Court Reviews New Fall Protection Rule in Challenge

By Bruce Rolfsen

A federal appeals court has been asked to review OSHA’s new fall protection rule for general industry that covers about 112 million workers ( Corp. Cleaning Serv. Inc. v. OSHA, 7th Cir. App., No. 16-4244, 12/27/16 ).

The rule takes effect Jan. 17, though some compliance deadlines are delayed.

Corporate Cleaning Services Inc., a Chicago company specializing in high-rise window washing, is requesting the court review. The petition for review was filed Dec. 27 with the U.S. Court of Appeals for the Seventh Circuit in Chicago.

The company supports the majority of the fall protection provisions of OSHA’s new fall protection rule, the firm’s attorney, Nora Flaherty of Burke, Warren, MacKay & Serritella PC, told Bloomberg BNA Dec. 30.

Corporate Cleaning is seeking review of a single provision, 29 C.F.R. 1910.27(b)(2)(i), which concerns rope descents at heights over 300 feet. The company is challenging the 300-foot provision because it is based on misinformation received by OSHA several years ago, Flaherty said.

Specifically, Flaherty said, the company believes OSHA shouldn’t have relied on an obsolete 2001 American National Standards Institute (ANSI) voluntary standard, ANSI/IWCA I–14.1–2001 Window Cleaning Safety.

The committee that drafted the rule was made up of members who had a vested interest in the design, manufacture and use of scaffolding or swing stage equipment, Flaherty said.

OSHA was unaware of many of the problems because they didn’t come to light until after OSHA completed its hearing in January 2011, Flaherty said.

The OSHA rule includes a note from the agency that the voluntary standard was withdrawn by ANSI in October 2011. The note also says that OSHA rejected a union’s complaint about the makeup of the ANSI committee because the panel was accredited by ANSI at the time and the 2001 standard was approved by ANSI.

Updates 45-Year-Old Rule

The fall protection rule (81 Fed. Reg. 82,494) updates the 45-year-old walking-working surfaces standards (29 C.F.R. 1910 Subpart D) and the personal protective equipment standards (29 C.F.R. 1910 Subpart I) by taking into account changes to safety practices and gear made since 1971.

The rulemaking began in 1990 during the first Bush administration and went through two hearings and three comment periods before the final rule was issued Nov. 18.

Because the rule (RIN:1218-AB80) will take effect late in the Obama administration and has implementation costs of more than $100 million annually, the rule could face review by the Trump administration and the next Congress under the provisions of the Congressional Review Act.

Ira Levin and Nora Flaherty of Burke, Warren, MacKay & Serritella PC in Chicago represent Corporate Cleaning Services.

To contact the reporter on this story: Bruce Rolfsen in Washington atBRolfsen@bna.com

To contact the editor responsible for this story: Larry Pearl atlpearl@bna.com

For More Information

The petition for review is available at http://src.bna.com/k4D.

The rule is available at http://src.bna.com/k4C.

Copyright © 2017 The Bureau of National Affairs, Inc. All Rights Reserved.

Reproduced with permission from Occupational Safety & Health Reporter 47 OSHR 14 (Jan. 5, 2017). Copyright 2017 by The Bureau of National Affairs, Inc. (800-372-1033) <http://www.bna.com>

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