Regulations (Preambles to Final Rules) - Table of Contents|
| Record Type:||Logging Operations|
| Title:||Section 4 - IV. Major Issues|
IV. Major Issues
As a result of issues raised by those commenting on the proposed logging standard, OSHA solicited information on 10 major issues in the notice of public hearing (55 FR 19745, May 11, 1990). OSHA requested detailed information on a variety of issues including training, personal protective equipment, first aid, chain-saw protective devices, and seat belts. These issues were discussed by the participants during the public hearings and in post-hearing comments. The evidence submitted to the record is summarized and evaluated in the following discussion of each issue and in the summary and explanation of the final rule.
1. "Training." Comments on the proposed rule generally supported the need for training. Several commenters, however, raised specific questions about particular training issues. As a result, OSHA requested in the hearing notice further comment on the following training issues: Effective date of training, sufficiency of training, and portability of training.
a. "Effective date for training." In the proposed rule, OSHA would have required employers to be in compliance with all provisions of the final logging standard within 60 days of publication of the rule in the Federal Register. The proposed rule did not provide extended compliance time for employers to familiarize themselves with the standard and to develop and conduct training. Some commenters said additional time to meet the training requirements of the rule was unnecessary (Ex. 9-3, 9-13; Tr. OR 343). These commenters said that in many logging establishments training is already being provided and that employers would not require significant time to incorporate the proposed training requirements into their ongoing programs. However, other commenters argued that the effective date for training should be delayed because additional time was necessary to develop the required training program and to train employees (Ex. 5-2, 5-27, 9-1, 9-2; Tr. W2 243-44). Commenters proposed various effective dates for training. For example, the Northeastern Loggers Association, Inc., recommended a 2-year phase-in of the training requirements (Ex. 5-2). The American Pulpwood Association, Inc. (APA), however, supported a shorter six-month phase-in period:
Safety training programs for loggers are largely specific to a function (for example, proper felling technique). A fully comprehensive training package will have to be developed to meet the training requirements. APA is attempting to develop training programs and have them available by the end of 1989. * * * APA will seek OSHA staff review of its training program as it is developed. We'd like a brief delay in enforcement, just long enough for us to have something available for employers (Ex. 5-27).
At the hearing there was little testimony about delaying the effective date for training. Mr. Doug Domenech, testifying on behalf of APA, repeated APA's position that employers should be given some additional time to comply with training requirements:
The training is a very needed thing and, unfortunately, we just don't have the infrastructure to provide that training. That's why * * * we * * * hope that OSHA will give some kind of variance on time before citations are delivered because it's just not out there. If loggers had to comply with a training requirement today, they'd all be cited (Tr. W2 243-44).
At the same time, however, Mr. Alex Hansen, of Associated Oregon Loggers, Inc. (AOL), testified that Oregon loggers already were in compliance with the training provisions contained in the proposed rule:
As far as we're concerned in Oregon, you could implement the training tomorrow. We already have it in place. We don't have a problem with it. We're advocates of safety training in the woods. I know some other states have some problems. They haven't been doing it or maybe not as strenuous as the Oregon rules, and I understand their problems, but as far as our association is concerned, if you pass it tomorrow, we're in compliance (Tr. OR 343).
The record indicates that training materials and courses for logging safety are widely available and that many logging establishments have implemented training programs (Ex. 4-122, 4-123, 4-181, 5-20, 5-33, 9-1, 9-2, 9-5, 9-6, 36; Tr. W1 163-64, W2 113, 115, 125, 199-201, OR 87, 259-60, 393, 546-47, 566). Trade associations such as AOL, APA and the Montana Logging Association have been providing training materials on an on-going basis (Ex. 5-27). APA expected to have completed a comprehensive training package for its members companies by 1989. In addition, state agricultural extension services are a source of training information (Ex. 4-122, 4-123). Several hearing participants submitted descriptions of their training programs and the actual training materials (Ex. 21, 22, 23, 24, 26, 28, 29).
OSHA is aware that many of the existing training programs are based on the training requirements of OSHA's pulpwood logging standard. Because the training requirements have been revised in this final rule, current training programs will have to be reviewed and upgraded, when necessary, to meet the revised requirements. In addition, the training provisions of the final rule vary to some degree from the proposed rule. As such, employers who made changes in their programs in response to the proposed rule will have to review their training materials to assure compliance with the final rule.
OSHA is aware that employers, trade associations and other organizations that provide training will need time to prepare and/or update training programs to meet the requirements of the final rule and will need time to provide training to employees. However, the record also shows that many companies and organizations already have developed training programs that meet most of the requirements of the final rule (Ex. 5-20, 5-27, 5-52, 5-69, 9-2; Tr. OR 343). Many establishments, especially those in States that have logging standards, already are providing training (Ex. 21, 22, 23, 24, 26, 28, 29). Therefore, OSHA does not believe that a lengthy delay is necessary to meet the training requirements of the final rule. The Agency believes that extending the effective date of the standard for 120 days after publication of the final rule in the Federal Register will be sufficient to allow employers and others to familiarize themselves with the final rule, to update training programs to meet the provisions of the final rule, and to conduct initial training. This phase-in period also will give employers time to determine whether current and new employees have received the training in all of the elements specified in this section or whether they will need additional training.
b. "Sufficiency of training." The second issue raised in the hearing notice concerned what training OSHA would consider sufficient to meet the training requirements in the final rule. Some commenters supported OSHA's preference for performance based training (Ex. 9-3, 9-15). Other commenters argued for detailed specifications to be included in the training requirements, including a minimum number of hours of training (Ex. 9-13, 9-19).
In general, the final rule contains training requirements in performance language to allow employer flexibility in tailoring training programs to the individual circumstances under which they operate. The final rule sets forth the basic elements that must be covered in the employer's training program, such as safe performance of assigned work tasks; safe use of tools; recognition and control of workplace hazards; prevention and control of general logging hazards; and the requirements of the final standard. The training provisions also require that employees initially work under supervision and that they demonstrate the ability to perform their work tasks safely before being released from supervision.
As discussed elsewhere in this preamble, each logging establishment has unique conditions or hazards associated with its logging operations, that result in unique methods of operation. OSHA believes that the general elements of the training provisions allow employers to take into account those differences while still requiring the employer to assure through training that each employee is able to perform the job safely.
On the basis of information submitted to the record and the testimony presented during the hearings, OSHA has determined that employers will not have difficulty in complying with the training requirements of the final rule. OSHA believes that the performance-based elements adopted in the final rule will enhance employee safety and will provide employees with the tools to permit them to actively participate in providing their own protection.
The Industrial Truck Association (ITA) recommended that OSHA specify in greater detail the training required for industrial truck operators (Ex. W1 5-47, Tr. 221-27). ITA urged OSHA to adopt the training provisions from the ASME B56.6 standard on rough-terrain forklift trucks. Mr. William Montweiler, testifying for ITA, stated:
Part Two of the B56.6 standard addresses general safety and operating practices that are highly relevant to the proposed rule's training provisions. Although ITA is pleased that the proposed rule's training provisions provide greater detail than OSHA's industrial truck rule, these provisions can be made still more effective by additional particularity.
The proposed rule merely requires that employees be trained to recognize safety hazards and trained "in the safe use or maintenance of any machinery, equipment, or tools that they may be required to operate or maintain." This directive, we feel, is inadequate because it fails to state the elements that comprise an effective training program.
By contrast, paragraph 5.17.4 of the B56.6 voluntary standard lists numerous elements of a proper training program specific to rough-terrain forklift truck operation, including explanation of the safety-related aspects of truck and component design; location and function of controls; supervised practice; oral, written, and operational performance testing; and refresher courses. ITA requests, therefore, that the final logging operations rule incorporate the training provisions contained in the B56.6 standard.
OSHA believes that the performance-based and competency-based training provisions contained in the final standard adequately address ITA's concerns, and that more specific requirements in this standard for forklift truck operator training are not warranted for several reasons.
First, the record indicates there is not a significant number of rough-terrain industrial trucks used in logging operations. Mr. Richard Lewis, testifying on behalf of APA, confirmed the limited use of rough- terrain industrial trucks in the logging industry:
The American Pulpwood Association currently employs seven technically trained foresters, two in Washington and five in division offices throughout the U.S. And collectively we've worked in the field for approximately 103 man years, and we get out on logging operations every month and sometimes once a week, and we have never, never observed the use of a rough terrain fork lift in a logging operation (Tr. OR 478-79 OR).
Second, the ASME standard to which ITA refers, B56.6, does not focus on any unique problems with the use of industrial trucks in logging operations. Conversely, the logging standard is intended primarily to deal with workplace hazards that are unique to logging operations.
Third, in any event, the final standard achieves the same training outcome as the B56.6 standard: demonstrated ability to safely operate a rough-terrain industrial truck.
OSHA is in agreement with ITA that safety in industrial truck operation is important in the logging industry as well as all other industries. OSHA believes that the issue of training of industrial truck operators is more appropriately addressed in more detail in OSHA's forthcoming proposed standard on industrial truck operator training. OSHA believes the major safety issues involving industrial truck operation can be fully and specifically examined and addressed in that rulemaking.
c. "Portability of training." The third issue raised regarding training involves the portability of training; that is, whether current and new employees who are experienced and previously trained must receive additional or supplemental training. The proposed rule would have required that each new employee be trained, regardless of whether he/she had been trained previously.
Some commenters supported the proposed requirement (Ex. 9-2, 9-3, 9-9, 9-13). Several commenters disagreed with the scope of employees that need training, stating that trained and experienced loggers should not require the same training as an inexperienced new employee (Ex. 5-21, 5-33, 5-39, 9-2; Tr. W1 63, OR 85).
OSHA believes that training is important for all loggers regardless of whether they have no logging experience or have many years of experience. The need to provide training for even experienced loggers is buttressed by the WIR survey of injured loggers, which indicated that over one third of those injured had never received training (Ex. 2-1). In addition, more than 60 percent of those injured had worked 5 years or more in the logging industry. In fact, only 22 percent of those injured had worked in the logging industry for one year or less.
At the same time, OSHA does not want to penalize those employers who already have instituted training programs that meet the requirements of the final rule or can easily be brought into compliance with the final rule. In addition, OSHA does not want to impose an unnecessary burden on an employer who hires loggers who have received the training required by this section on a prior job.
In order to eliminate unnecessary duplication of training in the final rule, OSHA is not requiring employers to retrain employees who have received training in the specific requirements of this section. The final rule only requires the employer to train employees in those elements in which the current or new employee has not been trained. For example, an employee may need to be trained to recognize hazards that are specific to the terrain in which the work is being done, and to utilize safe work practices to avoid or control these hazards. In addition, a new employee, even if experienced in logging operations, may not be familiar with various work site procedures of the new employer, such as signals to be used. It is important for new employees to be brought up to speed with the current logging practices so other members of the logging crew are not placed at risk by the actions or inactions of the new employee.
OSHA has included in the final rule a provision that each new employee and each employee who must be trained work under the supervision of a designated person until they can demonstrate the ability to perform their new duties safely. OSHA's position on the supervision requirement was supported by various hearing participants. For example, various witnesses at the hearing noted that close supervision of new employees, regardless of their experience, is a widely accepted practice in the logging industry and a means of determining whether the employee's previous training was adequate (Tr. W1 91-92, OR 95-97, 204-05, 275-76, 374, 456-57, 635-36). As such, OSHA believes that the inclusion of the supervision requirement in the final rule will provide the necessary safety to both the new and current employee, and will not impose a significant burden on the employer.
2. "Personal protective equipment." In the hearing notice OSHA raised the issue about who should pay for personal protective equipment (PPE) that employees are required to use or wear. The Agency proposed that employers provide PPE and assure it is used by employees when required. OSHA's intent in the proposed rule was that the employer provide personal equipment at no cost to the employee. PPE items included in the proposed rule were gloves, leg protection, logging boots, safety helmets (hard hats), eye or face protection, and respiratory protection.
