August 18, 2017

Mr. Todd Schlekeway
Executive Director
National Association of Tower Erectors
8 Second Street SE
Watertown, SD 57201-3624

Dear Mr. Schlekeway:

Thank you for your March 17, 2017, letter on the Occupational Safety and Health Administration’s (OSHA) final rule revising and updating the general industry Walking-Working Surfaces and Personal Protective Equipment (Fall Protection Systems) standards (29 CFR part 1910, subparts D and I). Also, thank you for taking time to participate in two teleconference calls (April 13 and June 15) with OSHA to discuss your comments and questions about the final rule.

As you know, OSHA published the final rule on November 18, 2016, and it became effective on January 17, 2017. The final rule marked the culmination of a rulemaking effort that began in 1973. This effort involved multiple proposed rules, hundreds of public comments, and a week-long public hearing on the proposal. The rulemaking generated a robust record that demonstrates the final rule is feasible. OSHA took a number of steps in the final rule to provide greater compliance flexibility for employers. In addition, the Agency made the final rule more consistent with OSHA’s Construction Fall Protection Standard, which makes compliance easier for stakeholders, such as National Association of Tower Erectors (NATE) member stakeholders (hereafter “NATE employers”), who perform both general industry and construction activities.

This response constitutes OSHA’s interpretation only of the requirements and questions discussed in your letter and during the two teleconferences.

Question/Comment 1: The final rule includes a 6-month extension of the deadline to train workers on fall hazards and fall protection equipment (§1910.30). NATE does not believe that 6 months is sufficient for some NATE employers, particularly those who perform maintenance on antennas on commercial building roofs, to complete that training. NATE requests that OSHA give NATE employers until November 18, 2017, to comply with the training requirements in the final rule.

During the teleconference calls, NATE said some of their employers who perform maintenance on antennas on commercial building roofs also need additional time to analyze fall hazards on thousands of roofs before they can provide fall protection equipment and train their maintenance technicians. Therefore, NATE requests that OSHA also extend the deadline for providing fall protection for employers who perform that maintenance work.

Response: The final rule’s extension of the deadline to train workers on fall hazard and equipment ended on May 17, 2017, and the Agency does not think it is necessary to extend it. NATE employers perform work covered by OSHA’s Telecommunications (29 CFR 1910.268) and Construction Fall Protection (29 CFR part 1926, subpart M) Standards. Those standards require employers provide training on fall hazard and fall protection equipment to their workers. OSHA believes the training requirements in the Telecommunications and Construction Fall Protection Standards are equivalent to what the final rule requires since OSHA adopted the training requirement in the final rule from those standards. For example, the Telecommunications Standard, which applies to field work performed at field installations,[1] requires that employers provide training on “various precautions and safe practices.” OSHA has interpreted this as including personal fall protection equipment, such as personal climbing equipment (§1910.268(c)). Employers also must ensure that workers do not engage in activities the standard covers until they have received required training.

Similarly, the Construction Fall Protection Standard, which applies to NATE employers who perform construction activities on elevated walking-working surfaces (e.g., installing and repairing telecommunications equipment on towers and commercial building roofs), requires that employers train workers exposed to fall hazards (§1926.503). That training must include the nature of fall hazards in the work area and how to recognize them; the procedures to be followed to minimize fall hazards; the correct use and operation of fall protection systems, including guardrail, personal fall protection, safety net, and warning line systems; the correct procedures for erecting, inspecting, disassembling, and maintaining fall protection equipment; and the correct procedures for handling and storing fall protection equipment (§1926.503(a)(2)). In addition, the construction standard, like the final rule, requires retraining when the employer has reason to believe a worker does not have the required understanding and skills (§1926.503(c)).

Where employers already have provided training that meets the final rule, they may not need to provide initial training to those workers. In the preamble OSHA stated: “[a]n employer whose workers have received training, either from the employer or another employer, that meets the requirements of final §1910.30(a) will not need to provide additional initial training” (81 FR 82639). As discussed, NATE employers have trained the vast majority of their workers on fall hazards and fall protection equipment under the Telecommunications and Construction Fall Protection Standards. OSHA believes that training complies with the final rule. Therefore, NATE employers will not need to provide initial training to most of their workers. For the remaining workers (i.e., new workers, workers whose previous training did not meet the final rule), OSHA believes providing training will not pose significant difficulties (81 FR 82639). In the preamble OSHA explained that giving employers six months (until May 17, 2017) to provide training to the remaining workers would allow them to work the training into regular training schedules, which NATE said their employers have (81 FR 82639). Therefore, OSHA does not believe it is necessary to extend the deadline for NATE employers to train workers on fall hazards and fall protection equipment.

