926.754(c)(3) and Appendix
B), it will not impose any additional or more stringent requirements on
employers. Therefore, States with OSHA-approved State Plans may, but
are not required, to take parallel action. OSHA encourages State Plans
to review the factors considered by OSHA in taking this action.
VIII. OMB Review Under the Paperwork Reduction Act
Under the Paperwork Reduction Act of 1995 (PRA)(44 U.S.C. 3501 et
seq.), agencies are required to seek the Office of Management and
Budget (OMB) approval for all collections of information (paperwork).
As part of the approval process, agencies must solicit comment from
affected parties with regard to collection of information, including
the financial and time burdens estimated by the agencies for collection
of information. OSHA has determined that this final rule does not
contain any collections of information as defined in OMB's regulations
(60 FR 44978 (8/29/1995)).
IX. Authority
This document was prepared under the Direction of Jonathan L.
Snare, Acting Assistant Secretary of Labor for Occupational Safety and
Health, U.S. Department of Labor, 200 Constitution Avenue, NW.,
Washington, DC 20210. It is issued under sections 4, 6, and 8 of the
Occupational Safety and Health Act of 1970 (29 U.S.C. 653, 655, 657),
section 107 of the Contract Work Hours and Safety Standards Act
(Construction Safety Act) (40 U.S.C. 3704), Secretary of Labor's Order
5-2002 (67 FR 65008), and 29 CFR part 1911.
Signed at Washington, DC, this 11th day of January, 2006.
Jonathan L. Snare,
Acting Assistant Secretary of Labor.
List of Subjects in 29 CFR Part 1926
Structural steel erection, Construction industry, Construction
safety, Occupational Safety and Health Administration, Occupational
safety and health.
0
For the reasons set forth in the preamble, 29 CFR part 1926 is amended
as follows:
PART 1926--SAFETY AND HEALTH REGULATIONS FOR CONSTRUCTION
Subpart R--Steel Erection
0
1. The authority citation for Subpart R is revised to read as follows:
Authority: Section 107, Contract Work Hours and Safety Standards
Act (Construction Safety Act) (40 U.S.C. 3704); Sections 4, 6, and
8, Occupational Safety and Health Act of 1970 (29 U.S.C. 653, 655,
657); Secretary of Labor's Order No. 3-2000 (65 FR 50017) or 5-2002
(67 FR 65008), and 29 CFR part 1911.
Sec. 1926.754 [Amended]
0
2. In Sec. 1926.754, remove paragraph (c)(3).
Appendix B [Removed and Reserved]
0
3. In Subpart R, remove and reserve Appendix B.
[FR Doc. 06-374 Filed 1-17-06; 8:45 am]
BILLING CODE 4510-26-P