Many commenters agreed that the personal protective equipment specified in the proposed rule should be used. (Ex. 5-32, 5-42, 5-64, 9-2, 9-15, 9-16, 9-20). Some commenters urged OSHA to require that the employer be responsible for providing all PPE (Ex. 9-3, 9-13). They said that only if the employer provided the PPE could he assure its quality, design and maintenance. However, many other commenters opposed requiring logging employers to provide certain types of PPE, and their opposition focused primarily on logging boots (Ex. 5-11, 5-21, 5-32, 5-39, 5-45, 5-51, 5-55, 5-74 through 5-92, 9-2, 9-5, 9-15, 9-17, 9-18; Tr. W1 74-75, 110, 177, OR 22, 79, 205, 262, 441, 533, 632, 701). Many commenters did not give any reason why the employer should not be required to pay for PPE. Other commenters contended primarily that employers would be financially burdened if they had to pay for certain high cost PPE, such as individually-fitted and non-reusable logging boots, in an industry that has such a high turnover rate. Other reasons for not requiring the employer to provide certain types of PPE were the use of certain PPE by employees outside the workplace, and industry custom.
Commenters noted that employee turnover in the logging industry is very high (Ex. 5-11, 5-21, 5-39, 5-49, 5-51, 5-55, 5-56, 5-63, 5-65, 5-74 through 5-92; Tr. W1 74-75, 110, 177, OR 22, 79, 205, 262, 441, 533, 632, 701). Some commenters also indicated that employees sometimes work only one or two weeks before leaving, often taking jobs at another logging establishment (Ex. 5-55, 5-74 through 5-92; Tr. OR 78). These commenters argued that it would be unfair to require employers to pay for expensive logging boots given the high turnover rate of the logging industry. One commenter said:
[I]t frightens us to think that we might be providing a $300 pair of boots for a man that's there a week (Tr. W1 74).
These commenters also contend that for some PPE, particularly logging boots, employers might have to buy new PPE every time they hire a new employee. First, this would be necessary because terminated employees do not return PPE they are issued (Ex. 5-45). Second, these commenters argue that, unlike PPE such as ear muffs and head and leg protection, logging boots are an item of PPE that cannot be reused by other employees because of size and hygienic concerns (Ex. 5-29, 5-43, 5-44, 5-62, 5-74 through 5-92, 9-1, 9-15, 9-21; Tr. OR 78). Because logging boots cannot be worn by other employees, these commenters said employers view logging boots as "personal clothing." In addition, these commenters said that even if employees did return their logging boots, new employees would be unwilling to wear used logging boots. One commenter said:
Suppose a new employee comes to work in the spring and finds he can't or doesn't want to be a logger so he hands in his $200 boots with two weeks wear and tear and leaves. Is the next guy going to accept "used" boots someone else wore? (Ex. 5-78)
The commenters said that requiring employers to pay for new PPE, primarily logging boots, for each new employee would place a considerable financial burden on employers (Ex. 5-32, 5-39, 5-45, 9-15; Tr. W1 74, OR 78, 350). They said the cost would be particularly burdensome for small establishments that comprise the vast majority of the logging industry. Their basis for this conclusion is that logging boots are very costly, ranging from $60 to $400 a pair (Ex. 5-45, 9-15; Tr. W1 74, OR 78, 350). In addition, they said employees need two to three pairs of logging boots a year. The commenters, however, did not present any financial or economic evidence as to the burden (e.g., effect on profits, sales, etc.) on the industry as a whole, and particularly small employers as a group, of providing logging boots.
One commenter said employers should not be required to pay for logging boots that are used by employees away from workplace (Ex. 5-39). This commenter said employees take their logging boots with them when they seek new employment (Ex. 5-39). He also said employees use their logging boots for hunting and cutting their own wood (Ex. 5-39). In contrast, the record shows that other types of PPE (e.g., leg protection, safety glasses and hearing protection) remain with the employer, therefore, they are not used away from the workplace (e.g., Ex. 5-32). In addition, one commenter said that these types of PPE are already being provided by many establishments as standard industry practice (Ex. 5-32).
Finally, several commenters said that employers should not be required to pay for certain PPE because the custom in the logging industry is that employees, especially piece-rate workers, provide their own PPE, particularly logging boots (Ex. 5-11, 5-24, 5-45, 5-67, 5-74 through 5-92). These commenters said that piece-rate workers provide all "tools of the trade," that includes some types of PPE. However, the record also shows that some logging establishments do provide logging boots (Ex. 5-32; Tr. W1 177). For example, one commenter said:
[T]he way we set it up is that when you're with us for one year we will buy you three pair of boots and we will supply all safety equipment.
After you are with us for one month, we will supply safety chaps, the helmet, the whole works. The first day you come on the job we will supply the helmet, a helmet with the eye protection and the ear protection (Tr. W1 177).
In most instances items such as ear plugs, safety glasses, bucking chaps or any other safety item required to work in a safe environment are provided (Ex. 5-32).
OSHA has carefully reviewed the evidence in the record and, for several reasons, has decided in the final rule to delete the general requirement that the employer be required to provide logging boots. However, the final rule does require that such boots be worn by logging employees, and holds the employer responsible for assuring that the employee has logging boots and wears them. As to the other PPE requirements specified in paragraph (d), OSHA has retained the language of the pulpwood logging and proposed standards that the employer provide such PPE at no cost to the employee.
The OSH Act imposes on employers the responsibility for compliance with standards and for providing safe working conditions for employees. This responsibility has been recognized in OSHA's personal protective equipment standards at 29 CFR 1910.132 through 29 CFR 1910.138. Section 1910.132(a) establishes the employer's obligation to provide and maintain personal protective equipment whenever such equipment is necessary by reason of the hazards in the workplace.
Section 1910.132(b) does recognize that in some limited circumstances that employees may provide their own PPE. However, OSHA emphasizes that this practice is not the norm, but rather an exception based on unusual or specific circumstances. In addition, section 1910.132(b) underscores the employer's continuing obligation to assure the adequacy and maintenance of the PPE.
The record shows that special circumstances exist in the logging industry which may make it appropriate for employees to provide their own logging boots. First, the record shows that the logging industry is highly transient, and that logging boots, unlike other PPE required by the final rule, are not the kind of PPE that can be reused. Logging boots purchased to fit one employee may not fit the next employee. It is important that logging boots fit properly or the boot may not provide the necessary protection. Therefore, based on current turnover rates in the industry, employers would have to purchase non-reusable logging boots costing $200 to $400 many times a year for newly-hired employees, even though there is a significant likelihood that these employees will remain in the job for only a short time.
Second, the record shows that logging employees tend to move from one logging establishment to another, taking their "tools of the trade" with them, particularly their logging boots. OSHA believes it may be appropriate in this situation to allow employees to take their logging boots to the next place of employment, rather than requiring the new employer to provide logging boots. Logging boots are both portable (i.e., not limited in use to or maintained at a particular workplace, like respirators for instance) and in most cases they fit only that particular employee therefore they cannot be reused by other employees. The other items of PPE required by the final rule, such as leg and head protection, tend to be both less personal to the employee and more connected to the workplace itself, and can be readily used by other employees.
Third, there is evidence in the record that employees do use their logging boots away from work. Employees come to and leave work wearing their logging boots, suggesting that the boots are used away from the workplace. In addition, commenters cited specific activities where logging boots are used away from the logging work site. The commenters did not provide any comparable evidence that other items of PPE required by the final rule are also used by employees away from the workplace.
Based on the above, OSHA has decided in the final rule not to require the employer to provide logging boots. The Agency emphasizes that it is the totality of the special circumstances in the logging industry that justify this determination. Of the reasons discussed above, none of them standing alone would provide sufficient justification for departing from the general requirement that employers provide PPE. Rather, it is the combination of these reasons and special circumstances in the logging industry that make it appropriate to allow employees to provide their own logging boots.
OSHA also emphasizes that regardless of who provides the logging boots, the final rule makes the employer responsible for assuring that logging boots are used by the employee and are maintained in a serviceable condition. In addition, in the final rule the employer is responsible for assuring that logging boots are inspected before initial use during a workshift. Attendant to this requirement, the employer is also responsible for assuring that damaged and defective equipment is either repaired or replaced before work is commenced.
With regard to the other items of PPE required by the final rule, OSHA does not believe there is sufficient evidence in the record to justify a departure from OSHA's long-established policy. Neither industry practice nor turnover rates compel the Agency to relieve employers of the obligation to pay for the other items of PPE for loggers. Indeed, evidence in the record shows that many employers are currently providing these other items of PPE (Ex. 5-32, 9-15; Tr. W1 177). The record shows that, unlike logging boots, these items of PPE tend to remain at the workplace and are amenable for use by other employees. Further, there is no evidence in the record of an established practice of employees using such PPE away from the workplace. Also, there is no evidence of established and uniform industry practice of transporting such PPE from job to job. Therefore, in the final rule, OSHA is requiring, except for logging boots, that the employer provide PPE at no cost to the employee.
3. "Leg protection." In the hearing notice OSHA raised three issues concerning leg protection for chain-saw operators: specifications for leg protection, the area to be protected, and potential disadvantages of leg protection.
a. "Specifications." The proposed rule would have required that chain-saw operators wear leg protection made of ballistic nylon or other material that provides at least equivalent protection. Many commenters supported the leg protection requirement for chain-saw operators (Ex. 5-5, 5-7, 5-17, 5-30, 5-33, 5-42, 5-45, 5-51, 5-60, 5-68, 5-73, 9-9-11; Tr. W2 126-28). Several commenters and hearing participants also supported OSHA's position that leg protection meet certain criteria (Ex. 5-30, 5-60, 5-68, 5-73; Tr. W2 126-28). Two commenters suggested that OSHA require leg protection made with KEVLAR because they believe KEVLAR provides more protection than ballistic nylon (Ex. 5-5, 5-30). One of these commenters said KEVLAR leg protection provides 50 percent more protection than ballistic nylon with a fraction of the weight and bulk, thus allowing easier movement and reducing fatigue (Ex. 5-30). This commenter also said that the U.S. Forest Service specifications call for KEVLAR leg protection. Other commenters stated that a testing protocol for leg protection should be adopted rather than specifying that leg protection be comprised of any certain type of material (Ex. 5-60, 5-68, 5-72). One commenter said OSHA should adopt the ISO or Canadian testing standards for leg protection (Ex. 9-16). However, other commenters said there was no consensus in this country regarding an appropriate testing standard (Ex. 5-60, 5-68, 5-72). One commenter proposed that the following testing standard be adopted:
[T]he protective garment must have a minimum "Threshold Chain Speed" of 2500 feet per minute for operators using chain saws with an engine displacement of under 65 cc and 3000 feet per minute for operators using chain saws with an engine displacement of over 65 cc. Further the test procedure developed and currently used by the US Forest Service [should] be adopted and defined as the test method used to measure the "Threshold Chain Speed" of safety material (Ex. 5-68).
Another commenter proposed that a different testing standard be adopted in OSHA's final rule:
I propose to replace "ballistic nylon or equivalent protection covering each leg from the upper thigh to boot top or shoe top" by "leg protective device in conformity with the standard NQ 1923-450" Protective pad for chain saw operators' trousers and leggings.(6)
Footnote(6) NQ 1923-450 is a test standard developed in Quebec Province, Canada.
This performance standard covers all the requirements for safety leggings such as the minimum coverage and a minimum performance level. This performance level is measured in conformity with the standard NQ 1923-450 "Protective pads for chain saw operators' trousers and leggings -- Determination of stopping speed and cut-through time." These two standards have been adopted by a consensus of employers, workers, manufacturers of fabrics and PPE, government and workers' compensation boards.