NATE also requests that OSHA extend the deadline to provide fall protection equipment stating that additional time is necessary because some employers who perform maintenance on antennas on commercial building roofs need to analyze fall hazards before they can provide fall protection. For two reasons, OSHA believes extending the deadline for NATE employers to provide fall protection is not appropriate or warranted. First, since 1971, when OSHA adopted the old general industry fall protection standard, all general industry employers have been required to protect workers from falling off elevated, unprotected edges and surfaces. Even before OSHA published the final rule, NATE employers were already required to provide fall protection for workers exposed to fall hazards while maintaining antennas on commercial building roofs. The final rule did not change that requirement; and NATE employers should be providing fall protection for those maintenance workers.

Second, OSHA does not believe that NATE employers need additional time to analyze fall hazards on commercial building roofs. The final rule on Walking-Working Surfaces and Personal Protective Equipment (Fall Protection Systems) Standards (29 CFR part 1910, subparts D and I) adopts the construction standard’s flexible approach for controlling fall hazards, which allows employers to select from among a range of accepted conventional fall protection systems the one that will work best in a particular situation. OSHA believes NATE employers are familiar with the flexible approach because, according to NATE, they perform construction activities as well as general industry operations. OSHA adopted the Construction Fall Protection Standard in 1994, and NATE employers have had many years to evaluate fall hazards in work areas in order to select an appropriate fall protection system. OSHA believes NATE employers should be able to draw on this experience within the final rule’s compliance deadlines if they decide to incorporate the flexible approach to control fall hazards in general industry operations.

Question/Comment 2: The final rule requires that fixed ladders extending more than 24 feet above a lower level must be equipped with a cage, well, personal fall arrest system, or ladder safety system before November 19, 2018 (§1910.28(b)(9)(i)(A)). NATE does not believe that 2 years gives some member companies enough time to comply with this requirement.

Response: OSHA does not believe it is necessary to extend the 2-year compliance deadline for equipping existing fixed ladders (that extend more than 24 feet above a lower level) with some type of fall protection (i.e., cage, well, ladder safety system, personal fall arrest system). As stated in the preamble to the final rule, the old rule already requires that fixed ladders more than 20 feet above a lower level be equipped with a cage or well (81 FR 82601). As such, existing fixed ladders already should be equipped with at least a cage or well. If fixed ladders are so equipped, employers do not have to install a ladder safety system or personal fall arrest system until November 18, 2036, the final deadline for installing ladder safety or personal fall arrest systems on existing fixed ladders. NATE employers will only have to equip those fixed ladders that currently do not have any type of fall protection, which OSHA believes is feasible to accomplish within the 2-year compliance deadline.

Question/Comment 3: NATE would like the telecommunications tower industry to be exempted from the 300-foot height limit for Rope Descent Systems (RDS) in §1910.27(b)(2)(i).

Response: The final rule does not exempt the telecommunications tower industry from 300-foot height limit on the use of RDS. However, the final rule provides that employers may use RDS above 300 feet if they demonstrate it is not feasible to access such heights by any other means or if those means pose a greater hazard than using an RDS (§1910.27(b)(2)(i)).

Question/Comment 4: The final rule requires that anchorages used in personal fall protection systems must be capable of supporting at least 5,000 pounds for each employee attached (§1910.140(c)(13)(i)). NATE believes that employers should be permitted to use anchorages with travel restraint/fall restraint systems that are capable of supporting 1,000 pounds.

Response: The final rule requires anchorages used in personal fall protection systems be capable of supporting at least 5,000 pounds for each employee attached. However, the final rule also includes a performance-based alternative that allows employers to use anchorages designed, installed, and used, under the supervision of a qualified person, as part of a complete personal fall protection system that maintains a safety factor of at least two (§1910.140(c)(13)(ii)). OSHA explained the alternative provision in the preamble:

The final rule does not require a 5,000-pound anchorage point in every situation. An employer may use an anchorage that meets a different strength, provided that (1) the anchorage is part of a complete fall protection system, (2) the personal fall protection system maintains a safety factor of at least two, and (3) the anchorage is designed, installed, and used under the supervision of a qualified person (81 FR 82655).