Other participants opposed specific criteria for leg protection performance for several reasons (Tr. W2 206-07, OR 472-75, 496-98, 513-14). First, some argued that there were no national consensus or State standard to provide guidance on specification standards. Second, others commented that a specification standard limited to "ballistic nylon" was too restrictive (Ex. 5-30; Tr. W2 189-90). Third, others stated that there are no standards establishing specific performance criteria of the material for leg protection. For example, APA testified:
APA does not know of any state leg protection apparel standard in existence or under development. I can report to you that our association has a special committee working on the development of a safety apparel standard, and this committee has generally accepted the Quebec Research Institute testing method, and now it's kind of rewriting this testing method to meet the American Society of Testing Materials guidelines. So the committee is close to completing its work on endorsing an approved test procedure.
The next step in the committee's charge is to develop a voluntary performance testing standard that would apply for leg protection, safety boots and other apparel. That's going to be a little way down the road. It's own opinion that the work of this committee is not yet mature and that OSHA should probably not attempt to include any specific performance testing standard for leg protection or other safety items at this time. They're recommending that you defer the inclusion of a specific leg protection performance testing standard until the next revision of the OSHA logging regulations, whenever that might be. It may be ten years from now or fifteen years from now. At this point in time, we feel it's much more important to get any safety equipment worn, rather than to worry about whether or not it meets specific performance standard (Tr. OR 472-75).
APA also testified that regional differences in chain-saw operations also precludes a specification standard for leg protection:
I would also say in general our feeling is that logging is so different obviously in every part of the country that often we've got to have lead-way for the types of leg protection that might be appropriate for a person working in the swamps of Louisiana as opposed to the mountains of Montana. Not that we know what those differences might be, but that in general we feel like the loggers in those areas should be able to have the opportunity to design or approve a leg protection that would be appropriate for their situation (Tr. OR 207-08).
The record shows that leg protection for chain-saw operators is essential to prevent injuries. According to the WIR survey, 64 percent of injuries to chain-saw operators were due to kickback, an accident that usually results in injury to the leg (Ex. 2-1). The WIR survey also indicates that 22 percent of all injuries reported were to the leg.
OSHA believes that leg protection made of ballistic nylon or equivalent material is effective in preventing injuries to the leg. A study by the French Farmers' Mutuality indicates that ballistic leg protection was effective in preventing 12 leg injuries in 91 loggers studies over an eight-month period (Ex. 37). Testimony and comments show, however, that there is no accepted testing measurements standard in this country on leg protection performance. In addition, the foreign standards that do exist have not been generally accepted or used in this country. Nonetheless, OSHA believes that a performance-based requirement for leg protection to provide protection against contact with a moving saw chain will provide flexibility for employers while encouraging technological innovation, such as the work by APA.
For these reasons, in the final rule OSHA has adopted the proposed provision requiring that leg protection be worn on each leg by all chain-saw operators. However, OSHA has revised the final rule to require that where the employer provides leg protection made of material other than ballistic nylon, the employer is responsible for demonstrating that it provides protection which is at least equivalent to ballistic nylon, such as KEVLAR. This requirement ensures that employees are protected against moving saw chains, while at the same time providing flexibility for the employer.
b. "Area to be protected and disadvantages of leg protection." The other issues raised regarding leg protection concerned the parts of the chain-saw operator's body that should be covered and its effect on mobility and other potential safety disadvantages of wearing leg protection.
The proposed rule specified that leg protection extend from the upper thigh to the boot or shoe top. Many commenters supported the proposed rule (Ex. 9-2, 9-3, 9-4, 9-5, 9-11, 9-13, 9-15, 9-16, 9-20). One commenter said that the proposed rule followed the requirements of the European draft standard (Ex. 9-11B). Some commenters said the proposed rule was not protective enough and said the equipment for protecting chain-saw operators should be expanded (Ex. 5-14, 5-68). One of these commenters said:
[W]e would recommend that a standard be developed defining the minimum coverage these garments should have, for example from crotch to ankle bone with a minimum width measured at the knee of 9.5 (Ex. 5-68).
The other commenter recommended leg protection be extended to also provide foot protection that is cut resistance to a chain saw (Ex. 5-14). This commenter said that the additional foot covering protection would also assure that the entire leg and ankle were covered if the chaps were not long enough to cover the boot top.
Several commenters, however, said leg protection should be limited in the final rule (Ex. 5-17, 5-45, 5-56, 5-65, 9-1; Tr. OR 227, 633-34). Most of these commenters said that OSHA should not require leg protection to extend from the upper thigh to the boot or shoe top. First, these commenters said that extending leg protection from the thigh to the boot or shoe top was not necessary because most of the injuries occur to the area around the knee. For example, one commenter stated:
A person using a chain saw would have to do some pretty spectacular gymnastics to receive a chain saw cut more than 4" below the knee. Once again, we have no recordable injuries for the last 7 years involving chain saw cuts more than 4" below the knee (Ex. 5-45).
Another commenter stated that leg protection was not necessary for climbers and bucket truck operators:
The major hazards for these individuals are cuts to the upper body from saw kick-backs and falling material. Leg protection should not be required, however the use of some of the new lighter and more pliable pads sewn into pants should be encouraged whenever feasible (Ex. 5-19).
Second, commenters stated that the small risk of injury to the lower leg was outweighed by the risks due to lack of mobility caused by full-length leg protection. For example, one said:
We have received numerous comments from our membership throughout the country who use leg protection (or chaps) suggesting that chaps only extend to just below the knee. Chaps that extend to the boot top, or shoe top, as required in proposed Section (e)(1)(ii), impede mobility and cause a greater safety hazard than the standard works to protect against. Our members believe that the highest risk for chain saw cuts occurs from the knee to the thigh. Thus, chaps that cover the leg from the upper thigh to just below the knee are sufficient (Ex. 5-56).
Third, one commenter testified that leg protection to the boot or shoe top would pose an unreasonable financial burden on employers (Tr. OR 633-34). According to the participant, different loggers use the employer-provided leg protection each day. Because all loggers are not the same height, the leg protection provided may not reach to the boot or shoe top or may be too long for other loggers to wear safely. This participant suggested that the only way an employer could guarantee compliance with the required fit of the leg protection would be to provide fitted leg protection to each individual logger. The participant recommended the following:
We suggest [leg protection extend] to below the knee because these come in various lengths. And certainly in those times you can't always stretch a pair of chaps that somebody maybe having to put on to operate a chain saw all of a sudden to get it down to the boot top (Tr. OR 633-34).
Fourth, some commenters stated that leg protection that extends to the boot or shoe top might cause mobility problems, and would therefore be hazardous for chain-saw operators (Ex. 5-19, 5-20, 5-55). For example, one commenter stated:
Rigging crews will occasionally use a power saw. If they are required to wear leggings, it could be more dangerous than not having anything. This is one of the reasons rigging crews prefer suspenders rather than a belt because you don't get "hung up" so often. Anything that is going to hinder mobility is a problem (Ex. 5-20).
Another commenter recommended that OSHA limit leg protection to just one leg for cutters (i.e., the leg in front that is used to maintain balance during cutting) (Ex. 5-65). However, this commenter also admitted that any chain-saw operator who is clearing brush needs to wear protection on both legs because the saw is continuously and perilously close to either leg at all times.
Other commenters said leg protection should be limited because heat and humidity could increase worker fatigue or cause problems that might exceed the benefits of leg protection (Ex. 5-25, 5-26, 5-59, Tr. W2 206-07). For example, one commenter stated:
OSHA proposes that employees are assigned duties that require an operator of a chain saw to wear ballistic nylon or equivalent protection that must cover each leg from the upper thigh to the boot top. This does not take into consideration the various temperature factors which could increase fatigue. Fatigue is a major cause of injuries. As stated, on Page 11802 [of the preamble to the proposed standard], Alabama and Georgia are states that are among the leaders in logging activities. Due to the high heat and humidity of these states, the requirement to wear ballistic nylon chaps could possibly increase injuries as a result of the fatigue caused by hot, humid summer weather (Tr. W2 206-07).
Clause (e)(1)(ii) should allow exceptions to the wearing of leg protectors for all circumstances (not just climbers) in which there is a greater hazard than working without them (for instance, fatigue from heat and humidity or loss of mobility in heavy undergrowth etc.). It would be even more appropriate if the wearing of "leg protectors" were made optional, depending on the individual work circumstances. One study, (The Role of Personal Protection in the Prevention of Accidental Injuries in Logging Work, T. Klen and S. Vayrynen, Journal of Occupational Accidents, 1984) concluded that personal protectors have not been very effective and that this was a result of a phenomena known as "risk compensation", the tendency of workers to be more careless when they believe that personal protectors will prevent injury (Ex. 5-59).
OSHA has carefully reviewed the record on this issue and, for several reasons, has decided in the final rule to retain the requirement that leg protection cover the upper thigh to the boot top. The record clearly shows that chain-saw operators face a significant risk of injury due to kickback. The WIR survey indicates that 64 percent of all chain-saw injuries reported were the result of kickback (Ex. 2-1). Further, the WIR survey shows that almost 30 percent of all injured employees were not wearing leg protection at the time. Also, almost one-fourth of all injuries reported were to the leg.
According to the Maine BLS survey, chain-saw accidents accounted for 26 percent of all reported injuries and more than half of those accidents involved chain-saw kickback.
OSHA does not believe the record supports the commenters' claims that chain-saw injuries only occur to the area around the knee. Injuries to the lower leg as well as the knee are significant. The WIR survey indicated that nine percent of all employees reporting injuries were hurt in the lower leg or ankle, while 11 percent were injured in the knee.
The available accident and injury data also do not support the commenters' argument that lack of mobility is a greater hazard to chain-saw operators than lack of leg protection. To the contrary, the data clearly show that the risk of chain-saw kickback is far more serious than any of the potential dangers that have been suggested with regard to leg protection (Ex. 2-1). For example, according to the WIR survey, none of the chain-saw operators said they had been injured because they did not have enough time to retreat from the falling tree. On the other hand, almost two-thirds of the chain-saw operators were injured because the chain saw kicked back. In any event, OSHA believes that other provisions in the proposed and final rule will adequately address concerns about mobility. For example, the requirement to plan and clear retreat paths before commencing cutting will protect employees who would be at risk from decreased mobility.
Finally, OSHA believes the new innovations in leg protection technology address the commenters' concerns about costs, mobility, fatigue and heat stress. First, the record shows that full-leg protection now being manufactured is light-weight and relatively cool (Ex. 5-68, 9-4). The record also shows that light-weight leg protection that is inserted or sewn into logging pants is now available. According to one commenter, these new innovations make leg protection tolerable even in the hot and humid southern logging regions. OSHA believes these innovations will reduce fatigue and heat stress and will prevent mobility from being impeded. Second, the record shows that foot coverings are available that can supplement protection in those instances where leg protection may not fully cover the logger's lower leg. These devices will provide adequate protection in those isolated instances where leg protection may not be long enough without requiring the employer to purchase leg protection in many different sizes.
the number of employees who must have first-aid training, and the elements required as part of that training, such as cardiopulmonary resuscitation (CPR).
a. "Number of employees trained." The proposed standard specified that all supervisors and all fellers be adequately trained in first aid methods as prescribed by the American Red Cross, the Mine Safety and Health Administration or an equivalent training program. In addition, the proposed rule included a provision that at least one person in the "operating area" have first-aid training.
OSHA received many comments regarding the number of employees who should be trained in first aid in order to provide adequate protection. There was no consensus among those commenters on the appropriate number of employees who must be trained. Their recommendations about the number of employees who should be required to receive first-aid training covered a wide range of options, including the following:
1. All employees (Ex. 5-7, 5-17, 9-15, 9-20; Tr. W1 175, W2 209, OR 100, 375, 393, 681);
3. All supervisors and enough additional personnel so each work site would have a trained employee (Tr. OR 21);
4. All supervisors and fellers, plus two additional employees on a logging job (Ex. 5-54; Tr. OR 647);
5. All supervisors, fellers, and one-fifth of remaining crew members (Ex. 9-19, Tr. OR 282);
6. All supervisors, fellers and one-fourth of remaining crew members (Tr. OR 206); and
Commenters who recommended first aid training for a limited number of employees, said that training all fellers or all other employees was excessive since the proposed rule would also require employees to work within visual or audible contact of another employee (Ex. 5-36, 5-55). Another commenter said that requiring all fellers to be trained would be duplicative since more than one feller may work at a work site (Ex. 5-63).
Other commenters said they already provide first-aid training for each employee:
Everyone -- all the people on our crew are trained [in first aid] on a rotating basis. Now, the fellow that's been with us six months, he has not been to the first-aid class yet. Also, one of the -- I believe it's in with the Nortim Corporation, the Nortim self insured, it is one of the regulations that we do have people on the job that are versed in first aid (Tr. OR 174).
Along with overall safety training, I feel that required first aid training for all employees is simply common sense (Tr. OR 393).
Other commenters indicated that they are providing first aid training to a substantial portion of employees, in part because the company's logging operations are in isolated locations in Alaska:
Mr. Lesser: Using the voluntary nature offering the first aid, do you get a lot of volunteers? What percentage of the work force is trained in first aid? Mr. Bell: I'd say 35 percent (Tr. OR 375).
As discussed above, there is no dispute that logging is a hazardous industry. All data sources in the record show that a significant number of accidents occur in the logging industry and that the severity of injuries sustained by loggers is greater than that suffered by employees in other industries. Loggers often work in isolated locations that are far from hospitals or health care providers that sometimes are accessible only by helicopters or vehicles designed to operate on the most rugged terrain (Ex. 9-20; Tr. OR 21). Accordingly, loggers need to be trained and equipped to handle the significant number of severe injuries that might arise. In many instances these trained employees will be the only persons available to render assistance at a critical time.
OSHA believes that first aid training for only a select few individuals, such as supervisors and fellers, is not adequate to ensure that injured loggers receive first aid that is timely and appropriate. First, when only a few selected employees are trained, they may not be close enough to the site of the accident to render assistance in time. The WIR survey indicates that more than one-half of all injuries reported occurred at cutting sites, that in most cases are remote from landings and from medical facilities (Ex. 2-1). The WIR survey is consistent with the OSHA FCI study, that indicated that more than 70 percent of logging employees killed were working at cutting sites (Ex. 4-61). One hearing participant reinforced this problem:
The rigging crew is often 1,000 feet and sometimes 5,000 feet from the landing. The work site is usually on rough, steep ground, and these workers often use hazardous cutting implements such as axes and chain saws. If the first aid trained person and the first aid kit are in the yarder, that can be 15 minutes or more from where the worst exposure is (Tr. OR 21).
In addition, since the final rule allows employees to maintain contact with another employee by visual or audible contact, an employee may be miles from the contact person when radio communication is used. In such cases, the contact person may not be able to provide immediate first aid assistance.
Second, limiting first aid training to all supervisors and some additional personnel may not be adequate when supervisors are not at the work site when an accident occurs. According to the State of Washington, logging supervisors usually have two or more logging crews working directly for them (Ex. 5-34). These logging crews are often dispersed over five square miles or more. In addition, in larger operations, foremen usually see each crew only once a day and rarely for more than one hour of the workshift. Another commenters said in his experience it was not uncommon to find a group of employees working in a location without a supervisor and no other employee in the group has a current first aid certificate (Ex. 91-5).
Third, a logger's injuries may be of such severity that several persons trained in first aid may be needed to stabilize the injured employee and treat the injury. If only one employee is trained, the first aid assistance may not be sufficient.
Fourth, when only one employee in a work site is trained, as the proposed rule contemplates, first aid will obviously be inadequate if the trained person is the one who is injured. (Although first-aid training does include instruction in self-aid, the injuries may be severe enough to incapacitate the trained employee.) For example, in a small working crew that has no supervisor, the feller may be the only employee who is trained in first-aid. If the feller is injured, there may be no other logger in that work crew who is trained to provide first aid. The WIR survey indicates that one-half of all loggers who were injured were performing felling tasks (i.e., felling, limbing, bucking) at the time.
Fifth, when only a few employees receive first-aid training, there is a greater likelihood that there could be crucial gaps in coverage due to sickness, vacations, other leave, or employee turnover of those few who have received training. In addition, an employer may not know from day to day if an employee will be present that is holding a current first aid certificate (Ex. 5-7).
OSHA notes that some commenters opposed requiring every employee to have first-aid training because of the transient nature of the logging industry. OSHA finds that the commenters' argument does not support the position that fewer employees should be trained. If there is high employee turnover, it may be the trained employee who is not employed any longer. If work continues without a fully-trained person while a first-aid replacement is being trained, employees may be at great risk. By contrast, if work has to be stopped until a replacement can be trained, the employer could incur costs which could be prevented by having adequate first aid coverage in advance. If all employees working in the logging industry are required to have first-aid training, a pool of trained employees will always be available to employers for hiring.
Fifth, requiring that each employee be trained eliminates confusion and may be less administratively burdensome than making a daily check and rescheduling of work assignments to assure that supervisors, fellers and some additional number of employees in each operating area hold current first aid training certificates.
To ease the training burden for employers, the final rule does not require that the first-aid training be provided by the employer. Rather, the final rule requires that the employer assure that each employee performing logging operations receives or has received first-aid training and that the first-aid training/certificate is current. For example, as one means of complying with the final rule, the employer could make first-aid training a condition of hiring or continued employment. The employer would be free to hire only those persons who had previously obtained first-aid training and kept their certificate current. In addition, when there is employee turnover, trained employees will be able to bring their first-aid skills from one workplace to another and thus relieve the training burden for the new employer.
OSHA is aware that some employers currently provide first-aid training and most likely will continue to provide such training. OSHA is also aware that a number of organizations and schools provide first-aid training that would meet the requirements of Appendix B. For example, the American Red Cross, the Mine Safety and Health Administration, State extension services, community colleges, and adult education programs all provide first-aid training that includes CPR. As such, OSHA does not believe that the requirement of assuring that all employees have received first-aid training that remains current will pose an unreasonable burden on any employer or employee.
b. "Elements of first-aid training." In the hearing notice, OSHA requested comment on the specific elements, such as CPR, that should be included in first-aid training. In the proposed rule OSHA did not specify the basic elements in which supervisors and fellers must be trained. Rather, OSHA proposed that first-aid training meet the requirements of courses provided by the American Red Cross, MSHA or an equivalent training program.
Several commenters recommended that OSHA require CPR training as part of required first-aid training (Ex. 5-42, 5-49, 5-50, 9-2, 9-19). Both NIOSH and the U.S. Dept. of Interior supported the CPR training requirement. Because loggers, especially those deep in the woods are not close to medical facilities during the "golden hour" where resuscitation may save a person's life, OSHA agrees with the commenters that it is essential that all loggers be able to perform CPR. Therefore, in the final rule OSHA has included a requirement for annual CPR training.
In addition, OSHA has specified other basic skills and knowledge in Appendix B (mandatory) that are important for providing aid to injured loggers in isolated settings. OSHA is aware that there are many well- recognized first-aid programs that have broad-based curricula which already satisfy OSHA requirements.
5. "Visual and audible contact." In the hearing notice OSHA requested comment on the maximum time and/or distance separation between employees. In the proposed rule, OSHA included a requirement that employees work within visual or audible contact of another employee, so that someone would be able to respond quickly in case of an accident or other emergency. The proposed rule prohibited the use of engine noise, such as from chain saws, as a means of contact. Various State logging standards also prohibit the use of chain-saw noise as a means of signaling (Ex. 2-17, 2-18, 2-19, 2-21, 2-22, 38J, 38K).
OSHA received many comments on the contact and signaling provisions. Many commenters testified that the proposed contact requirement is necessary (Ex. 5-14, 5-17, 5-27, 5-74 through 5-92, 9-2, 9-3, 9-5, 9-13; Tr. W2 197-98). One commenter said:
We think that visual or audible contact is important and will save lives. There are also electronic devices, some sophisticated and some like citizen band radios, that can be used by forest workers to maintain audible contact by electronic means. We recommend that the existing proposed language be retained but modified perhaps to allow audible contact by electronic means (Tr. W2 197-98).
Certain commenters urged OSHA to make the contact requirement stricter than that proposed. One commenter said employees in solitary jobs also need to remain in contact and, therefore, should be provided with two-way radios (Ex. 9-15). Another commenter said OSHA should require employees to remain within visual contact of another crew members (Ex. 9-20). Finally, two commenters recommended that OSHA require employees to work within normal hearing or calling distance of another employee (Ex. 9-19; Tr. OR 679-81).
However, several commenters expressed various concerns about the contact provision, and particularly the prohibition against chain-saw noise as a means of contact. First, some participants said the requirements would have an adverse impact on small employers, especially employers with work crews consisting of three or fewer loggers (Ex. 5-21, 5-28, 5-35, 5-49, 5-53, 5-54, 5-70). For example, one commenter said:
This requirement may adversely affect the livelihood of many small-scale loggers in the South who may work alone in the woods, or operate a single mobile ground skidder or felling machine and are frequently out of contact with other phases of the logging operation (Ex. 5-28).
My experience has been loggers will keep track of their fellow workers the best they can but, due to the nature of the job, individuals will be separated for certain lengths of time. To require loggers to be within signaling distance of one another will preclude the existence of one and two man log crews, working in thick brush, working in hilly topography, skidding long distances, the use of ear plugs or working with loud machines (Ex. 5-70).
Second, some commenters believed the contact requirement conflicted with the proposed requirement to maintain a distance of two tree lengths between work areas (Ex. 5-12, 5-29, 5-4, 5-67, 5-70). These commenters said that a separation of two tree lengths between work areas might make it impossible to maintain contact due to saw noise and obstructions such as hills or vegetation. One commenter explained:
If this code goes through and is enacted, it would change the timber falling industry in Alaska. Southeast Alaska is a relatively new geological area. We work on steep ground that is broken up by draws, gullies, cliffs. We have our timber fallers work together as partners. One works in one strip or one area of the hillside and the other one works in another area of the hillside. For safety reasons, our company requires that they work at least three tree lengths apart. And often with the broken up terrain, that precludes visual contact (Tr. OR 353).
Third, comments were received on the prohibition of chain-saw noise as a signaling device. Some participants supported the prohibition (Ex. 5-27, 5-34, 5-42). Other commenters argued that chain-saw noise is currently being used as a means of contact in the logging industry and should be allowed in the final rule (Tr. W1 65; OR 86, 353-55, 356-58, 384-85, 694-96). For example, one commenter said the sound of chain saws is an indicator that someone is working at a specific location (Tr. W1 65). Another commenter stated:
[W]e have been counting on chain saw noise for years. Chain saw noise is possible, and by the way, that's my most dangerous part of my job is to do a safety inspection or to go up and check on cutters in a strip, to approach cutters. And I listen to the saw. And I can tell when they are putting a cut into a standing tree or bucking a log with the chain saw noise. If we are not allowed to use chain saw noise as audible contact, that means we may have to go back to double jacking which is a faller and a bucker working in tandem (Tr. OR 353-55).
This participant also said that chain-saw noise should also be permitted because 103-decibel chain-saw engines render 92-decibel personal alarm systems inadequate as means of audible contact (Tr. OR 355).