Question/Comment 5: The final rule requires that D-rings, snaphooks, and carabiners be tested to a “minimum tensile load” of 3,600 pounds without cracking, breaking, or incurring permanent deformation (§1910.140(c)(8)) and that the gate strength of snaphooks and carabiners be “proof tested” to 3,600 lbs. in all directions. NATE recommends that OSHA follow ANSI/ASSE Z359.1 – 2007 national consensus standard for testing requirements of connectors.

Response: OSHA recognizes that the requirement in the final rule for “proof testing” the gate strength of snaphooks and carabiners in §1910.140(c)(8) is not consistent with ANSI/ASSE Z359.1 – 2007, which does not require manufacturers to proof test the gate of each snap hook and carabiner. OSHA will publish a technical amendment correcting §1910.140(c)(8) so it is consistent with the ANSI/ASSE standard.

Question/Comment 6: NATE disagrees with exempting employers from the requirement to provide fall protection when their employees are inspecting, investigating, or assessing workplace conditions or work to be performed prior to the start of work or after all work has been completed (§1910.28(a)(2)(ii)). NATE believes all workers should be held to uniform standards.

Response: OSHA added the fall protection exemption to the final rule for pre-work and post-work inspections or assessments to make the standard consistent with OSHA’s Construction Fall Protection Standard (§1926.500(a)(1)). Also, many stakeholders urged that OSHA add the exemption because installing fall protection would take longer than conducting the inspection, exposing workers to fall hazards for a greater period of time and, thus, a greater hazard of falling (81 FR 82586). OSHA notes the exemption is limited. It applies only to pre-work and post-work inspections and not when fall protection has been installed and is available for workers to use to conduct pre-work and post-work inspections (§1910.28(a)(2)(ii)).

Question/Comment 7: NATE believes that OSHA should change the general industry requirement to provide fall protection when an employee can fall four feet or more to a lower level to six feet in order to be consistent with OSHA’s construction industry fall protection standard.

Response: As OSHA explained in the preamble to the final rule, the requirement that employers provide fall protection when workers can fall four feet or more to a lower level is not new (81 82588-89). The four-foot fall protection trigger was in the previous general industry standard, which the Agency adopted in 1971. OSHA adopted the 4-foot trigger from the ANSI A12.1-1967 national consensus standard, which prescribed a 4-foot trigger height as far back as 1932. The ANSI/ASSE A1264.1-2007 Safety Requirements for Workplace Walking/Working Surfaces and Their Access; Workplace Floor, Wall and Roof Openings; Stairs and Guardrails Systems Standard also requires fall protection when workers are exposed to unprotected sides or edges that are four feet or more above a lower level. Section 6(b)(8) of the Occupational Safety and Health Act of 1970 (OSH Act)(29 U.S.C. 655(b)(8)) specifies that OSHA follow the requirements in national consensus standards unless the Agency can show why a rule that substantially differs will better effectuate the purposes of the OSH Act. In the preamble to the final rule, OSHA said that nothing in the rulemaking persuaded the Agency that adopting a fall protection trigger above four feet would provide equivalent or greater protection (81 FR 82589).

Additional information about the final rule is available on OSHA’s website at https://www.osha.gov/walking-working-surfaces/index.html. OSHA also provides compliance assistance resources to help employers, particularly small businesses, meet the requirements of the final rule. For compliance assistance, please contact a compliance assistance specialist at https://www.osha.gov/dcsp/compliance_assistance/cas.html or visit OSHA’s compliance assistance webpage at https://www.osha.gov/employers/. In addition, employers and employees can call (800) 321-OSHA toll-free for workplace safety and health information or assistance 24 hours a day.

Thank you for your interest in occupational safety and health. I hope this letter has been helpful in understanding OSHA’s position on these subjects. OSHA’s requirements are set by statute, standards, and regulations. OSHA’s letters of interpretation do not create new or additional requirements; rather they explain the requirements and how they apply to particular circumstances. This letter constitutes OSHA’s interpretation only of the requirements discussed.

If you have any further questions, please do not hesitate to contact the Directorate of Enforcement Programs at (202) 693-2100.

Sincerely,

Loren Sweatt
Deputy Assistant Secretary

[1] The Telecommunications Standard applies to “work conditions, practices, means, methods, operations, installations and procedures” performed at telecommunication “field installations,” located outdoors or in building spaces used for such field installations” (§1910.268(a)(1)). In addition, the standard specifies that “field work” includes the “installation, operation, maintenance, rearrangement and removal conductors and other equipment used for signal proposed rule communication service, and of their supporting or containing structures, overhead or underground, on public and private rights of way, including building or other structures” (§1910.268).