Fourth, several commenters urged OSHA to adopt various alternatives and modifications to the proposed contact requirement (Ex. 5-54, 5-55; Tr. OR 670-81). For example, commenters suggested that OSHA replace the contact provision with a "check-in" requirement:
In West Virginia, a cutting crew often consists of a worker who fells and limbs the trees and a worker who operates a skidder. Consequently, it is often necessary that the feller be left alone in the woods, without audible or visual contact with another worker, for short periods of time while the skidder operator is making the trip to the log landing. Also, it is common practice for workers to be constantly checking on one another. Upon his return from the landing, the skidder operator immediately checks on the feller; and, the feller, if the skidder operator does not return in the normal time span, will check on the skidder operator.
Considering the common small cutting crew size, the practice of constantly checking on one another, and the difficulties involved in using an audible signal capable of being heard over distances, over machine noise, and through hearing protection devices, it is our recommendation that this aspect of the Standard be changed to allow a worker to be out of "visual or audible signal contact with another person" for short periods of time. Due to the normal time involved for transporting a skidder load to the landing, unhooking, and returning, we recommend that this short time period be established at 20 minutes (Ex. 5-54).
Other commenters also suggested that OSHA allow employees to be out of contact from other employees for short periods of time (e.g., 15 to 20 minutes, the time to take a load to the landing and return) (Ex. 5-54; Tr. OR 670-81).
OSHA has decided in the final rule to retain the requirement that employees work within visual or audible contact of another employee. As discussed above, most commenters indicated that remaining in contact is important to the safety of loggers. Several commenters said that supervisors use chain-saw noise to identify where and whether an employee is working. However, they did not provide evidence that chain-saw noise provides an effective means of communicating information from the employee or from the supervisor. For example, data and information available to OSHA indicates that even though chain-saw noise is currently used as a means of maintaining contact, there are still reports from OSHA case file investigations of loggers being injured and not being discovered until after the shift has ended (Ex. 1). In addition, chain-saw noise does not provide the cutter with an adequate means of communicating with others in the event they have become injured or are in other trouble. Since all chain-saw noise indicates is whether an employee is working, the cutter must wait until another employee recognizes that the lack of noise means the cutter needs assistance. This may delay rendering that assistance. OSHA believes the cutter, not just the supervisor, needs to have a method for communicating when necessary. Radios and telephones are modern communication methods that are increasingly used in this logging industry. These methods, unlike chain-saw noise, provide immediate two-way communication.
Although OSHA has decided to retain in the final rule the prohibition against use of chain-saw noise alone as a means of contact, the final rule does provide employers with a great deal of flexibility in maintaining contact with employees. First, permitting radio communication to be used as a means of contact allows contact to be maintained while at the same time maintaining a two tree-length distance between adjacent occupied work areas. Second, permitting contact to be maintained by radio or whistles allows employees to work alone rather than limiting employees to working in teams that are within visual distance of each other. Allowing radio contact will also provide flexibility for small radio crew operations when visual or voice contact may not be possible. Third, OSHA also believes that permitting radio contact will not be unduly burdensome for the industry since many companies already are utilizing electronic communications (Ex. 5-27; Tr. W2 227).
With regard to the issue of equipment noise preventing radio communication, OSHA notes that radios are available with ear phones that fit inside hearing protection muffs. Where such ear phones and hearing protectors are provided, equipment noise will neither interfere with communication nor should result in occupational hearing loss.
Because contact may be maintained by radio, OSHA has removed the exception to the contact requirement for "single employee assignments." OSHA believes that radio communication already is necessary in order for many of those single employee jobs to be performed (e.g., watchman). As such, OSHA does not believe that extending the radio contact requirement to all logging operations will unduly burden employers, while at the same time it will provide important protection for all loggers.
6. "Chain-saw protective devices." In the proposed standard, OSHA did not include a provision requiring chain saws to be equipped with chain brakes or other devices that prevent kickback. The proposed standard also did not require chain saws to meet any performance criteria of any standards-setting organizations. Rather, OSHA proposed only to require employers to inspect and maintain chain-saw safety devices when chain saws were so equipped. The hearing notice requested further comment on the adequacy of various chain-saw safety devices and what regulatory action OSHA should take in the final standard regarding chain saws.
There was no dispute among commenters that chain-saw protective devices are necessary to prevent operators from being injured. The record shows that the chain-saw bar can kick back in less than 0.3 seconds (Ex. 4-172). The record also shows that average human reaction time, however, is only 0.75 seconds (Ex. 4-172). That means in many cases the operator cannot take action quickly enough to avoid being struck by the chain saw. The record also shows that many injuries in the logging industry are the result of chain-saw kickback. According to the WIR survey, 20 percent of all logging injuries reported involved chain saws and almost two-thirds of those injuries were the result of chain-saw kickback (Ex. 2-1). The Maine BLS survey also shows that chain-saw injuries account for a significant number of logging injuries (26%) in that State (Ex. 4-175). Similar to the WIR survey, the Maine BLS survey indicated that over half of all chain-saw accidents resulted from kickback.
a. "Devices to prevent chain-saw kickback." Information submitted to the docket indicates that there are four devices that exist to reduce or minimize the risk of injury due to chain-saw kickback. These devices are chain brakes, bar tip guards, reduced-kickback guide bars, and low- or reduced-kickback saw chains. Information about these devices was taken from a 1983 report prepared for the Consumer Product Safety Commission (CPSC) (Ex. 5-13) as well as comments to the proposed rule. The discussion that follows explains the different devices and their advantages and disadvantages.
The "chain brake" is a device for stopping the saw chain when kickback occurs before the chain can contact the operator. The most common type of chain brake is actuated when the operator's hand or arm hits the brake lever that is located immediately ahead of the front handle. When kickback occurs, the chain brake may either be actuated by the operator's hand pivoting forward on the handle, or by the hand being dislodged from the handle, striking the brake lever. According to the CPSC report, chain brakes, unlike new technology chains and safety guide bars, do not have any adverse effect on the cutting effectiveness of chain saws. The record also indicates that one of the advantages of chain brakes is that, unlike other protective devices that can be removed, the chain brake is an integral part of the saw and is difficult to remove (Ex. 4-174). As such, chain brakes deter the disabling of the kickback prevention system by the operator (Ex. 5-19).
The "bar tip guard" (or nose tip guard) is a device that is bolted or screwed onto the tip of the bar. Its primary function is to prevent contact with the tip of the bar from which kickback is generated. Commenters identified three problems with bar tip guards. First, one commenter said bar tip guards are not usable in felling and bucking of some trees (Ex. 9-16). This commenter said forward leaning trees usually require the bar tip to fell the tree safely.
Second, two commenters said the hazards associated with bar tip guards outweigh their protective value (Ex. 5-42, 9-20). According to NIOSH bar tip guards reduce kickback danger only under certain conditions, that is, when the log or limb is elevated and does not have any off-angle to cause pinching of the bar (Ex. 5-42). NIOSH concluded that the bar tip guard may pose greater hazards than saws without tips because they require the bucker to maintain working stances that are less stable. The other commenter said that the bar tip can get caught on limbs. Third, the major problem with bar tip guards is that they are removable (Ex. 5-13, 5-13H). According to the CPSC report, the bar tip guard is removed by operators because it reduces the utility of the saw by preventing boring and the cutting of any logs that are wider than the guide bar. Evidence in the record indicates that bar tip guards are being removed by a significant number of operators:
Only about half of the operators of saws so equipped always use such guards. About 36 percent never use them, and about 12 percent sometimes take them off the guide bar. Thus, while nose tip guards are effective anti-kickback devices, many operators remove them from their saws (Ex. 5-13).
The Portable Power Equipment Manufacturers Association (PPEMA) submitted testimony from CPSC's own proceedings, which also acknowledged the extent to which bar tip guards are removed from chain saws:
[T]he Commission received the benefit of a survey that was done on the part of the NESDA, National Equipment Servicing Dealers Association. They on their own surveyed hundreds of their dealers. * * * [T]heir survey corroborated my own personal observations, namely, that in real life practice users of chain saws in the droves are simply not using that nose tip, and while if it were used or if it were permanently established on the saw, it would be a complete barrier to kickback, the fact of the matter is because it's temporary and because it is removed, because in my view it affects in the case of the dealers, as you'll see from their comments, it affects the efficacy of the saw, it is taken off, and as a result provides no protection, zero.
Just to cite from the survey, 73.5 percent of the responding dealers to the NESDA survey reported that only zero to five percent of the chain saws brought into their shops for repair, of the ones that were originally equipped with the nose guards, that 73.5 percent of the dealers responded that only zero to five percent had nose guards in place. Another 9.3 percent reported that six to ten percent of such saws had nose guards in place, leaving only 17.1 percent of the dealers who put the figure of nose guards in place at something more than ten percent.
The unmistakable conclusion is that the overwhelming majority of consumers are removing the nose guards from their saws and not putting them on in the first place.
The survey also revealed that almost no consumers are interested in replacing nose guards that are not in place. Eighty-eight percent of the dealers, 88 percent, stated that zero percent of their customers wanted replacements, and an additional 8.9 percent put the replacement request at a mere one to five percent (Ex. 5-13H).
There are two different types of "reduced-kickback guide bars". One is designed and manufactured with a taper from the back of the bar and has a correspondingly small radius of curvature at the tip of the bar. This type of bar is commonly referred to as a narrow nose bar. The other type of reduced kickback guide bar has a reduced radius nose but achieves its taper from the fact that the top and bottom edges of the bar a asymmetrical (the top and bottom edges are curved and have a different radius of curvature). This type bar is commonly called a banana bar because of its peculiar shape. According to the CPSC report, both the narrow nose bar and the banana bar have significant drawbacks, primarily in the useful life of the bar and chain and the efficiency of the chain saw. The narrow nose bar, because of its reduced radius of curvature at the tip, receives more stress at the tip, thereby requiring more frequent replacement. Because of its asymmetrical design, the banana bar cannot be merely turned over when the bottom edge of the bar becomes worn, but must be replaced. This type of bar also reduces the ability of the operator to use the saw for boring. This disadvantage is compounded if the saw also is equipped with a low- or reduced-kickback chain.
[T]he use of low-kickback guide bars results in a tradeoff of some reduction in utility for an improvement in safety. Industry sources have suggested that this may be an acceptable tradeoff for the less powerful saws which are probably purchased by consumers. Since the tradeoff involves a marginal improvement in safety, however, manufacturers are probably less willing to equip the more powerful, more performance oriented saws with the low-kickback guide bars (Ex. 5-13).
Finally, the potential for kickback can be reduced by the "low- or reduced-kickback chain". This chain is commonly referred to as new generation chain. Low kickback chain can be identified by an idler or spacer link between each of the cutting links. In other words, the chain has a left hand cutter link on the right side of the chain, followed by a spacer link, followed by a right hand cutter link on the left side of the chain followed by another spacer link before the sequence begins again.
Although the low-kickback chain can reduce kickback energy by 40 to 90 percent, there are drawbacks to its use, according to the CPSC report. These drawbacks include: (1) New technology chains generally exhibit some loss in cutting efficiency (speed and ease of cutting), (2) these chains make cutting more tiring for the operator thereby causing more operator fatigue, and (3) the loss of cutting efficiency may adversely affect the life of the chain. The loss of cutting efficiency has been estimated to be anywhere from a 10 to 25 percent. OSHA has no estimates of the increase in operator fatigue and the degradation in the service life of the chain.
Of the four protective devices, most commenters said OSHA should require chain saws to be equipped with a chain brake because it is the most used and most effective for professional logging operations (Ex. 4-175, 5-17, 5-19, 5-21, 5-27, 5-34, 5-42, 5-46, 9-3, 9-4, 9-13, 9-15, 9-18, 9-20; Tr. OR 536-37). Several of these commenters said that all chain saws used at their establishments are equipped with chain brakes. These commenters also said that almost all manufacturers now produce chain saws with some kind of chain brake and that almost all chain saws manufactured for commercial logging operations now have chain brakes (Ex. 5-19; Tr. OR 185-87, 536). In addition, one commenter said that manufacturers have improved earlier mechanical problems with chain brakes so that they are reliable in preventing kickback (Ex. 9-4). With regard to the effectiveness of chain brakes, one commenter said:
The chain brake is, I'd say, one of the most important chain saw protective devices developed in modern history. In Montana all of our current professional saws are equipped with chain brakes. Most of our saws are in the four to six cubic inch range, primarily, Stihl and Husqvarna with a few other minor brands and seldom on job visitations do I find anyone who has disconnected the chain brake. It's so uncommon that it's startling when I find that any more.
The other protective device that I see that's had substantial improvement is the throttle lock mechanism where it has to be held down with your palm in order for the trigger to operate. For years it was common that the first thing a logger did was he got a roll of black tape and he would tape that down so you didn't have to operate that. Through our progressive Montana Sawyer Safety Program and other efforts I brag to people that we now have developed a genetically superior timber faller in Montana that can now squeeze with his palm and pull with his trigger finger at the same time.
These two chain saw protective devices combined with leg protection have had a significant impact on the reduction of accidents in Montana relative to timber falling. In fact, it's been so significant that I don't even consider the other options of even any application to logging when we talk about the low kickback bar, the low kick-back chains and even the bar tipped guards. They may have individual special application but I'm thoroughly convinced with the chain brake, the throttle lock and the leg protection we've so significantly reduced chain saw injuries that any further attention is maybe some wasted effort and just further develops additional conflict (Tr. OR 536).
Mr. David Kludt, Logging Safety Program Supervisor for the State of Idaho, testified that 10 percent of all logging accidents each month are the result of chain-saw kickback and that these accidents could be drastically reduced by the use of chain brakes (Ex. 9-4).
In addition, Maine BLS says that chain brakes have played a significant role in lessening the effects of chain-saw injuries in that State (Ex. 5-174). They reported that only 13 percent of chain-saw accidents where chain brakes were present resulted in hospitalization, while nearly half of all other accidents required hospitalization.
Some commenters, however, disputed the effectiveness of chain brakes for preventing kickback (Ex. 5-39, 5-59, 5-66). One of these commenters said chain brakes were not reliable and required frequent maintenance, however, no evidence or data were presented to support the contention (ex. 5-59). Another commenter said that a study showed that while chain brakes reduced kickback by 80 percent, non-kickback accidents showed a 400 percent increase (Ex. 5-66). However, the commenter also admitted that the study was from 1972 and that chain brakes had undergone significant improvement since that time. Another commenter said chain brakes, depending on their design, could become entangled in the brush the saw is clearing and create a safety hazard (Ex. 5-39). The WIR survey, however, does not support the commenter's argument. None of the chain-saw operators reporting injuries said their chain brake had become caught (Ex. 2-1).
b. "OSHA regulatory action." Many commenters said that the final rule should include requirements for chain-saw protective devices (Ex. 5-17, 5-19, 5-21, 5-27, 5-34, 5-42, 5-46, 9-3, 9-4, 9-13, 9-15, 9-18, 9-20; Tr. OR 536-37). However, some commenters, including chain-saw and chain-saw accessory manufacturers, said OSHA should include performance requirements for chain saws in the final standard rather than specification requirements (Ex. 5-4, 5-8, 5-13, 5-15, 5-26, 5-37, 5-59). Many of these commenters supported incorporating by reference the American National Standards Institute (ANSI) B175.1-1985 standard on "Safety Requirements for Gasoline Powered Chain Saws" (Ex. 5-4, 5-8, 5-13, 5-15, 5-26, 5-37, 5-59). The ANSI standard specifies a performance criteria for manufacture and testing of chain saw safety features, such as protection from chain-saw kickback. One commenter summed up their rationale:
[T]he Status Report on Chain Saw Related Hazards since the 1985 Revision to The Voluntary Standard ANSI B175.1, which was prepared for the Consumer Product Safety Commission in March of this year, is a testimonial to the fact that the reduction in chain saw injuries is the result of adherence by manufacturers to the voluntary standard. There truly is little to be said in defense of OSHA when it chooses to knowingly ignore the demonstrated success of the chain saw voluntary standard, which equates compliance with the use of a combination of devices, in favor of an arbitrary and inexpert agency decision to the effect that one specific device, in and of itself, is superior to any other device or combination of devices permitted by the standard (Ex. 5-4).
These commenters stated that OSHA would create "confusion in the marketplace" if OSHA adopted requirements that were significantly different from the ANSI chain-saw standard that all manufacturers have been voluntarily following (Ex. 5-4).
Other commenters, however, opposed incorporating the ANSI standard in the final rule (Ex. 5-27, 5-48; Tr. OR 118). These commenters said the ANSI standard was developed to protect consumer chain-saw users, not professional loggers:
The ANSI B175.1 Standard was developed from an injury data base that was consumer based and therefore its direct application to pro-logging may not be justified (Ex. 5-27).
Two commenters said that ANSI standards were not known to most loggers, were not readily available, and were not written in language that the average logger would comprehend (Ex. 5-27; Tr. OR 118). One of these commenters said OSHA, therefore, should put its requirements in the standard rather than requiring logging employers to obtain and read another document (Tr. OR 118). He added that placing the requirements in the regulatory text would increase compliance.
As discussed above, many commenters supported a requirement that all chain saws be equipped with chain brakes rather than just referencing the ANSI standard. In general, these commenters said chain brakes were the most effective device to protect operators from kickback and to provide extra protection when the saws are carried between cutting jobs. In addition, one commenter supported a chain brake requirement for the following reason:
The U.S. should follow the lead of other countries (European) and require that all saws have an operating chain brake if purchased after the adoption of these regulations. The cost would be minimal since the majority of saws now come equipped with these devices. This would also help deter the disabling of the brake system by operating personnel (Ex. 5-19).
OSHA agrees with commenters that the final standard should include requirements on chain-saw protective devices. The final rule does incorporate by reference the ANSI B175.1 consensus standard, but the Agency believes that the ANSI standard alone does not provide the necessary degree of safety for logging employees. Accordingly, for several reasons, the final rule also requires that chain saws placed into initial service after the effective date of the standard be equipped with chain brakes. First, there is considerable evidence in the record that chain brakes are effective and the most used device to prevent kickback. Second, they have strong acceptance by logging professionals, and as a result, already are standard equipment on almost all chain saws currently manufactured. Third, chain brakes do not have the disadvantages of the other protective devices. For example, unlike bar tip guards, chain brakes are not removed by operators. Unlike reduced-kickback guide bars and low- or reduced-kickback chains, chain brakes do not affect production efficiency. Fourth, other countries also have adopted provisions requiring chain saws to be equipped with chain brakes (Ex. 5-19).
Fifth, OSHA agrees with commenters who are concerned that, in order to maximize compliance, the standard be comprehensible to the average loggers. This is especially important for chain-saw safety, since many employees provide their own chain saws. These employees and their employers need plain and simple direction about what protection must be provided for each chain-saw operator. OSHA does not believe that the ANSI standard contains the type of information needed by those operating the chain saw. It requires the use of sophisticated equipment and exacting procedures that are beyond the expertise of the average logging employer. Much of the ANSI standard deals with a computer program for simulating chain-saw kickbacks and tests to determine the accuracy of the computer program. As such, the ANSI standard is primarily directed to manufacturers of chain saws, rather than employers and employees in the logging industry. For example, the standard states:
The purpose of this standard is to establish minimum safety requirements with respect to the manufacture of portable, hand-held, gasoline-powered chain saws (Ex. 4-66).
The requirements of the ANSI standard are primarily within the unique purview of manufacturers, such as requirements for the throttle control system, handles, pull-type starters, fuel tanks and oil tanks, exhaust systems, sound levels, and vibration. Only the following requirements are directed at the employer:
It shall be the responsibility of the owner to maintain the chain saw in accordance with the instructions in the owner's manual.
Chain saws shall be used in accordance with the operating instructions and safety precautions listed in the owner's manual. It shall be the responsibility of the owner to see that such instructions and precautions are given to every operator who uses the saw (Ex. 4-66).
In addition, the ANSI standard does not require the employer to ensure that each chain saw used in their workplace is equipped with kickback protection. That is, the ANSI standard does not require the employer to ensure that kickback prevention devices are not removed or disabled by operators. By specifying that chain saws used by logging employees be equipped with chain brakes, OSHA emphasizes that responsibility for compliance with OSHA standards rests with the employer, not the manufacturer or the employee.
In order to retain flexibility in the final rule, OSHA is requiring chain saws placed in service after the effective date of this standard to be equipped with chain brakes or other protective device that prevents or minimizes kickback. OSHA notes that whatever kickback device is present, the final rule requires that it not be removed or otherwise disabled.
7. "Operator manuals or instructions." In the hearing notice OSHA raised two issues regarding operator manuals or instructions (referred to collectively as instructions) for machines: the location of instructions, and the experience of employers in obtaining manuals from manufacturers.
a. "Location of operator manuals or instructions." Both the existing pulpwood standard and the proposed standard contained provisions requiring either an operator's manual or set of instructions be kept with each machine. In addition, both stated that the instructions, at a minimum, must describe the operation, maintenance and safe practices for the machine. The proposed standard added a provision requiring each operator and maintenance employee to comply with the manual.
All commenters generally agreed with the need to have instructions available to operators and maintenance personnel. Several hearing participants supported OSHA's proposal to require instructions to be kept with machines (Tr. W1 201, OR 168, 194). For example, one participant stated:
We urge OSHA to require that operator manuals be kept on the machine. Operator manuals contain important personal safety and machine operational information which must be utilized during training and must be available for reference to assure safety for all different operating conditions.
Efficient and productive logging operations go hand in hand with safe work practices and proper machine maintenance and operation. Ready and immediate access to safety and operational information is essential to minimize downtime caused by accidents (Tr. OR 168).
Another commenter added that once instructions are placed back at the office, they are not used:
Ms. Schuster: I just have one question. Do you have any idea of the percentage of equipment out there in the woods that does not currently have operator's manuals available? Mr. Carr: I'm afraid I'd have to agree, most of them probably do not.
This is our concern as manufacturers that most of them do not. Most of the time they have taken them and put them in the office and that's the last they see of them.
Mr. Schuster: You say most of them would have put them in the office. Would you say that many of them do have them available though somewhere, if not on the equipment? Mr. Carr: If somebody can find it (Tr. OR 194).
Many commenters, however, stated that for several reasons instructions should not be kept with machines or instead should be distributed as part of the training program (Ex. 5-12, 5-34, 5-35, 5-67, 9-2, 9-3, 9-4, 9-5, 9-19, 9-22; Tr. W1 66, 134, 185, 235, W2 225, OR 31, 59, 263, 378, 629). First, these commenters said instructions kept with machines would be damaged or destroyed. They stated that instructions would be subject to vandalism or would disappear if kept with machines or vehicles. They also said instructions would become dirty or be destroyed due to adverse weather in which machines and vehicles are operated. As a result, these commenters stated that they store operator instructions at the company office, in the crew transport vehicles or at the work site.
Second, several commenters said that it was not necessary to keep instructions with machines because they have limited utility (Ex. 9-4; Tr. W1 134, 186, OR 80, 117, 378, 430, 629). Some of these commenters said instructions pertain primarily to maintenance of machines and scheduling of maintenance and, therefore, should be kept where the maintenance will be conducted. Other commenters said that instructions contain such general information about machine operation that their only utility is for someone who is unfamiliar with the operation of the machine. Instead, these and other participants said the manuals should be used in operator training sessions.
Third, some participants said that instructions are currently given to new employees to read as part of their orientation sessions (Tr. W1 66; OR 31, 263, 629). These participants also said that if operators need to refer routinely to instructions at the work site, they should not be allowed to operate the machine and should receive additional training rather than being allowed to rely on the instructions.
After reviewing the comments and testimony received, OSHA has decided in the final rule to require that operating and maintenance instructions be available on the machine or in the area where the machine is being operated, such as at the landing or in a crew transport vehicle located in the area where the machine is being operated. OSHA believes ready access to instructions is important for several reasons. As OSHA explained in the preamble to the proposed rule, instructions are necessary not only for maintenance personnel but also for operators who are unsure or unaware of safe operating procedures pose hazards to themselves and co-workers. Maintaining these materials in the immediate work area of the machine assures their availability and increases the likelihood of their use when needed by the operator.
OSHA also believes that instructions have utility for operators in specific circumstances. Instructions give the operator a ready reference source when a new or unique situation is encountered (e.g., operations on terrain where a combination of hazards are present, such as swampy, rocky or loose ground). If unusual problems or emergencies requiring prompt correction arise during operation, the instructions provide the operator with correct information to resolve the problem rather than guessing about a solution. In addition, some machine operators perform their own maintenance. By keeping instructions on the machine or in the immediate work area, these operators can quickly deal with maintenance issues as they arise. Therefore, OSHA believes that instructions are useful for the operator only when they can be immediately accessed rather than being housed at an office that may be miles from the work area or maintenance area.
OSHA also agrees with commenters who said that if instructions are not kept in the work area of the machine they will not be used. OSHA is concerned that if instructions are not in the area where the machine is being operated, operators will be discouraged from stopping production to go get the instructions. Instead, employees will decide to "take their chances" in dealing with unusual problems or emergencies, which could result in serious injury.
With regard to the issue of weather damage to instructions which are kept on the machine or in the machine work area, OSHA notes that a hearing participant pointed out that in recent years, manufacturers have been providing weather-resistant instructions which may be kept with machines (Tr. OR 205). Moreover, it should not be overly difficult for an employer to place the instructions in a weather-proof bag to keep them with the machine.
OSHA does agree with commenters' position that if an operator must routinely refer to instructions in order to operate a machine or vehicle, additional training or supervision is necessary. The final rule does provide such additional training for that operator. However, there may well be instances in which the employee may need to consult the manual in order to deal with a problem that arises during the use of the equipment. For that reason, the instructions should be immediately available to employees. Therefore, OSHA is requiring in this final rule that instructions be maintained in the immediate work area of the machine so they will be available both to the machine operator and to maintenance personnel.
b. "Obtaining operator manuals or instructions." In the hearing notice OSHA also requested employers to discuss their experience with trying to obtain operating instructions or replacement instructions from dealers and manufacturers. OSHA wanted to gather information on the number of machines that come with instructions and on the degree of ease in obtaining replacement instructions. Very few participants commented in this issue.
One hearing participant said that manufacturers do provide instructions with new equipment, but used machines that are sold may have no instructions (Tr. OR 31). However, two hearing participants said that replacement instructions are available either from the manufacturer or the dealer, and therefore, they have had no more difficulty in obtaining instructions than in acquiring any machine replacement part (Tr. W1 201, OR 197).
OSHA therefore believes that the requirement that instructions for machine be maintained will not be burdensome for employers, even where employers must obtain replacement copies from the manufacturer.
8. "Riders." In the hearing notice OSHA requested comment on whether trainers should be permitted to ride on machines to observe operator performance. The pulpwood logging standard prohibited riders or observers from riding on machines unless seating and other protection were provided. The proposed standard continued that prohibition.
Many commenters supported the current and proposed prohibition of riders on machines (Ex. 5-7, 5-22, 5-42, 9-3, 9-13, 9-18; Tr. W1 202, 205, 235, W2 227, OR 155, 169). These commenters said riders should be prohibited, unless protection is provided since they are exposed to the same hazards as machine operators, for whom seating, seat belts and other protection is required. NIOSH, for example, supported the prohibition for the following reasons:
Many logging operations occur on rough terrain which would expose any rider to a high risk of injury or death. Serious errors made by a trainer or trainee under these conditions endangers both people; it must be recognized that logging equipment is not designed for training purposes (i.e., the trainer cannot take control of the equipment from the trainee in a safe, orderly fashion) (Ex. 5-42).
NIOSH therefore recommended that training be conducted and completed in pre-worksite training where the environment can be "controlled" instead of the employer conducting "on-the-job" training with machines that are not designed to carry passengers safely. Another commenter agreed that the necessary operator training should be given, and the operator should be afforded the opportunity to practice on level ground, before the operator moves into work areas. This training and practice would allow operators to become proficient without requiring trainers to ride on the machines (Tr. OR 155).
Two commenters, including one who supported the exemption for trainers, stated that it was not absolutely necessary to have the trainer riding on the machine in order to maintain communication with the machine operator (Ex. 5-27; Tr. W2 227). They said communication could be accomplished through radio contact (one-way or two-way radios), thus allowing the trainer to remain in a safe location on the ground. One of the commenters pointed out that this method is currently used in logging operations in Scandinavian countries (Tr. W2 227).
Many commenters supported an exception permitting trainers to ride on machines (Ex. 5-12, 5-22, 5-28, 5-36, 5-45, 5-49, 5-53, 5-54, 5-55, 5-63, 5-74 through 5-92, 9-2, 9-5, 9-10, 9-13, 9-19; Tr. OR 32, 201, 206, 337). These commenters said that an exemption be allowed because trainers were not as great since they ride for only short periods and, therefore, they are not exposed to hazards to the same extent as machine operators. However, several commenters said that if instructors were permitted to ride on machines that at least seat belts should be required and training should be conducted on level terrain (Ex. 5-27, 9-3, 9-13; Tr. OR 169). Another commenter said that trainers should not be permitted to ride on machines during actual production because "such conditions may not be conducive to rider safety" (Ex. 5-54).
Other commenters said the exemption should include other employees in addition to training (Ex. 5-27, 9-2; Tr. OR 206). One commenter supported expanding the exception to allow mechanics to ride on machines (Tr. OR 206). Another commenter said that the exception should be permitted for large multi-purpose logging equipment where there is sufficient room in the enclosed operator cab to permit another person to ride safely, even though there is not a second seat (Ex. 5-27). One commenter said fellers should be permitted to ride back to the landing at the end of the workshift (Ex. 9-2). However, none of these commenters provided any evidence that these riders were not exposed to the same hazards as the machine operator.
OSHA has carefully considered all comments and data in the record. OSHA agrees with the commenters that riders face the same hazards as machine operators on moving equipment and that they need protection equivalent to that of the operator. According to logging fatalities reported to OSHA between 1985-90, there were reports of riders killed when machines roll over (Ex. 4-65). The OSHA FCI report also indicated that loggers have been killed riding on unauthorized parts of machines (Ex. 4-61). Even those who opposed the prohibition on riders recognized that such an activity is hazardous due to conditions of the work environment, such as unlevel terrain. In addition, the record indicates that an exemption for trainers is unnecessary because other methods of communication between the trainee and trainer are available and in use in the logging industry. As such, OSHA has retained the requirement in the final standard that machines must have passenger protection equivalent to operator protection if the employer allows riders on machines.
9. "Equipment protective devices." In the hearing notice OSHA raised two issues regarding protective devices for machines: the need and cost of retrofitting machines with rollover protective structures (ROPS) and falling object protective structures (FOPS), and the appropriateness of incorporating various consensus standards covering ROPS and FOPS into the logging standard by reference.
a. "Retrofitting." In the hearing notice OSHA requested comment on whether the final standard should require machines without ROPS and FOPS to be retrofitted with those devices. The proposed standard would not have required retrofitting. In the proposed standard, OSHA specified that certain machines placed in service after the effective date of the final standard to be equipped with ROPS and/or FOPS meeting Society of Automotive Engineers (SAE) minimum performance criteria.
There was no opposition from commenters on the general requirement that certain machines used in logging operations be equipped with ROPS and/or FOPS. NIOSH stated that 80 deaths occurred due to logging machine rollovers from 1980-85 (Ex. 5-42). This is approximately 13 deaths each year due to rollover accidents. Another commenter cited a study where 12 loggers were killed in rollover accidents in the State of Washington from 1977-83 (Tr. W1 27).
Several commenters said that machines without ROPS and FOPS should be retrofitted (Ex. 5-42, 5-54, 9-3, 9-13; Tr. W1 22). The West Virginia Forestry Association safety committee said that retrofitting was necessary because operators were exposed to "extreme danger" if machines were used in the woods without such protective devices (Ex. 5-54). In addition to the safety necessity of retrofitting, the committee said that retrofitting was economically feasible for the industry as whole.
Many commenters, on the other hand, while supporting ROPS and FOPS requirements for new machines, opposed retrofitting older machinery (Ex. 5-19, 5-22, 5-25, 5-27, 5-33, 5-53, 5-57, 5-74 through 5-92, 9-5, 9-17; Tr. W1 203, OR 170). Their opposition was based on several reasons.
First, commenters said that machines should not be required to be retrofitted to meet current standards when the installed ROPS and/or FOPS met industry standards in effect at the time of manufacture (Ex. 5-22; Tr. W1 203, OR 170). One commenter said that older machines in the logging industry were equipped with rollover protection, but those machine structures still in service do not meet the revised industry standards (Ex. 5-22).
Second, some commenters said that retrofitting machines would be very burdensome and costly, especially given the limited useful life of such machines (Ex. 5-74 through 5-92, 9-5). They said retrofitting would be expensive because it would require complete rebuilding and testing of the frame structure. These commenters also said that employers would have to hire outside contractors to test the retrofitted equipment since most employers did not have the personnel, expertise or equipment to install and test protective structures (Ex. 5-35). In addition, other commenters said that the retrofitting requirement would be too burdensome for small employers, both in terms of absorbing the cost in small operations and in finding persons who could do the retrofitting (Tr. OR 119, 263, 307).
Third, commenters indicated that the retrofitting requirement was not essential since most of the machines specified in the proposed standard already are manufactured with ROPS and FOPS as standard equipment (Tr. W1 184, 203, OR 170). For example, most log-skidders manufactured after 1974 have ROPS and FOPS meeting the performance criteria specified by the Society of Automotive Engineers (SAE). Most mobile equipment used in the Southeastern United States already has ROPS or FOPS (Ex. 5-19). Other commenters said that skidders now come with fully enclosed cabs (Tr. W1 184).
After consideration of all the comments and information received in the rulemaking record, OSHA has decided for several reasons not to require machines placed into service before the effective date of this standard to be retrofit with ROPS and FOPS, provided that ROPS and FOPS have not been removed from machines so equipped at the time of manufacture. First, OSHA has determined that many of the machines currently in use already have protective structures meeting various performance criteria. The final standard requires that these protective structures continue to be maintained throughout the useful life of the machine, and that they be replaced where they have been removed (e.g., removed after machine accident).
Second, many machines currently in use and virtually all machines recently manufactured meet the performance criteria specified in the proposed standard (Ex. 9-2; Tr. OR 185-87). OSHA believes that older machines, that either do not have protective structures or have ROPS and FOPS meeting earlier standards, are few in number and are rapidly nearing the end of their useful life. As such, OSHA believes that most employers are substantially in compliance with the requirement for machine protective structures and will reach full compliance in short period of time. Therefore, OSHA determines that compliance with the protective structure requirement can be achieved without requiring retrofitting.
b. "Incorporation of standards by reference." In the hearing notice, OSHA requested comment on the appropriateness of incorporating by reference updated consensus standards governing machine protective devices. In the proposed standard OSHA required ROPS and FOPS to be installed, tested and maintained in accordance with the following SAE national consensus standards: SAE 1040c June 1979 "Performance Criteria or Rollover Protective Structures (ROPS) for Construction, Earthmoving, Forestry, and Mining Machines" and J231 Jan 1981 "Minimum Performance Criteria for Falling Object Protective Structures (FOPS)." The SAE ROPS standard was updated in 1988 as was the SAE standard on "Deflection Limiting Volume-ROPS/FOPS Laboratory Evaluation."
Several commenters discussed incorporation of updated standards (Ex. 5-10, 5-22, 5-57, 9-3, 9-13; Tr. W1 203). Most emphasized the need to reference the most up-to-date standards in the final rule. In addition, two commenters said OSHA should allow the use of standards from other standards producing bodies, such as the International Organization for Standardization (ISO) (Ex. 5-22, 5-57). Two commenters also recommended that OSHA harmonize its regulatory language with ISO and Mine Safety and Health Administration protective structure standards (Ex. 5-10, 5-22). However, two commenters opposed incorporation by reference because they contend that other standards may not have followed the same notice and public comment rules as do OSHA standards (Ex. 9-3, 9-13).
OSHA has considered the comments and in the final standard the Agency has decided to incorporate by reference the current SAE standards on ROPS and FOPS. While there was some comment about whether technical publications should be referenced in standards, OSHA believes it is better in this case to reference technical documents rather than spell out all of the many specifications the documents contain. Since the final standard is not requiring employers to retrofit machines, it is more important for employers to know that new machines they purchase meet the SAE standards. It is the manufacturer and not the employer who will have the expertise, personnel and equipment to do the necessary installation and testing of the protective structures as part of the manufacturing process, and it is the label of conformance placed on the equipment by the manufacturer that will be the method that the employer will usually use to demonstrate compliance with the protective structures requirement of the final standard.
10. "Manual felling." The hearing notice raised two issues regarding manual felling: should exceptions to the undercut requirement be allowed, and where should the backcut be required to be made? a. "Undercut requirement." The proposed standard included a provision requiring each manually felled tree to be undercut. This provision also required that undercuts be of a size to guide the tree fall in the intended direction and to minimize the possibility of splitting. The purpose of this provision was to prevent trees from splitting, kicking back, or falling in an unintended direction, thereby injuring an employee.
Some commenters supported the proposed requirement (Ex. 5-42, 9-15; Tr. OR 485-88). One commenter said:
[Undercutting] helps protect the feller from the butt of the tree riding back up the sawn notch and springing backwards over the stump towards him if the tree is felled uphill, or strikes something during its fall that pushes [the tree] backwards (Ex. 9-15)
However, other commenters said OSHA should revise the undercut requirement in the final rule (Ex. 5-21, 5-39, 5-46, 5-52, 5-63, 5-74 through 5-92, 9-1, 9-5; Tr. OR 265, 284-88, 324-26). One commenter said OSHA should make undercutting a recommended practice in the final rule to allow for innovations in cutting techniques and to allow for consideration of various production requirements for cutting certain types of wood (e.g., veneer).
Other commenters stated that OSHA should permit an exception to the undercut requirement for manual felling of saplings or unmerchantable trees, that is, of trees with a small diameter at breast height (DBH) (Ex. 5-21, 5-39, 5-46, 5-63, 5-74 through 5-92, 9-1, 9-5; Tr. OR 265, 284-88, 324-26). These commenters said that the hazards OSHA was attempting to protect against do not exist for saplings, therefore, undercuts are not necessary. For example, Mr. Alex Hanson, of AOL, stated:
On the smaller, nonmerchantable timber that's two, three, four, five, six inches, generally not very tall, 20 foot or less or maybe taller, and when you slash it, you push it over. It doesn't need a face to control the direction of fall.
* * * * *
[W]hen trees start getting to be merchantable size, then you have safety problems. You get a seven inch or over tree, you want to know where it's going. You don't want to have it just fall anywhere.
* * * * *
[Y]ou have to buck those merchantable trees. You have to cut the top out so you just don't want them going everywhere. You want things in line. And if they're everywhere, then it increases the risk for the buckers. Generally it's the same guy who is falling it, but you want to have things in an orderly fashion so that he's not having to go everywhere to buck the top. If they're just slashing it, it doesn't really matter where it goes because you're not having to go out there and limb and cut the tops out and create another hazard for yourself (Tr. OR 265, 284-88).
However, other commenters disagreed with AOL about what size tree requires an undercut. One commenter said that undercuts are necessary for any tree that has more than a three-inch base (Ex. 9-16), while another commenter said undercuts were not necessary for trees with a seven-inch DBH (Tr. OR 421-22).
The APA, however, said that even trees with a small DBH should be undercut:
You heard from one of the associations who is recommending that with regard to what I call undercuts, they're also called face cuts, that they not be required on very small trees, and there was a discussion and possibly a recommendation of an 8-inch or 7-inch size limit. Unfortunately, I don't have any data. But we do know and I will watch to see if I can find any and submit it post hearing. I went through our files and could not find anything. But it is our perception, after studying these operations, that a tree that's 8 inches in diameter at breast height is probably about 12 inches in diameter at the stump, and whether it's an oak tree or a Douglas fir tree that's 60 feet tall and 8 inches and 12, it's a significant mass of wood that is difficult to control to get on the ground and could cause and probably has caused injuries and maybe even deaths. There's enough mass there with a 60-foot tree ripping down, uncontrolled in its fall, to cause a death. And you heard from the Montana folks, that they have a little bit of a problem with that too (Tr. OR 485-88).
Moreover, some commenters opposing the undercut requirement also admitted that undercuts were necessary for any merchantable tree, regardless of its size. They said that whenever a tree has a merchantable stem for a sawlog product, it must be undercut to protect the fiber recovery (Tr. OR 422, 487-88). They said undercutting was essential both for production reasons and safety considerations for employees bucking the felled tree.
After considering the evidence in the record, OSHA believes a provision requiring that each tree manually felled be undercut is necessary to protect employees from injury. According to the WIR survey, four percent of employees injured said they had been using the wrong cutting method at the time of their accident (Ex. 2-1). The OSHA FCI report indicated that 10 fellers were injured because of misjudgments in cutting the tree (Ex. 4-61).
As discussed above, undercutting helps protect the feller from injury by reducing the potential for the tree splitting and falling in an unintended direction or kicking back towards the feller. In the final rule, OSHA is also allowing an exception to the undercutting requirement when the employer demonstrates that felling the particular tree without an undercut will not create a hazard for an employee. OSHA believes that when the hazards of splitting trees, tree kickback and misdirected falls are not present, it may be appropriate to manually fell a tree without undercutting. OSHA notes that the employer bears the burden of demonstrating that the hazards discussed in this section are not present. OSHA also notes that the employers cannot make a blanket determination that trees of a particular size never pose the hazards discussed above if manually felled without an undercut. The condition of the tree and the surrounding area may make manually felling even a small a tree hazardous if it is not first undercut. The tree and those conditions must be assessed on a case by case basis to determine whether felling the tree without making an undercut would create a hazard for an employee.
For two reasons, however, OSHA has decided against specifying an undercut exception for trees of a certain size. First, there is no agreement among the commenters on what size tree could be safely exempted from the undercutting requirement. There is evidence in the record, that manually felling trees of the size that some commenters say should be exempted from the requirement can pose a serious hazard to fellers (Tr. OR 265-69, 485-88). Also, while commenters agreed that unmerchantable trees did not require undercutting, none agreed on what size tree constituted an unmerchantable tree. The estimates of what sizes were considered to be merchantable trees varied greatly, from 3 to 10 inches DBH, depending on the type of wood being harvested (Ex. 5-46; Tr. OR 265, 485-88). And, as some commenters have pointed out, trees included in this range of sizes can pose hazards to fellers.
Second, some commenters said that any tree that is considered merchantable is undercut, even if it is within the range of sizes that commenters say should be exempted. According to commenters the undercut is also made in merchantable trees to prevent splitting of the product (Tr. OR 284-88). As such, undercutting may be done on small trees in any event.
OSHA does note that in many cases when trees are determined to be unmerchantable they are not manually felled but rather slashed by mechanical means (Tr. OR 265, 268-69, 285-87, 421-22). This provision on undercutting does not apply to trees felled by mechanical means.
b. "Backcut requirement." The second issue regarding manual felling on which OSHA requested comment was where backcuts should be required to be made. In the proposed standard, OSHA required that backcuts be made above the horizontal cut of the undercut. The 1978 ANSI logging and various State logging standards contain similar requirements (e.g., Ex. 38K).
Several commenters supported the proposed requirement (Ex. 5-42, 9-15). These commenters said a backcut above the horizontal cut is necessary to assure that the tree does not fall in an unintended direction.
However, other commenters said OSHA should permit backcuts to be at the same level or below the level of the undercut (Ex. 5-28, 5-29, 5-42, 5-52, 9-1; Tr. W2 229-31, OR 395-96, 421-24, 499-500). Some said that a same level backcut was more effective:
Backcuts should be made on the same level as the point of the notch of the undercut. The hinge is what keeps the tree from kicking back, not the fact that the backcut is higher than the undercut. High backcuts run the risk of cutting off the hinge, actually increasing the danger of kickback (Ex. 5-52).
Other commenters said that backcuts above the horizontal cut were not as critical when using the Humboldt undercutting method (Ex. 5-42, 9-15). They said that when the slanting cut of the undercut is angled downward, the tree is more likely to fall in the intended direction without kicking back. However, one of these commenters admitted that placing the backcut at the same level as the horizontal cut when using the Humboldt undercut method sacrificed safety for quality control:
Quality control concerns with several companies dictate that only Humboldt undercuts are permissible with sawlog grade timber, so that wood loss is minimized by taking the notch wood out of the stump. Quality control often dictates that there must be a flush surface on the end of the log. To avoid having to make another cut to square up a log butt, fallers will attempt to make their backcuts meet the horizontal face cut as closely as possible. By doing this, they sacrifice the safety of the step that would have been left on the stump to catch a possible backwards-moving tree butt, and depend only on the downward-slanting face on the stump to hold the tree (Ex. 9-15).
Two commenters said the backcut requirement should be limited to those situations when tree kickback is a problem, which they contended was only on steep terrain, when felling uphill or through trees (Ex. 9-1, 9-4). Other commenters said that believed that the standard should provide more flexibility because variations frequently found on logging sites, such as lean of the tree and type of terrain, would make strict adherence to the regulation difficult (Ex. 5-19, 9-9, 9-22; Tr. OR 206-7, 395-96). These commenters said that the cutting decisions should be left to the judgment of the experienced feller.
After reviewing the evidence in the record, OSHA has decided that the proposed backcut provisions are necessary to protect fellers from being hit or crushed by the tree they are felling. As discussed above, the record shows that injuries and fatalities have occurred because of improper cutting methods. The purpose of undercutting and backcutting trees is to prevent the tree from splitting, felling an unintended direction or kicking back into the feller. OSHA agrees with ANSI and the various State plan States that the proposed backcut provisions are necessary to protect employees against these hazards.
OSHA does not agree that backcutting should be limited only to those situations when tree kickback can occur. The record shows that hazards other than tree kickback necessitate the backcut requirement. Without appropriately-placed backcuts, trees are more likely to split and/or fall in an unintended direction. While OSHA agrees that it is more likely that this could happen when trees are felled uphill, OSHA also believes the record shows that the possibility exists regardless of the terrain. According to the WIR survey, the single largest cause of injuries reported was being hit by a falling tree (Ex. 2-1). Almost one-half of all injuries reported were due to employees being hit or crushed by a falling tree.
In the final rule OSHA has provided an exception to the backcut requirement. The final rule allows the backcut to be placed at or below the horizontal cut in tree pulling operations. Various State logging standards also provide this exception to the backcut requirement (e.g., Ex. 38K). OSHA believes this exception covers those situations in which a special cutting technique may be required, such as by Federal agencies.
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